I M A Lawyer

2009 Bar Questions - LEGAL ETHICS AND PRACTICAL EXERCISES

2009-10-16T21:00:00.000-07:00

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The Bangalore Draft, approved at a Roundtable Meeting of Chief Justices held at The Hague, is now the New Code of Judicial Conduct in the Philippines.
An attorney ad hoc is a lawyer appointed by the court to represent an absentee defendant in a suit in which the appointment is made.
A charging lien, as distinguished from a retaining lien, is an active lien which can be enforced by execution.
A lawyer cannot refuse to divulge the name or identity of his client.
A notary public is disqualified from performing a notarial act when the party to the document is a relative by affinity within the 4th civil degree.

What is the object of the bar examinations? Explain. (2%)
What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each briefly. (3%)

III

May a party appear as his own counsel in a criminal or in a civil case? Explain. (3%)
What is the student practice rule? (2%)

In a case for homicide filed before the Regional Trial Court (RTC), Presiding Judge Quintero issued an order for the arrest of the accused, granted a motion for the reduction of bail, and set the date for the arraignment of the accused. Subsequently, Judge Quintero inhibited himself from the case, alleging that even before the case was raffled to his court, he already had personal knowledge of the circumstances surrounding the case. Is Judge Quintero’s inhibition justified? Explain. (3%)
After being diagnosed with stress dermatitis, Judge Rosalind, without seeking permission from the Supreme Court, refused to wear her robe during court proceedings. When her attention was called, she explained that whenever she wears her robe she is reminded of her heavy caseload, thus making her tense. This, in turn, triggers the outbreak of skin rashes. Is Judge Rosalind justified in not wearing her judicial robe? Explain. (3%)

Cliff and Greta were law school sweethearts. Cliff became a lawyer, but Greta dropped out. One day, Cliff asked Greta to sign a marriage contract. The following day, Cliff showed Greta the document already signed by an alleged solemnizing officer and two witnesses. Cliff then told Greta that they were already married and Greta consented to go on a honeymoon. Thereafter, the couple cohabited and begot a child. Two years later, Cliff left Greta and married a Venezuelan beauty. Incensed, Greta filed a disbarment complaint against Cliff. Will the case prosper? Explain. (4%)

Atty. Sabungero obtained a notarial commission. One Sunday, while he was at the cockpit, a person approached him with an affidavit that needed to be notarized. Atty. Sabungero immediately pulled out from his pocket his small notarial seal, and notarized the document. Was the affidavit validly notarized? Explain. (3%)

VII

Atty. Manuel is counsel for the defendant in a civil case pending before the RTC. After receiving the plaintiff’s Pre-Trial Brief containing the list of witnesses, Atty. Manuel interviewed some of the witnesses for the plaintiff without the consent of plaintiff’s counsel.

Did Atty. Manuel violate any ethical standard for lawyers? Explain. (3%)
Will your answer be the same if it was the plaintiff who was interviewed by Atty. Manuel without the consent of plaintiff’s counsel? Explain. (2%)

VIII

Court of Appeals (CA) Justice Juris was administratively charged with gross ignorance of the law for having issued an order "temporarily enjoining" the implementation of a writ of execution, and for having issued another order for the parties to "maintain the status quo" in the same case. Both orders are obviously without any legal basis and violate CA rules. In his defense, Justice Juris claims that the challenged orders were collegial acts of the CA Division to which he belonged. Thus, he posits that the charge should not be filed against him alone, but should include the two other CA justices in the Division. Is the contention of Justice Juris tenable? Explain. (3%)

Alexander Sison, resident of 111 Libertad St., Sampaloc, Manila, engages your services as lawyer. He tells you that a certain Mr. Juan Jamero of 222 Juan Luna St., Tondo, Manila, owes him P1,000,000.00; that the debt is long overdue; and that, despite repeated demands, Jamero has failed to comply with his obligation. He also shows you a promissory note, executed on January 3, 2008, wherein Jamero promises to pay the amount of P1,000,000.00, with 12% interest per annum, within one (1) year from date of note. Sison agrees to pay you attorney’s fees in the amount of P75,000.00, and a fee of P3,000.00 for every appearance in court.

As Sison’s lawyer, prepare the complaint that you will file in court against Juan Jamero. (10%)

Given the same facts in No. IX above, assume that summons had been served on Jamero, but no responsive pleading was filed within the reglementary period.

Prepare a motion to declare Jamero in default. (4%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The duty of a lawyer to his client is more paramount than his duty to the Court.
It is ethical for a lawyer to advise his client to enter a plea of guilty in a criminal case if the lawyer is personally convinced that he cannot win the case for his client.
There is no presumption of innocence or improbability of wrongdoing in an attorney’s favor when he deals with his client concurrently as lawyer and as businessman.
The satisfaction of a judgment debt does not, by itself, bar or extinguish the attorney’s liens, except when there has been a waiver by the lawyer, as shown by his conduct or his passive omission.
A companion or employee of the judge who lives in the judge’s household is included in the definition of the "judge’s family."

XII

Write the complete text of the attorney’s oath. (5%)

XIII

Atty. Hyde, a bachelor, practices law in the Philippines. On long weekends, he dates beautiful actresses in Hong Kong. Kristine, a neighbor in the Philippines, filed with the Supreme Court an administrative complaint against the lawyer because of sex videos uploaded through the internet showing Atty. Hyde’s sordid dalliance with the actresses in Hong Kong.

In his answer, Atty. Hyde (1) questions the legal personality and interest of Kristine to institute the complaint and (2) insists that he is a bachelor and the sex videos relate to his private life which is outside public scrutiny and have nothing to do with his law practice.

Rule on the validity of Atty. Hyde’s defenses. (5%)

XIV

Marlyn, a widow, engaged the services of Atty. Romanito in order to avert the foreclosure of several parcels of land mortgaged by her late husband to several creditors. Atty. Romanito advised the widow to execute in his favor deeds of sale over the properties, so that he could sell them and generate funds to pay her creditors. The widow agreed. Atty. Romanito did not sell the properties, but paid the mortgage creditors with his own funds, and had the land titles registered in his name. Atty. Romanito succeeds in averting the foreclosure. Is he administratively liable? Reasons. (3%)

Atty. Wilmar represented Beatriz in a partition case among heirs, and won. When Wilmar demanded payment of attorney’s fees, Beatriz refused to pay. Wilmar sued Beatriz for the unpaid attorney’s fees and obtained a favorable judgment. Thereafter, Beatriz filed an administrative complaint against Wilmar claiming that he lied when he stated in his claim for attorney’s fees that the subject of the partition case involved the entire estate of the deceased when, in fact, it covered only 50% thereof. Wilmar set up the defenses that (1) Beatriz filed the complaint only to delay the execution of the judgment ordering her to pay attorney’s fees and (2) Beatriz engaged in forum-shopping. Are the defenses of Atty. Wilmar tenable? Explain. (4%)

XVI

Atty. Simeon persuaded Armando, Benigno and Ciriaco to invest in a business venture that later went bankrupt. Armando, Benigno and Ciriaco charged Atty. Simeon with estafa. Simultaneously, they filed an administrative complaint against the lawyer with the Supreme Court.

If Simeon is convicted of estafa, will he be disbarred? Explain. (3%)
If Simeon is acquitted of the estafa charge, will the disbarment complaint be dismissed? Explain. (3%)

XVII

When Atty. Romualdo interviewed his client, Vicente, who is accused of murder, the latter confessed that he killed the victim in cold blood. Vicente also said that when he takes the witness stand, he will deny having done so. Is Atty. Romualdo obliged, under his oath as lawyer, to inform the judge that [a] his client is guilty and [b] his client will commit perjury on the witness stand? Explain. (4%)

XVIII

On a Saturday, Atty. Paterno filed a petition for a writ of amparo with the Court of Appeals (CA). Impelled by the urgency for the issuance of the writ, Atty. Paterno persuaded his friend, CA Justice Johnny de la Cruz, to issue the writ of amparo and the notice of hearing without the signature of the two other Justices-members of the CA division. Are Atty. Paterno and Justice de la Cruz guilty of unethical conduct? Explain. (4%)

XIX

Romeo Hacendero wants to authorize Juanito Ahente to sell, on cash basis, for a price not lower than P500,000.00, a parcel of land, situated in Muñoz, Nueva Ecija, and covered by Transfer Certificate of Title No. 123456, in the Register of Deeds of Nueva Ecija. Prepare a Special Power of Attorney granting such authority. (4%)

From the affidavits and the death certificate submitted during the preliminary investigation, the following facts are established: At 6:00 o’clock in the evening of September 13, 2009, at the corner of Dapitan and Dos Castillas Sts., Sampaloc, Manila, Edgar Bastonero, alias Bugoy, and Carlos Tirador, alias Pogi, accosted Johnny Escolar, a student, and demanded the latter’s cellular phone and wrist watch. Because Johnny resisted, Bastonero pulled out a knife and stabbed Johnny several times in the chest, causing instantaneous death. Bastonero and Tirador then ran away. The affidavits were executed by William Tan and Henry Uy, classmates of Johnny, who witnessed the entire incident. The death certificate was issued by Dr. Jose Cabra who conducted the autopsy on Johnny.

As Assistant City Prosecutor in Manila, prepare the appropriate criminal information to be filed in court. (10%)

-NOTHING FOLLOWS-

2009 Bar Questions - REMEDIAL LAW

2009-10-16T20:59:00.000-07:00

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The Vallejo standard refers to jurisprudential norms considered by the court in assessing the probative value of DNA evidence.
The One-Day Examination of Witness Rule abbreviates court proceedings by having a witness fully examined in only one day during trial.
A suit for injunction is an action in rem.
Under the doctrine of adoptive admission, a third party's statement becomes the admission of the party embracing or espousing it.
Summons may be served by mail.

Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the ownership and possession of two parcels of land; one situated in Pampanga, and the other in Bulacan.

May the action prosper? Explain. (2%)
Will your answer be the same if the action was for foreclosure of the mortgage over the two parcels of land? Why or why not? (2%)

III

Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC of Lipa City a Complaint for Rescission of Contract of Sale of Land against Brigido, a resident of Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in Barangay Talisay, Lipa City, has an assessed value of P19,700.00. Appended to the complaint is Amorsolo's verification and certification of non-forum shopping executed in New York City, duly notarized by Mr. Joseph Brown, Esq., a notary public in the State of New York.

Brigido filed a motion to dismiss the complaint on the following grounds:

The court cannot acquire jurisdiction over the person of Amorsolo because he is not a resident of the Philippines; (2%)
The RTC does not have jurisdiction over the subject matter of the action involving real property with an assessed value of P19,700.00; exclusive and original jurisdiction is with the Municipal Trial Court where the defendant resides; (3%) and
The verification and certification of non-forum shopping are fatally defective because there is no accompanying certification issued by the Philippine Consulate in New York, authenticating that Mr. Brown is duly authorized to notarize the document. (3%)

Rule on the foregoing grounds with reasons.

Pedrito and Tomas, Mayor and Treasurer, respectively, of the Municipality of San Miguel, Leyte, are charged before the Sandiganbayan for violation of Section 3 (e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). The information alleges, among others, that the two conspired in the purchase of several units of computer through personal canvass instead of a public bidding, causing undue injury to the municipality.

Before arraignment, the accused moved for reinvestigation of the charge, which the court granted. After reinvestigation, the Office of the Special Prosecutor filed an amended information duly signed and approved by the Special Prosecutor, alleging the same delictual facts, but with an additional allegation that the accused gave unwarranted benefits to SB Enterprises owned by Samuel. Samuel was also indicted under the amended information.

Before Samuel was arraigned, he moved to quash the amended information on the ground that the officer who filed the same had no authority to do so. Resolve the motion to quash with reasons. (3%)

Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding, Frank exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live with her parents. A year thereafter, Gina found employment as a domestic helper in Singapore, where she worked for ten consecutive years. All the time she was abroad, Gina had absolutely no communications with Frank, nor did she hear any news about him. While in Singapore, Gina met and fell in love with Willie.

On July 4, 2007, Gina filed a petition with the RTC of Manila to declare Frank presumptively dead, so that she could marry Willie. The RTC granted Gina's petition. The Office of the Solicitor General (OSG) filed a Notice of Appeal with the RTC, stating that it was appealing the decision to the Court of Appeals on questions of fact and law.

Is a petition for Declaration of Presumptive Death a special proceeding? Why or why not? (2%)
As the RTC judge who granted Gina's petition, will you give due course to the OSG's Notice of Appeal? Explain. (3%)

Arrested in a buy-bust operation, Edmond was brought to the police station where he was informed of his constitutional rights. During the investigation, Edmond refused to give any statement. However, the arresting officer asked Edmond to acknowledge in writing that six (6) sachets of "shabu" were confiscated from him. Edmond consented and also signed a receipt for the amount of P3,000.00, allegedly representing the "purchase price of the shabu." At the trial, the arresting officer testified and identified the documents executed and signed by Edmond. Edmond's lawyer did not object to the testimony. After the presentation of the testimonial evidence, the prosecutor made a formal offer of evidence which included the documents signed by Edmond.

Edmond's lawyer objected to the admissibility of the documents for being the "fruit of the poisoned tree." Resolve the objection with reasons. (3%)

VII

Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the presentation of plaintiff's evidence, Dioscoro died. Atty. Cruz, Dioscoro's counsel, then filed a motion to dismiss the action on the ground of his client's death. The court denied the motion to dismiss and, instead, directed counsel to furnish the court with the names and addresses of Dioscoro's heirs and ordered that the designated administrator of Dioscoro's estate be substituted as representative party.

After trial, the court rendered judgment in favor of Cresencio. When the decision had become final and executory, Cresencio moved for the issuance of a writ of execution against Dioscoro's estate to enforce his judgment claim. The court issued the writ of execution. Was the court's issuance of the writ of execution proper? Explain. (2%)

VIII

On July 15, 2009, Atty. Manananggol was served copies of numerous unfavorable judgments and orders. On July 29, 2009, he filed motions for reconsideration which were denied. He received the notices of denial of the motions for reconsideration on October 2, 2009, a Friday. He immediately informed his clients who, in turn, uniformly instructed him to appeal. How, when and where should he pursue the appropriate remedy for each of the following: (10%)

Judgment of a Municipal Trial Court (MTC) pursuant to its delegated jurisdiction dismissing his client's application for land registration?
Judgment of the Regional Trial Court (RTC) denying his client's petition for a Writ of Habeas Data?
Order of a Family Court denying his client's petition for Habeas Corpus in relation to custody of a minor child?
Order of the RTC denying his client's Petition for Certiorari questioning the Metropolitan Trial Court's (MeTC's) denial of a motion to suspend criminal proceedings?
Judgment of the First Division of the Court of Tax Appeals (CTA) affirming the RTC decision convicting his client for violation of the National Internal Revenue Code?

Modesto sued Ernesto for a sum of money, claiming that the latter owed him P1-million, evidenced by a promissory note, quoted and attached to the complaint. In his answer with counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note, but that it is Modesto who really owes him P1.5-million. Modesto filed an answer to Ernesto's counterclaim admitting that he owed Ernesto, but only in the amount of P0.5-million. At the pre-trial, Modesto marked and identified Ernesto's promissory note. He also marked and identified receipts covering payments he made to Ernesto, to the extent of P0.5-million, which Ernesto did not dispute.

After pre-trial, Modesto filed a motion for judgment on the pleadings, while Ernesto filed a motion for summary judgment on his counterclaim. Resolve the two motions with reasons. (5%)

Upon termination of the pre-trial, the judge dictated the pre-trial order in the presence of the parties and their counsel, reciting what had transpired and defining three (3) issues to be tried.

If, immediately upon receipt of his copy of the pre-trial order, plaintiff's counsel should move for its amendment to include a fourth (4th) triable issue which he allegedly inadvertently failedto mention when the judge dictated the order. Should the motion to amend be granted? Reasons. (2%)
Suppose trial had already commenced and after the plaintiff's second witness had testified, the defendant's counsel moves for the amendment of the pre-trial order to include a fifth (5th) triable issue vital to his client's defense. Should the motion be granted over the objection of plaintiff's counsel? Reasons. (3%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The accused in a criminal case has the right to avail of the various modes of discovery.
The viatory right of a witness served with a subpoena ad testificandum refers to his right not to comply with the subpoena.
In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions for the issuance of a writ of habeas corpus.
An electronic document is the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.
The filing of a motion for the reconsideration of the trial court's decision results in the abandonment of a perfected appeal.

XII

Mike was renting an apartment unit in the building owned by Jonathan. When Mike failed to pay six months' rent, Jonathan filed an ejectment suit. The Municipal Trial Court (MTC) rendered judgment in favor of Jonathan, who then filed a motion for the issuance of a writ of execution. The MTC issued the writ.

How can Mike stay the execution of the MTC judgment? Explain. (2%)
Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC decision. Mike then filed a petition for review with the Court of Appeals (CA). The CA dismissed the petition on the ground that the sheriff had already executed the MTC decision and had ejected Mike from the premises, thus rendering the appeal moot and academic. Is the CA correct? Reasons. (3%)

XIII

Continental Chemical Corporation (CCC) filed a complaint for a sum of money against Barstow Trading Corporation (BTC) for the latter's failure to pay for its purchases of industrial chemicals. In its answer, BTC contended that it refused to pay because CCC misrepresented that the products it sold belonged to a new line, when in fact they were identical with CCC's existing products. To substantiate its defense, BTC filed a motion to compel CCC to give a detailed list of the products' ingredients and chemical components, relying on the right to avail of the modes of discovery allowed under Rule 27. CCC objected, invoking confidentiality of the information sought by BTC. Resolve BTC's motion with reasons. (3%)
Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence of his sister, Carla. Carla brought Betty to the hospital. Outside the operating room, Carla told Domingo, a male nurse, that it was Alberto who shot Betty. Betty died while undergoing emergency surgery. At the trial of the parricide charges filed against Alberto, the prosecutor sought to present Domingo as witness, to testify on what Carla told him. The defense counsel objected on the ground that Domingo's testimony is inadmissible for being hearsay. Rule on the objection with reasons. (3%)

XIV

The Republic of the Philippines, through the Department of Public Works and Highways (DPWH) filed with the RTC a complaint for the expropriation of the parcel of land owned by Jovito. The land is to be used as an extension of the national highway. Attached to the complaint is a bank certificate showing that there is, on deposit with the Land Bank of the Philippines, an amount equivalent to the assessed value of the property. Then DPWH filed a motion for the issuance of a writ of possession. Jovito filed a motion to dismiss the complaint on the ground that there are other properties which would better serve the purpose.

Will Jovito's motion to dismiss prosper? Explain. (3%)
As judge, will you grant the writ of possession prayed for by DPWH? Explain. (3%)

Florencio sued Guillermo for partition of a property they owned in common. Guillermo filed a motion to dismiss the complaint because Florencio failed to implead Hernando and Inocencio, the other co-owners of the property. As judge, will you grant the motion to dismiss? Explain. (3%)
Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin Road, Baguio City, while Mariano resides in Davao City. Henry filed a motion to dismiss the complaint on the ground of prematurity for failure to comply with the mandatory barangay conciliation. Resolve the motion with reasons. (3%)

XVI

After the prosecution had rested and made its formal offer of evidence, with the court admitting all of the prosecution evidence, the accused filed a demurrer to evidence with leave of court. The prosecution was allowed to comment thereon. Thereafter, the court granted the demurrer, finding that the accused could not have committed the offense charged. If the prosecution files a motion for reconsideration on the ground that the court order granting the demurrer was not in accord with the law and jurisprudence, will the motion prosper? Explain your answer. (3%)
A criminal information is filed in court charging Anselmo with homicide. Anselmo files a motion to quash the information on the ground that no preliminary investigation was conducted. Will the motion be granted? Why or why not? (3%)

XVII

Having obtained favorable judgment in his suit for a sum of money against Patricio, Orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff levied upon a parcel of land that Patricio owns, and a date was set for the execution sale.

How may Patricio prevent the sale of the property on execution? (2%)
If Orencio is the purchaser of the property at the execution sale, how much does he have to pay? Explain. (2%)
If the property is sold to a third party at the execution sale, what can Patricio do to recover the property? Explain. (2%)

XVIII

Pinoy died without a will. His wife, Rosie, and three children executed a deed of extrajudicial settlement of his estate. The deed was properly published and registered with the Office of the Register of Deeds. Three years thereafter, Suzy appeared, claiming to be the illegitimate child of Pinoy. She sought to annul the settlement alleging that she was deprived of her rightful share in the estate.

Rosie and the three children contended that (1) the publication of the deed constituted constructive notice to the whole world, and should therefore bind Suzy; and (2) Suzy's action had already prescribed.

Are Rosie and the three children correct? Explain. (4%)

XIX

Distinguish the two (2) modes of appeal from the judgment of the Regional Trial Court to the Court of Appeals. (3%)
What is the writ of amparo? How is it distinguished from the writ of habeas corpus? (2%)
What is the writ of habeas data? (1%)

-NOTHING FOLLOWS-

2009 Bar Questions - CRIMINAL LAW

2009-10-16T20:58:00.000-07:00

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

Amado, convicted of rape but granted an absolute pardon by the President, and one year thereafter, convicted of homicide, is a recidivist.
The creditor who resorts to forced labor of a child under the pretext of reimbursing himself for the debt incurred by the child’s father commits the crime of slavery.
The use of an unlicensed firearm in homicide is considered a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance.
A person who, on the occasion of a robbery, kills a bystander by accident is liable for two separate crimes: robbery and reckless imprudence resulting in homicide.
A policeman who, without a judicial order, enters a private house over the owner’s opposition is guilty of trespass to dwelling.

Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation.

Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of Evasion of Service of Sentence. As judge, will you grant the petition? Discuss fully. (4%)

III

Rigoberto gate-crashed the 71^st birthday party of Judge Lorenzo. Armed with a piece of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing the latter’s hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited Rigoberto in contempt and ordered his imprisonment for three (3) days.

Is Rigoberto guilty of Direct Assault? Why or why not? (3%)
Would your answer be the same if the reason for the attack was that when Judge Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him to jail for one year? Explain your answer. (3%)

Charlie hated his classmate, Brad, because the latter was assiduously courting Lily, Charlie’s girlfriend. Charlie went to a veterinarian and asked for some poison on the pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to use the poison on Brad.

The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brad’s food, did not kill Brad.

Did Charlie commit any crime? If so, what and why? If not, why not? (3%)
Would your answer be the same if Brad proved to be allergic to the powder, and after ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%)

Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: "O, pagkabaril mo kay Freddie, isauli mo kaagad, ha." Later, Ponciano killed Freddie, but used a knife because he did not want Freddie’s neighbors to hear the gunshot.

What, if any, is the liability of Ruben? Explain. (3%)
Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (3%)

Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador witnessed the entire incident, but he was so scared to tell the authorities about it.

On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged in court, Baldo claims that the crime he committed had already prescribed.

Is Baldo’s contention correct? Explain. (3%)

VII

Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00.

Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any public officer from directly or indirectly requesting or receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law.

While the case was being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the second information, claiming that she can no longer be charged under the Revised Penal Code having been charged for the same act under R.A. 3019.

Is Charina correct? Explain. (3%)

VIII

While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived. A firefight ensued between the bank robbers and the responding policemen, and one of the policemen was killed.

What crime or crimes, if any, had been committed? Explain. (3%)
Suppose it was Alfredo who was killed by the responding policemen, what charges can be filed against Braulio, Ciriaco and Domingo? Explain. (2%)
Suppose in the course of the robbery, before the policemen arrived, Braulio shot and killed Alfredo following a heated disagreement on who should carry the money bags, what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%)

Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: "Tigil! Kidnap ito!"

Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the van were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents that unless they give a ransom of P10-million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse.

What crime or crimes, if any, did Virgilio commit? Explain. (5%)

To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000.00, she consented.

She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape.

What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of Court, Edwin, and the jail warden? Explain your answer. (5%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

Life imprisonment is a penalty more favorable to the convict than reclusion perpetua.
Voluntary surrender is a mitigating circumstance in all acts and omissions punishable under the Revised Penal Code.
In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery.
In the crime of libel, truth is an absolute defense.
For a person who transacts an instrument representing the proceeds of a covered unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as amended), it must be shown that he has knowledge of the identities of the culprits involved in the commission of the predicate crimes.

XII

In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. Explain. (3%)
Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? (3%)

XIII

Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated checks. During the first two months following the investment, the investors received their profits, but thereafter, Angelo vanished.

Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of BP 22.

What is delito continuado? (1%)
Is Angelo’s contention tenable? Explain. (4%)

XIV

Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buy-bust operation failed to observe the requisite "chain of custody" of the evidence confiscated and/or seized from him.

What is the "chain of custody" requirement in drug offenses? What is its rationale? What is the effect of failure to observe the requirement? (3%)

Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the process of intervention or diversion.

What is intervention or diversion? Is Joe entitled to intervention or diversion? Explain. (3%)
Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain. (2%)
Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under Presidential Decree (PD) 968, considering that the death penalty is imposable for the consummated felony? Explain. (2%)

XVI

Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused the disbursement of public funds allocated for their local development programs for 2008. Records show that the amount of P2-million was purportedly used as financial assistance for a rice production livelihood project. Upon investigation, however, it was found that Roger and Jessie falsified the disbursement vouchers and supporting documents in order to make it appear that qualified recipients who, in fact, are non-existent individuals, received the money.

Roger and Jessie are charged with malversation through falsification and violation of Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the propriety of the charges filed against Roger and Jessie. Explain. (4%)

XVII

Wenceslao and Loretta were staying in the same boarding house, occupying different rooms. One late evening, when everyone in the house was asleep, Wenceslao entered Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and, before leaving the room, took her jewelry.

What crime or crimes, if any, did Wenceslao commit? Explain. (4%)
Discuss the applicability of the relevant aggravating circumstances of dwelling, nocturnity and the use of the picklock to enter the room of the victim. (3%)
Would your answer to [a] be the same if, despite the serious stab wounds she sustained, Loretta survived? Explain. (3%)

XVIII

At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive dance number. While gyrating with their bodies, Leoncio dipped his private parts in Evelyn’s buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her.

What crime or crimes, if any, did Leoncio commit? Explain. (3%)
Would your answer be the same if, even after the music had stopped, Leoncio continued to dance dirty, rubbing his private parts on Evelyn’s buttocks? Explain. (3%)

XIX

Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident physician doing his rounds entered the ICU and, seeing the disconnected tubes, replaced them. The patient survived. It turned out that the patient was Larry, as Oscar had been discharged from the hospital earlier.

Delmo was charged with frustrated murder, qualified by evident premeditation and treachery as aggravating circumstances. Discuss the propriety of the charge. (4%)

-NOTHING FOLLOWS-

2009 Bar Questions - MERCANTILE LAW

2009-10-16T20:56:00.000-07:00

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The Denicola Test in intellectual property law states that if design elements of an article reflect a merger of aesthetic and functional considerations, the artistic aspects of the work cannot be conceptually separable from the utilitarian aspects; thus, the article cannot be copyrighted.
If the Ombudsman is convinced that there is a violation of law after investigating a complaint alleging illicit bank deposits of a public officer, the Ombudsman may order the bank concerned to allow in camera inspection of bank records and documents.
Even if the seller and the buyer in a sale in bulk violate the Bulk Sales Law, the sale would still be valid.
Dividends on shares of stocks can only be declared out of unrestricted retained earnings of the corporation.
A bank under receivership can still grant new loans and accept new deposits.

Atlantis Realty Corporation (ARC), a local firm engaged in real estate development, plans to sell one of its prime assets --- a three-hectare land valued at about P100-million. For this purpose, the board of directors of ARC unanimously passed a resolution approving the sale of the property for P75-million to Shangrila Real Estate Ventures (SREV), a rival realty firm. The resolution also called for a special stockholders meeting at which the proposed sale would be up for ratification.

Atty. Edric, a stockholder who owns only one (1) share in ARC, wants to stop the sale. He then commences a derivative suit for and in behalf of the corporation, to enjoin the board of directors and the stockholders from approving the sale.

Can Atty. Edric, who owns only one (1) share in the company, initiate a derivative suit? Why or why not? (2%)
If such a suit is commenced, would it constitute an intra-corporate dispute? If so, why and where would such a suit be filed? If not, why not? (2%)
Will the suit prosper? Why or why not? (3%)

III

Armando, a resident of Manila, borrowed P3-million from Bernardo, offering as security his 500 shares of stock worth P1.5-million in Xerxes Corporation, and his 2007 BMW sedan, valued at P2-million. The mortgage on the shares of stock was registered in the Office of the Register of Deeds of Makati City where Xerxes Corporation has its principal office. The mortgage on the car was registered in the Office of the Register of Deeds of Manila. Armando executed a single Affidavit of Good Faith, covering both mortgages.

Armando defaulted on the payment of his obligation; thus, Bernardo foreclosed on the two chattel mortgages. Armando filed suit to nullify the foreclosure and the mortgages, raising the following issues:

The execution of only one Affidavit of Good Faith for both mortgages invalidated the two mortgages; (2%) and
The mortgage on the shares of stocks should have been registered in the Office of the Register of Deeds of Manila where he resides, as well as in the stock and transfer book of Xerxes Corporation. (3%)

Rule on the foregoing issues with reasons.

Assume that Bernardo extrajudicially foreclosed on the mortgages, and both the car and the shares of stock were sold at public auction. If the proceeds from such public sale should be P1-million short of Armando’s total obligation, can Bernardo recover the deficiency? Why or why not? (2%)

Antarctica Life Assurance Corporation (ALAC) publicly offered a specially designed insurance policy covering persons between the ages of 50 to 75 who may be afflicted with serious and debilitating illnesses. Quirico applied for insurance coverage, stating that he was already 80 years old. Nonetheless, ALAC approved his application.

Quirico then requested ALAC for the issuance of a cover note while he was trying to raise funds to pay the insurance premium. ALAC granted the request. Ten days after he received the cover note, Quirico had a heart seizure and had to be hospitalized. He then filed a claim on the policy.

Can ALAC validly deny the claim on the ground that the insurance coverage, as publicly offered, was available only to persons 50 to 75 years of age? Why or why not? (2%)
Did ALAC’s issuance of a cover note result in the perfection of an insurance contract between Quirico and ALAC? Explain. (3%)

Cecilio is planning to put up a grocery store in the subdivision where he and his family reside. To promote this proposed business venture, he told his wife and three children to send out promotional text messages to all the residents in the subdivision. Cecilio’s family members did as instructed, and succeeded in reaching, through text messages, more than 80% of the residents in the subdivision.

Is Cecilio habitually engaged in commerce even if the grocery store has yet to be established? Explain your answer. (3%)

Lorenzo drew a bill of exchange in the amount of P100,000.00 payable to Barbara or order, with his wife, Diana, as drawee. At the time the bill was drawn, Diana was unaware that Barbara is Lorenzo’s paramour.

Barbara then negotiated the bill to her sister, Elena, who paid for it for value, and who did not know who Lorenzo was. On due date, Elena presented the bill to Diana for payment, but the latter promptly dishonored the instrument because, by then, Diana had already learned of her husband’s dalliance.

Was the bill lawfully dishonored by Diana? Explain. (3%)
Does the illicit cause or consideration adversely affect the negotiability of the bill? Explain. (3%)

VII

Global Transport Services, Inc. (GTSI) operates a fleet of cargo vessels plying interisland routes. One of its vessels, MV Dona Juana, left the port of Manila for Cebu laden with, among other goods, 10,000 television sets consigned to Romualdo, a TV retailer in Cebu.

When the vessel was about ten nautical miles away from Manila, the ship captain heard on the radio that a typhoon which, as announced by PAG-ASA, was on its way out of the country, had suddenly veered back into Philippine territory. The captain realized that MV Dona Juana would traverse the storm’s path, but decided to proceed with the voyage. True enough, the vessel sailed into the storm. The captain ordered the jettison of the 10,000 television sets, along with some other cargo, in order to lighten the vessel and make it easier to steer the vessel out of the path of the typhoon. Eventually, the vessel, with its crew intact, arrived safely in Cebu.

Will you characterize the jettison of Romualdo’s TV sets as an average? If so, what kind of an average, and why? If not, why not? (3%)
Against whom does Romualdo have a cause of action for indemnity of his lost TV sets? Explain. (3%)

VIII

Maharlikang Pilipino Banking Corporation (MPBC) operates several branches of Maharlikang Pilipino Rural Bank in Eastern Visayas. Almost all the branch managers are close relatives of the members of the Board of Directors of the corporation. Many undeserving relatives of the branch managers were granted loans. In time, the branches could not settle their obligations to depositors and creditors.

Receiving reports of these irregularities, the Supervising and Examining Department (SED) of the Monetary Board prepared a detailed report (SED Report) specifying the facts and the chronology of events relative to the problems that beset MPBC rural bank branches. The report concluded that the bank branches were unable to pay their liabilities as they fell due, and could not possibly continue in business without incurring substantial losses to its depositors and creditors.

May the Monetary Board order the closure of the MPBC rural banks relying only on the SED Report, without need of an examination? Explain. (3%)
If MPBC hires you as lawyer because the Monetary Board has forbidden it from carrying on its business due to its imminent insolvency, what action will you institute to question the Monetary Board’s order? Explain. (3%)

When is there an ultra vires act on the part of [a] the corporation; [b] the board of directors; and [c] the corporate officers. (3%)

What are the so-called exempt securities under the Securities Regulation Code? (2%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

A loan agreement which provides that the debtor shall pay interest at the rate determined by the bank’s branch manager violates the disclosure requirement of the Truth in Lending Act.
Under the Warehouse Receipts Law, a warehouseman loses his lien upon the goods when he surrenders possession thereof.
The Howey Test states that there is an investment contract when a person invests money in a common enterprise and is led to expect profits primarily from the efforts of others.
A document, dated July 15, 2009, that reads: "Pay to X or order the sum of P5,000.00 five days after his pet dog, Sparky, dies. Signed Y." is a negotiable instrument.
"A bank is bound to know its depositor’s signature" is an inflexible rule in determining the liability of a bank in forgery cases.

XII

Gaudencio, a store owner, obtained a P1-million loan from Bathala Financing Corporation (BFC). As security, Gaudencio executed a "Deed of Assignment of Receivables," assigning 15 checks received from various customers who bought merchandise from his store. The checks were duly indorsed by Gaudencio’s customers.

The Deed of Assignment contains the following stipulation:

"If, for any reason, the receivables or any part thereof cannot be paid by the obligors, the ASSIGNOR unconditionally and irrevocably agrees to pay the same, assuming the liability to pay, by way of penalty, three percent (3%) of the total amount unpaid, for the period of delay until the same is fully paid."

When the checks became due, BFC deposited them for collection, but the drawee banks dishonored all the checks for one of the following reasons: "account closed," "payment stopped," "account under garnishment," or "insufficiency of funds." BFC wrote Gaudencio notifying him of the dishonored checks, and demanding payment of the loan. Because Gaudencio did not pay, BFC filed a collection suit.

In his defense, Gaudencio contended that [a] BFC did not give timely notice of dishonor (of the checks); and [b] considering that the checks were duly indorsed, BFC should proceed against the drawers and the indorsers of the checks.

Are Gaudencio’s defenses tenable? Explain. (5%)

XIII

Ciriaco leased a commercial apartment from Supreme Building Corporation (SBC). One of the provisions of the one-year lease contract states:

"18. x x x The LESSEE shall not insure against fire the chattels, merchandise, textiles, goods and effects placed at any stall or store or space in the leased premises without first obtaining the written consent of the LESSOR. If the LESSEE obtains fire insurance coverage without the consent of the LESSOR, the insurance policy is deemed assigned and transferred to the LESSOR for the latter’s benefit."

Notwithstanding the stipulation in the contract, without the consent of SBC, Ciriaco insured the merchandise inside the leased premises against loss by fire in the amount of P500,000.00 with First United Insurance Corporation (FUIC).

A day before the lease contract expired, fire broke out inside the leased premises, damaging Ciriaco’s merchandise. Having learned of the insurance earlier procured by Ciriaco, SBC demanded from FUIC that the proceeds of the insurance policy be paid directly to it, as provided in the lease contract.

Who is legally entitled to receive the insurance proceeds? Explain. (4%)

XIV

XXX Corporation (XXX) and its sister company, YYY Corporation (YYY), are both under judicial receivership. The receiver has the option to sell all or substantially all of the properties of YYY to XXX, or simply merge the two corporations. Under either option, the requirements under the Corporation Code have to be complied with.

The receiver seeks your advice on whether the Bulk Sales Law will apply to either, or both, options. What will your advice be? Explain. (4%)

After disposing of his last opponent in only two rounds in Las Vegas, the renowned Filipino boxer Sonny Bachao arrived at the Ninoy Aquino International Airport met by thousands of hero-worshipping fans and hundreds of media photographers. The following day, a colored photograph of Sonny wearing a black polo shirt embroidered with the 2-inch Lacoste crocodile logo appeared on the front page of every Philippine newspaper.

Lacoste International, the French firm that manufactures Lacoste apparel and owns the Lacoste trademark, decided to cash in on the universal popularity of the boxing icon. It reprinted the photographs, with the permission of the newspaper publishers, and went on a world-wide blitz of print commercials in which Sonny is shown wearing a Lacoste shirt alongside the phrase "Sonny Bachao just loves Lacoste."

When Sonny sees the Lacoste advertisements, he hires you as lawyer and asks you to sue Lacoste International before a Philippine court:

For trademark infringement in the Philippines because Lacoste International used his image without his permission; (2%)
For copyright infringement because of the unauthorized use of the published photographs; (2%) and
For injunction in order to stop Lacoste International from featuring him in their commercials. (2%)

Will these actions prosper? Explain.

Can Lacoste International validly invoke the defense that it is not a Philippine company and, therefore, Philippine courts have no jurisdiction? Explain. (2%)

XVI

On September 15, 2007, XYZ Corporation issued to Paterno 800 preferred shares with the following terms:

"The Preferred Shares shall have the following rights, preferences, qualifications, and limitations, to wit:

The right to receive a quarterly dividend of One Per Centum (1%), cumulative and participating;
These shares may be redeemed, by drawing of lots, at any time after two (2) years from date of issue, at the option of the Corporation; x x x."

Today, Paterno sues XYZ Corporation for specific performance, for the payment of dividends on, and to compel the redemption of, the preferred shares, under the terms and conditions provided in the stock certificates. Will the suit prosper? Explain. (3%)

XVII

Philippine Palaces Realty (PPR) had been representing itself as a registered broker of securities, duly authorized by the Securities and Exchange Commission (SEC). On October 6, 1996, PPR sold to spouses Leon and Carina one (1) timeshare of Palacio del Boracay for US$7,500.00. However, its Registration Statement became effective only on February 11, 1998 after the SEC issued a resolution declaring that PPR was authorized to sell securities, including timeshares.

On March 30, 1998, Leon and Carina wrote PPR rescinding their purchase agreement and demanding the refund of the amount they paid, because the Palacio del Boracay timeshare was sold to them by PPR without the requisite license or authority from the SEC. PPR contended that the grant of the SEC authority had the effect of ratifying the purchase agreement (with Leon and Carina) of October 6, 1996.

Is the contention of PPR correct? Explain. (3%)

XVIII

Triple A Corporation (Triple A) was incorporated in 1960, with 500 founders’ shares and 78 common shares as its initial capital stock subscription. However, Triple A registered its stock and transfer book only in 1978, and recorded merely 33 common shares as the corporation’s issued and outstanding shares.

In 1982, Juancho, the sole heir of one of the original incorporators filed a petition with the Securities and Exchange Commission (SEC) for the registration of his property rights over 120 founders’ shares and 12 common shares. The petition was supported by a copy of the Articles of Incorporation indicating the incorporators’ initial capital stock subscription. Will the petition be granted? Why or why not? (3%)
On May 6, 1992, a special stockholders’ meeting was held. At this meeting, what would have constituted a quorum? Explain. (3%)
What is a stock and transfer book? (1%)

XIX

One of the passenger buses owned by Continental Transit Corporation (CTC), plying its usual route, figured in a collision with another bus owned by Universal Transport, Inc. (UTI). Among those injured inside the CTC bus were: Romeo, a stow away; Samuel, a pickpocket then in the act of robbing his seatmate when the collision occurred; Teresita, the bus driver’s mistress who usually accompanied the driver on his trips for free; and Uriel, holder of a free riding pass he won in a raffle held by CTC.

Will a suit for breach of contract of carriage filed by Romeo, Samuel, Teresita, and Uriel against CTC prosper? Explain. (3%)
Do Romeo, Samuel, Teresita, and Uriel have a cause of action for damages against UTI? Explain. (3%)
What, if any, are the valid defenses that CTC and UTI can raise in the respective actions against them? Explain. (3%)

Under the Securities Regulation Code, what is the Margin Trading Rule? (2%)

-NOTHING FOLLOWS-

2009 Bar Questions - TAXATION

2009-10-16T20:55:00.000-07:00

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

A law that allows taxes to be paid either in cash or in kind is valid.
When the financial position of the taxpayer demonstrates a clear inability to pay the tax, the Commissioner of Internal Revenue may validly compromise the tax liability.
The doctrine of equitable recoupment allows a taxpayer whose claim for refund has prescribed to offset tax liabilities with his claim of overpayment.
A law imposing a tax on income of religious institutions derived from the sale of religious articles is valid.
A false return and a fraudulent return are one and the same.

Enumerate the four (4) inherent limitations on taxation. Explain each item briefly. (4%)

III

Melissa inherited from her father a 300-square-meter lot. At the time of her father's death on March 14, 1995, the property was valued at P720,000.00. On February 28, 1996, to defray the cost of the medical expenses of her sick son, she sold the lot for P600,000.00, on cash basis. The prevailing market value of the property at the time of the sale was P3,000.00 per square meter.

Is Melissa liable to pay capital gains tax on the transaction? If so, how much and why? If not, why not? (4%)
Is Melissa liable to pay Value Added Tax (VAT) on the sale of the property? If so, how much and why? If not, why not? (4%)

International Technologies, Inc. (ITI) filed a claim for refund for unutilized input VAT with the Court of Tax Appeals (CTA). In the course of the trial, ITI engaged the services of an independent Certified Public Accountant (CPA) who examined the voluminous invoices and receipts of ITI. ITI offered in evidence only the summary prepared by the CPA, without the invoices and the receipts, and then submitted the case for decision.

Can the CTA grant ITI's claim for refund based only on the CPA's summary? Explain. (4%)

Jessie brought into the Philippines a foreign-made luxury car, and paid less than the actual taxes and duties due. Due to the discrepancy, the Bureau of Customs instituted seizure proceedings and issued a warrant of seizure and detention. The car, then parked inside a pay parking garage, was seized and brought by government agents to a government impounding facility. The Collector of Customs denied Jessie's request for the withdrawal of the warrant.

Aggrieved, Jessie filed against the Collector a criminal complaint for usurpation of judicial functions on the ground that only a judge may issue a warrant of search and seizure.

Resolve with reasons Jessie's criminal complaint. (4%)
Would your answer be the same if the luxury car was seized while parked inside the garage of Jessie's residence? Why or why not? (4%)

The Sangguniang Bayan of the Municipality of Sampaloc, Quezon, passed an ordinance imposing a storage fee of ten centavos (P0.10) for every 100 kilos of copra deposited in any bodega within the Municipality's jurisdiction. The Metropolitan Manufacturing Corporation (MMC), with principal office in Makati, is engaged in the manufacture of soap, edible oil, margarine, and other coconut oil-based products. It has a warehouse in Sampaloc, Quezon, used as storage space for the copra purchased in Sampaloc and nearby towns before the same is shipped to Makati. MMC goes to court to challenge the validity of the ordinance, demanding the refund of the storage fees it paid under protest.

Is the ordinance valid? Explain your answer. (4%)

VII

Kenya International Airlines (KIA) is a foreign corporation, organized under the laws of Kenya. It is not licensed to do business in the Philippines. Its commercial airplanes do not operate within Philippine territory, or service passengers embarking from Philippine airports. The firm is represented in the Philippines by its general agent, Philippine Airlines (PAL), a Philippine corporation.

KIA sells airplane tickets through PAL, and these tickets are serviced by KIA airplanes outside the Philippines. The total sales of airline tickets transacted by PAL for KIA in 1997 amounted to P2,968,156.00. The Commissioner of Internal Revenue assessed KIA deficiency income taxes at the rate of 35% on its taxable income, finding that KIA's airline ticket sales constituted income derived from sources within the Philippines.

KIA filed a protest on the ground that the P2,968,156.00 should be considered as income derived exclusively from sources outside the Philippines since KIA only serviced passengers outside Philippine territory.

Is the position of KIA tenable? Reasons. (4%)

VII

Is the position of KIA tenable? Reasons. (4%)

VIII

The City of Manila enacted Ordinance No. 55-66 which imposes a municipal occupation tax on persons practicing various professions in the city. Among those subjected to the occupation tax were lawyers. Atty. Mariano Batas, who has a law office in Manila, pays the ordinance-imposed occupation tax under protest. He goes to court to assail the validity of the ordinance for being discriminatory. Decide with reasons. (3%)

Republic Power Corporation (RPC) is a government-owned and controlled corporation engaged in the supply, generation and transmission of electric power. In 2005, in order to provide electricity to Southern Tagalog provinces, RPC entered into an agreement with Jethro Energy Corporation (JEC), for the lease of JEC's power barges which shall be berthed at the port of Batangas City. The contract provides that JEC shall own the power barges and the fixtures, fittings, machinery, and equipment therein, all of which JEC shall supply at its own cost, and that JEC shall operate, manage and maintain the power barges for the purpose of converting the fuel of RPC into electricity. The contract also stipulates that all real estate taxes and assessments, rates and other charges, in respect of the power barges, shall be for the account of RPC.

In 2007, JEC received an assessment of real property taxes on the power barges from the Assessor of Batangas City. JEC sought reconsideration of the assessment on the ground that the power barges are exempt from real estate taxes under Section 234 [c] of R.A. 7160 as they are actually, directly and exclusively used by RPC, a government-owned and controlled corporation. Furthermore, even assuming that the power barges are subject to real property tax, RPC should be held liable therefor, in accordance with the terms of the lease agreement. Is the contention of JEC correct? Explain your answer. (4%)

ABCD Corporation (ABCD) is a domestic corporation with individual and corporate shareholders who are residents of the United States. For the 2^nd quarter of 1983, these U.S.-based individual and corporate stockholders received cash dividends from the corporation. The corresponding withholding tax on dividend income --- 30% for individual and 35% for corporate non-resident stockholders --- was deducted at source and remitted to the BIR.

On May 15, 1984, ABCD filed with the Commissioner of Internal Revenue a formal claim for refund, alleging that under the RP-US Tax Treaty, the deduction withheld at source as tax on dividends earned was fixed at 25% of said income. Thus, ABCD asserted that it overpaid the withholding tax due on the cash dividends given to its non-resident stockholders in the U.S. The Commissioner denied the claim.

On January 17, 1985, ABCD filed a petition with the Court of Tax Appeals (CTA) reiterating its demand for refund.

Does ABCD Corporation have the legal personality to file the refund on behalf of its non-resident stockholders? Why or why not? (3%)
Is the contention of ABCD Corporation correct? Why or why not? (3%)

PART II

Raffy and Wena, husband and wife, are both employed by XXX Corporation. After office hours, they jointly manage a coffee shop at the ground floor of their house. The coffee shop is registered in the name of both spouses. Which of the following is the correct way to prepare their income tax return? Write the letter only. DO NOT EXPLAIN YOUR ANSWER. (2%)

Raffy will declare as his income the salaries of both spouses, while Wena will declare the income from the coffee shop.
Wena will declare the combined compensation income of the spouses, and Raffy will declare the income from the coffee shop.
All the income will be declared by Raffy alone, because only one consolidated return is required to be filed by the spouses.
Raffy will declare his own compensation income and Wena will declare hers. The income from the coffee shop shall be equally divided between them. Each spouse shall be taxed separately on their corresponding taxable income to be covered by one consolidated return for the spouses.
Raffy will declare his own compensation income and Wena will declare hers. The income from the coffee shop shall be equally divided between them. Raffy will file one income tax return to cover all the income of both spouses, and the tax is computed on the aggregate taxable income of the spouses.

XII

YYY Corporation engaged the services of the Manananggol Law Firm in 2006 to defend the corporation's title over a property used in the business. For the legal services rendered in 2007, the law firm billed the corporation only in 2008. The corporation duly paid.

YYY Corporation claimed this expense as a deduction from gross income in its 2008 return, because the exact amount of the expense was determined only in 2008. Is YYY's claim of deduction proper? Reasons. (4%)

XIII

In 1999, Xavier purchased from his friend, Yuri, a painting for P500,000.00. The fair market value (FMV) of the painting at the time of the purchase was P1-million. Yuri paid all the corresponding taxes on the transaction. In 2001, Xavier died. In his last will and testament, Xavier bequeathed the painting, already worth P1.5-million, to his only son, Zandro. The will also granted Zandro the power to appoint his wife, Wilma, as successor to the painting in the event of Zandro's death. Zandro died in 2007, and Wilma succeeded to the property.

Should the painting be included in the gross estate of Xavier in 2001 and thus, be subject to estate tax? Explain. (3%)
Should the painting be included in the gross estate of Zandro in 2007 and thus, be subject to estate tax? Explain. (3%)
May a vanishing deduction be allowed in either or both of the estates? Explain. (3%)

XIV

Emiliano Paupahan is engaged in the business of leasing out several residential apartment units he owns. The monthly rental for each unit ranges from P8,000.00 to P10,000.00. His gross rental income for one year is P1,650,000.00. He consults you on whether it is necessary for him to register as a VAT taxpayer. What legal advice will you give him, and why? (4%)

Miguel, a citizen and resident of Mexico, donated US$1,000.00 worth of stocks in Barack Motors Corporation, a Mexican company, to his legitimate son, Miguelito, who is residing in the Philippines and about to be married to a Filipino girlfriend. Mexico does not impose any transfer tax of whatever nature on all gratuitous transfers of property.

Is Miguel entitled to claim a dowry exclusion? Why or why not? (3%)
Is Miguel entitled to the rule of reciprocity in order to be exempt from the Philippine donor's tax? Why or why not? (3%)

XVI

Ernesto, a Filipino citizen and a practicing lawyer, filed his income tax return for 2007 claiming optional standard deductions. Realizing that he has enough documents to substantiate his profession-connected expenses, he now plans to file an amended income tax return for 2007, in order to claim itemized deductions, since no audit has been commenced by the BIR on the return he previously filed. Will Ernesto be allowed to amend his return? Why or why not? (4%)

XVII

A final assessment notice was issued by the BIR on June 13, 2000, and received by the taxpayer on June 15, 2000. The taxpayer protested the assessment on July 31, 2000. The protest was initially given due course, but was eventually denied by the Commissioner of Internal Revenue in a decision dated June 15, 2005. The taxpayer then filed a petition for review with the Court of Tax Appeals (CTA), but the CTA dismissed the same.

Is the CTA correct in dismissing the petition for review? Explain your answer. (4%)
Assume that the CTA's decision dismissing the petition for review has become final. May the Commissioner legally enforce collection of the delinquent tax? Explain. (4%)

XVIII

A taxpayer received an assessment notice from the BIR on February 3, 2009. The following day, he filed a protest, in the form of a request for reinvestigation, against the assessment and submitted all relevant documents in support of the protest. On September 11, 2009, the taxpayer, apprehensive because he had not yet received notice of a decision by the Commissioner on his protest, sought your advice.

What remedy or remedies are available to the taxpayer? Explain. (4%)

XIX

Johnny transferred a valuable 10-door commercial apartment to a designated trustee, Miriam, naming in the trust instrument Santino, Johnny's 10-year old son, as the sole beneficiary. The trustee is instructed to distribute the yearly rentals amounting to P720,000.00. The trustee consults you if she has to pay the annual income tax on the rentals received from the commercial apartment.

What advice will you give the trustee? Explain. (3%)
Will your advice be the same if the trustee is directed to accumulate the rental income and distribute the same only when the beneficiary reaches the age of majority? Why or why not? (3%)

Masarap Food Corporation (MFC) incurred substantial advertising expenses in order to protect its brand franchise for one of its line products. In its income tax return, MFC included the advertising expense as deduction from gross income, claiming it as an ordinary business expense. Is MFC correct? Explain. (3%)

-NOTHING FOLLOWS-

2009 Bar Questions - CIVIL LAW

2009-10-16T20:52:00.000-07:00

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

The doctrine of "processual presumption" allows the court of the forum to presume that the foreign law applicable to the case is the same as the local or domestic law.
In reserva troncal, all reservatarios (reservees) inherit as a class and in equal shares regardless of their proximity in degree to the prepositus.
An oral partnership is valid.
An oral promise of guaranty is valid and binding.
A dead child can be legitimated.

Dr. Lopez, a 70-year old widower, and his son Roberto both died in a fire that gutted their home while they were sleeping in their air-conditioned rooms. Roberto’s wife, Marilyn, and their two children were spared because they were in the province at the time. Dr. Lopez left an estate worth P20M and a life insurance policy in the amount of P1M with his three children --- one of whom is Roberto --- as beneficiaries.

Marilyn is now claiming for herself and her children her husband’s share in the estate left by Dr. Lopez, and her husband’s share in the proceeds of Dr. Lopez’s life insurance policy. Rule on the validity of Marilyn’s claims with reasons. (4%)

III

In December 2000, Michael and Anna, after obtaining a valid marriage license, went to the Office of the Mayor of Urbano, Bulacan, to get married. The Mayor was not there, but the Mayor’s secretary asked Michael and Anna and their witnesses to fill up and sign the required marriage contract forms. The secretary then told them to wait, and went out to look for the Mayor who was attending a wedding in a neighboring municipality.

When the secretary caught up with the Mayor at the wedding reception, she showed him the marriage contract forms and told him that the couple and their witnesses were waiting in his office. The Mayor forthwith signed all the copies of the marriage contract, gave them to the secretary who returned to the Mayor’s office. She then gave copies of the marriage contract to the parties, and told Michael and Anna that they were already married. Thereafter, the couple lived together as husband and wife, and had three sons.

Is the marriage of Michael and Anna valid, voidable, or void? Explain your answer. (3%)
What is the status of the three children of Michael and Anna? Explain your answer. (2%)
What property regime governs the properties acquired by the couple? Explain. (2%)

Harry married Wilma, a very wealthy woman. Barely five (5) years into the marriage, Wilma fell in love with Joseph. Thus, Wilma went to a small country in Europe, became a naturalized citizen of that country, divorced Harry, and married Joseph. A year thereafter, Wilma and Joseph returned and established permanent residence in the Philippines.

Is the divorce obtained by Wilma from Harry recognized in the Philippines? Explain your answer. (3%)
If Harry hires you as his lawyer, what legal recourse would you advise him to take? Why? (2%)
Harry tells you that he has fallen in love with another woman, Elizabeth, and wants to marry her because, after all, Wilma is already married to Joseph. Can Harry legally marry Elizabeth? Explain. (2%)

Four children, namely: Alberto, Baldomero, Caridad, and Dioscoro, were born to the spouses Conrado and Clarita de la Costa. The children’s birth certificates were duly signed by Conrado, showing them to be the couple’s legitimate children.

Later, one Edilberto de la Cruz executed a notarial document acknowledging Alberto and Baldomero as his illegitimate children >with Clarita. Edilberto died leaving substantial properties. In the settlement of his estate, Alberto and Baldomero intervened claiming shares as the deceased’s illegitimate children. The legitimate family of Edilberto opposed the claim.

Are Alberto and Baldomero entitled to share in the estate of Edilberto? Explain. (4%)

On December 1, 2000, Dr. Juanito Fuentes executed a holographic will, wherein he gave nothing to his recognized illegitimate son, Jay. Dr. Fuentes left for the United States, passed the New York medical licensure examinations, resided therein, and became a naturalized American citizen. He died in New York in 2007. The laws of New York do not recognize holographic wills or compulsory heirs.

Can the holographic will of Dr. Fuentes be admitted to probate in the Philippines? Why or why not? (3%)
Assuming that the will is probated in the Philippines, can Jay validly insist that he be given his legitime? Why or why not? (3%)

VII

Ramon Mayaman died intestate, leaving a net estate of P10,000,000.00. Determine how much each heir will receive from the estate:

If Ramon is survived by his wife, three full-blood brothers, two half-brothers, and one nephew (the son of a deceased full-blood brother)? Explain. (3%)
If Ramon is survived by his wife, a half-sister, and three nephews (sons of a deceased full-blood brother)? Explain. (3%)

VIII

Jude owned a building which he had leased to several tenants. Without informing his tenants, Jude sold the building to Ildefonso. Thereafter, the latter notified all the tenants that he is the new owner of the building. Ildefonso ordered the tenants to vacate the premises within thirty (30) days from notice because he had other plans for the building. The tenants refused to vacate, insisting that they will only do so when the term of their lease shall have expired. Is Ildefonso bound to respect the lease contracts between Jude and his tenants? Explain your answer. (3%)

Before migrating to Canada in 1992, the spouses Teodoro and Anita entrusted all their legal papers and documents to their nephew, Atty. Tan. Taking advantage of the situation, Atty. Tan forged a deed of sale, making it appear that he had bought the couple’s property in Quezon City. In 2000, he succeeded in obtaining a TCT over the property in his name. Subsequently, Atty. Tan sold the same property to Luis, who built an auto repair shop on the property. In 2004, Luis registered the deed of conveyance, and title over the property was transferred in his name.

In 2006, the spouses Teodoro and Anita came to the Philippines for a visit and discovered what had happened to their property. They immediately hire you as lawyer. What action or actions will you institute in order to vindicate their rights? Explain fully. (4%)

Rommel’s private car, while being driven by the regular family driver, Amado, hits a pedestrian causing the latter’s death. Rommel is not in the car when the incident happened.

Is Rommel liable for damages to the heirs of the deceased? Explain. (2%)
Would your answer be the same if Rommel was in the car at the time of the accident? Explain. (2%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

A clause in an arbitration contract granting one of the parties the power to choose more arbitrators than the other renders the arbitration contract void.
If there is no marriage settlement, the salary of a "spouse" in an adulterous marriage belongs to the conjugal partnership of gains.
Acquisitive prescription of a negative easement runs from the time the owner of the dominant estate forbids, in a notarized document, the owner of the servient estate from executing an act which would be lawful without the easement.
The renunciation by a co-owner of his undivided share in the co-owned property in lieu of the performance of his obligation to contribute to taxes and expenses for the preservation of the property constitutes dacion en pago.
A person can dispose of his corpse through an act intervivos.

XII

Emmanuel and Margarita, American citizens and employees of the U.S. State Department, got married in the African state of Kenya where sterility is a ground for annulment of marriage. Thereafter, the spouses were assigned to the U.S. Embassy in Manila. On the first year of the spouses’ tour of duty in the Philippines, Margarita filed an annulment case against Emmanuel before a Philippine court on the ground of her husband’s sterility at the time of the celebration of the marriage.

Will the suit prosper? Explain your answer. (3%)
Assume Emmanuel and Margarita are both Filipinos. After their wedding in Kenya, they come back and take up residence in the Philippines. Can their marriage be annulled on the ground of Emmanuel’s sterility? Explain. (3%)

XIII

Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a one-year old foundling who had a severe heart ailment. During the pendency of the adoption proceedings, Rafael died of natural causes. The Office of the Solicitor General files a motion to dismiss the petition on the ground that the case can no longer proceed because of the petitioner’s death.

Should the case be dismissed? Explain. (2%)
Will your answer be the same if it was Dolly who died during the pendency of the adoption proceedings? Explain. (2%)

XIV

Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19-year old girl, and begot a baby girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital and other medical expenses in delivering the child by caesarean section; moral, claiming that Rodolfo promised to marry her, representing that he was single when, in fact, he was not; and exemplary, to teach a lesson to like-minded Lotharios.

If you were the judge, would you award all the claims of Nanette? Explain. (3%)
Suppose Rodolfo later on acknowledges Rona and gives her regular support, can he compel her to use his surname? Why or why not? (2%)
When Rona reaches seven (7) years old, she tells Rodolfo that she prefers to live with him, because he is better off financially than Nanette. If Rodolfo files an action for the custody of Rona, alleging that he is Rona’s choice as custodial parent, will the court grant Rodolfo’s petition? Why or why not? (2%)

Sarah had a deposit in a savings account with Filipino Universal Bank in the amount of five million pesos (P5,000,000.00). To buy a new car, she obtained a loan from the same bank in the amount of P1,200,000.00, payable in twelve monthly installments. Sarah issued in favor of the bank post-dated checks, each in the amount of P100,000.00, to cover the twelve monthly installment payments. On the third, fourth and fifth months, the corresponding checks bounced.

The bank then declared the whole obligation due, and proceeded to deduct the amount of one million pesos (P1,000,000.00) from Sarah’s deposit after notice to her that this is a form of compensation allowed by law. Is the bank correct? Explain. (4%)

XVI

Marciano is the owner of a parcel of land through which a river runs out into the sea. The land had been brought under the Torrens System, and is cultivated by Ulpiano and his family as farmworkers therein. Over the years, the river has brought silt and sediment from its sources up in the mountains and forests so that gradually the land owned by Marciano increased in area by three hectares. Ulpiano built three huts on this additional area, where he and his two married children live. On this same area, Ulpiano and his family planted peanuts, monggo beans and vegetables. Ulpiano also regularly paid taxes on the land, as shown by tax declarations, for over thirty years.

When Marciano learned of the increase in the size of the land, he ordered Ulpiano to demolish the huts, and demanded that he be paid his share in the proceeds of the harvest. Marciano claims that under the Civil Code, the alluvium belongs to him as a registered riparian owner to whose land the accretion attaches, and that his right is enforceable against the whole world.

Is Marciano correct? Explain. (3%)
What rights, if any, does Ulpiano have against Marciano? Explain. (3%)

XVII

Rosario obtained a loan of P100,000.00 from Jennifer, and pledged her diamond ring. The contract signed by the parties stipulated that if Rosario is unable to redeem the ring on due date, she will execute a document in favor of Jennifer providing that the ring shall automatically be considered full payment of the loan.

Is the contract valid? Explain. (3%)
Will your answer to [a] be the same if the contract stipulates that upon failure of Rosario to redeem the ring on due date, Jennifer may immediately sell the ring and appropriate the entire proceeds thereof for herself as full payment of the loan? Reasons. (3%)

XVIII

The Ifugao Arms is a condominium project in Baguio City. A strong earthquake occurred which left huge cracks in the outer walls of the building. As a result, a number of condominium units were rendered unfit for use. May Edwin, owner of one of the condominium units affected, legally sue for partition by sale of the whole project? Explain. (4%)

XIX

In 1972, Luciano de la Cruz sold to Chua Chung Chun, a Chinese citizen, a parcel of land in Binondo. Chua died in 1990, leaving behind his wife and three children, one of whom, Julian, is a naturalized Filipino citizen. Six years after Chua’s death, the heirs executed an extrajudicial settlement of estate, and the parcel of land was allocated to Julian. In 2007, Luciano filed suit to recover the land he sold to Chua, alleging that the sale was void because it contravened the Constitution which prohibits the sale of private lands to aliens. Julian moved to dismiss the suit on grounds of pari delicto, laches and acquisitive prescription. Decide the case with reasons. (4%)

If Ligaya, a Filipino citizen residing in the United States, files a petition for change of name before the District Court of New York, what law shall apply? Explain. (2%)
If Henry, an American citizen residing in the Philippines, files a petition for change of name before a Philippine court, what law shall apply? Explain. (2%)

-NOTHING FOLLOWS-

2009 Bar Questions - LABOR AND SOCIAL LEGISLATION

2009-10-16T20:49:00.000-07:00

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

An employment contract prohibiting employment in a competing company within one year from separation is valid.
All confidential employees are disqualified to unionize for the purpose of collective bargaining.
A runaway shop is an act constituting unfair labor practice.
In the law on labor relations, the substitutionary doctrine prohibits a new collective bargaining agent from repudiating an existing collective bargaining agreement.
The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even when the individual claim exceeds P5,000.00.

Enumerate at least four (4) policies enshrined in Section 3, Article XIII of the Constitution that are not covered by Article 3 of the Labor Code on declaration of basic policy. (2%)
Clarito, an employee of Juan, was dismissed for allegedly stealing Juan’s wristwatch. In the illegal dismissal case instituted by Clarito, the Labor Arbiter, citing Article 4 of the Labor Code, ruled in favor of Clarito upon finding Juan’s testimony doubtful. On appeal, the NLRC reversed the Labor Arbiter holding that Article 4 applies only when the doubt involves "implementation and interpretation" of the Labor Code provisions. The NLRC explained that the doubt may not necessarily be resolved in favor of labor since this case involves the application of the Rules onEvidence, not the Labor Code. Is the NLRC correct? Reasons. (3%)

III

Richie, a driver-mechanic, was recruited by Supreme Recruiters (SR) and its principal, Mideast Recruitment Agency (MRA), to work in Qatar for a period of two (2) years. However, soon after the contract was approved by POEA, MRA advised SR to forego Richie’s deployment because it had already hired another Filipino driver-mechanic, who had just completed his contract in Qatar. Aggrieved, Richie filed with the NLRC a complaint against SR and MRA for damages corresponding to his two years’ salary under the POEA-approved contract.

SR and MRA traversed Richie’s complaint, raising the following arguments:

The Labor Arbiter has no jurisdiction over the case; (2%)
Because Richie was not able to leave for Qatar, no employer-employee relationship was established between them; (2%) and
Even assuming that they are liable, their liability would, at most, be equivalent to Richie’s salary for only six (6) months, not two years. (3%).

Rule on the validity of the foregoing arguments with reasons.

Diosdado, a carpenter, was hired by Building Industries Corporation (BIC), and assigned to build a small house in Alabang. His contract of employment specifically referred to him as a "project employee," although it did not provide any particular date of completion of the project.

Is the completion of the house a valid cause for the termination of Diosdado’s employment? If so, what are the due process requirements that the BIC must satisfy? If not, why not? (3%)

Baldo was dismissed from employment for having beenabsent without leave (AWOL) for eight (8) months. It turned outthat the reason for his absence was his incarceration after he was mistaken as his neighbor’s killer. Eventually acquitted and released from jail, Baldo returned to his employer and demanded reinstatement and full backwages. Is Baldo entitled to reinstatement and backwages? Explain your answer. (3%)
Domingo, a bus conductor of San Juan Transportation Company, intentionally did not issue a ticket to a female passenger, Kim, his long-time crush. As a result, Domingo was dismissed from employment for fraud or willful breach of trust. Domingo contests his dismissal, claiming that he is not a confidential employee and, therefore, cannot be dismissed from the service for breach of trust. Is Domingo correct? Reasons. (2%)

Albert, a 40-year old employer, asked his domestic helper, Inday, to give him a private massage. When Inday refused, Albert showed her Article 141 of the Labor Code, which says that one of the duties of a domestic helper is to minister to the employer’s personal comfort and convenience.

Is Inday’s refusal tenable? Explain. (3%)
Distinguish briefly, but clearly, a "househelper" from a "homeworker." (2%)

VII

Johnny is the duly elected President and principal union organizer of the Nagkakaisang Manggagawa ng Manila Restaurant (NMMR), a legitimate labor organization. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. On the same day Johnny received the notice of termination, the labor union went on strike.

Management filed an action to declare the strike illegal, contending that:

The union did not observe the "cooling-off period" mandated by the Labor Code; (2%) and
The union went on strike without complying with the strike-vote requirement under the Labor Code. (2%)

Rule on the foregoing contentions with reasons.

The Labor Arbiter found management guilty of unfair labor practice for the unlawful dismissal of Johnny. The decision became final. Thereafter, the NMMR filed a criminal case against the Manager of Manila Restaurant. Would the Labor Arbiter’s finding be sufficient to secure the Manager’s conviction? Why or why not? (2%)

VIII

Alexander, a security guard of Jaguar Security Agency (JSA), could not be given any assignment because no client would accept him. He had a face only a mother could love. After six (6) months of being on "floating" status, Alexander sued JSA for constructive dismissal. The Labor Arbiter upheld Alexander’s claim of constructive dismissal and ordered JSA to immediately reinstate Alexander. JSA appealed the decision to the NLRC. Alexander sought immediate enforcement of the reinstatement order while the appeal was pending.

JSA hires you as lawyer, and seeks your advice on the following:

Because JSA has no client who would accept Alexander, can it still be compelled to reinstate him pending appeal even if it has posted an appeal bond? (2%)
Can the order of reinstatement be immediately enforced in the absence of a motion for the issuance of a writ of execution? (2%)
If the order of reinstatement is being enforced, what should JSA do in order to prevent reinstatement? (2%)

Explain your answers.

What is wage distortion? Can a labor union invoke wage distortion as a valid ground to go on strike? Explain. (2%)
What procedural remedies are open to workers who seek correction of wage distortion? (2%)

State briefly the compulsory coverage of the Government Service Insurance Act. (2%)
Can a member of a cooperative be deemed an employee for purposes of compulsory coverage under the Social Security Act? Explain. (2%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

Seafarers who have worked for twenty (20) years on board the same vessel are regular employees.
Employment of children below fifteen (15) years of age in any public or private establishment is absolutely prohibited.
Government employees have the right to organize and join concerted mass actions without incurring administrative liability.
A waiver of the right to claim overtime pay is contrary to law.
Agency fees cannot be collected from a non-union member in the absence of a written authorization signed by the worker concerned.

XII

In her State of the Nation Address, the President stressed the need to provide an investor-friendly business environment so that the country can compete in the global economy that now suffers from a crisis bordering on recession. Responding to the call, Congress passed two innovative legislative measures, namely: (1) a law abolishing the security of tenure clause in the Labor Code; and (2) a law allowing contractualization in all areas needed in the employer’s business operations. However, to soften the impact of these new measures, the law requires that all employers shall obtain mandatory unemployment insurance coverage for all their employees.

The constitutionality of the two (2) laws is challenged in court. As judge, how will you rule? (5%)

XIII

Atty. Renan, a CPA-lawyer and Managing Partner of an accounting firm, conducted the orientation seminar for newly-hired employees of the firm, among them, Miss Maganda. After the seminar, Renan requested Maganda to stay, purportedly to discuss

some work assignment. Left alone in the training room, Renan asked Maganda to go out with him for dinner and ballroom dancing. Thereafter, he persuaded her to accompany him to the mountain highway in Antipolo for sight-seeing. During all these, Renan told Maganda that most, if not all, of the lady supervisors in the firm are where they are now, in very productive and lucrative posts, because of his favorable endorsement.

Did Renan commit acts of sexual harassment in a work- related or employment environment? Reasons. (3%)
The lady supervisors in the firm, slighted by Renan’s revelations about them, succeeded in having him expelled from the firm. Renan then filed with the Arbitration Branch of the NLRC an illegal dismissal case with claims for damages against the firm. Will the case prosper? Reasons. (2%)

XIV

Jolli-Mac Restaurant Company (Jolli-Mac) owns and operates the largest food chain in the country. It engaged Matiyaga Manpower Services, Inc. (MMSI), a job contractor registered with the Department of Labor and Employment, to provide its restaurants the necessary personnel, consisting of cashiers, motorcycle delivery boys and food servers, in its operations. The Service Agreement warrants, among others, that MMSI has a paid- up capital of P2,000,000.00; that it would train and determine the qualification and fitness of all personnel to be assigned to Jolli- Mac; that it would provide these personnel with proper Jolli-Mac uniforms; and that it is exclusively responsible to these personnel for their respective salaries and all other mandatory statutory benefits.

After the contract was signed, it was revealed, based on research conducted, that MMSI had no other clients except Jolli- Mac, and one of its major owners was a member of the Board of Directors of Jolli-Mac.

Is the Service Agreement between Jolli-Mac and MMSI legal and valid? Why or why not? (3%)
If the cashiers, delivery boys and food servers are not paid their lawful salaries, including overtime pay, holiday pay, 13th month pay, and service incentive leave pay, against whom may these workers file their claims? Explain. (2%)

Among the 400 regular rank-and-file workers of MNO Company, a certification election was ordered conducted by the Med-Arbiter of the Region. The contending parties obtained the following votes:

1. Union A - 70

2. Union B - 71

3. Union C - 42

4. Union D - 33

5. No union - 180

6. Spoiled votes - 4

There were no objections or challenges raised by any party on the results of the election.

Can Union B be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company considering that it garnered the highest number of votes among the contending unions? Why or why not? (3%)
May the management or lawyer of MNO Company legally ask for the absolute termination of the certification election proceedings because 180 of the workers --- a clear plurality of the voters --- have chosen not to be represented by any union? Reasons. (3%)
If you were the duly designated election officer in this case, what would you do to effectively achieve the purpose of certification election proceedings? Discuss. (3%)

XVI

The Company and Triple-X Union, the certified bargaining agent of rank-and-file employees, entered into a Collective Bargaining Agreement (CBA) effective for the period January 1, 2002 to December 31, 2007.

For the 4th and 5th years of the CBA, the significant

improvements in wages and other benefits obtained by the Union were:

1) Salary increases of P1,000 and P1,200 monthly, effective January 1, 2006 and January 1, 2007, respectively;

2) Vacation Leave and Sick Leave were adjusted from 12 days to 15 days annually for each employee;

3) Medical subsidy of P3,000 per year for the purchase of medicines and hospitalization assistance of P10,000 per year for actual hospital confinement;

4) Rice Subsidy of P600 per month, provided the employee has worked for at least 20 days within the particular month; and

5) Birthday Leave with Pay and Birthday Gift of P1,500.

As early as October 2007, the Company and the Union started negotiations to renew the CBA. Despite mutual good faith and earnest efforts, they could not agree. However, no union filed a petition for certification election during the freedom period. On March 30, 2008, no CBA had been concluded. Management learned that the Union would declare a bargaining deadlock on the next scheduled bargaining meeting.

As expected, on April 3, 2008, the Union declared a deadlock. In the afternoon of the same day, management issued a formal announcement in writing, posted on the bulletin board, that due to the CBA expiration on December 31, 2007, all fringe benefits contained therein are considered withdrawn and can no longer be implemented, effective immediately.

When was the "freedom period" referred to in the foregoing narration of facts? Explain. (2%)
After April 3, 2008, will a petition for certification election filed by another legitimate labor union representing the rank-and-file employees legally prosper? Reasons. (3%)
Is management’s withdrawal of the fringe benefits valid?

Reasons. (2%)
If you were the lawyer for the union, what legal recourse or action would you advise? Reasons. (3%)

XVII

Alfredo was dismissed by management for serious misconduct. He filed suit for illegal dismissal, alleging that although there may be just cause, he was not afforded due process by management prior to his termination. He demands reinstatement with full backwages.

What are the twin requirements of due process which the employer must observe in terminating or dismissing an employee? Explain. (3%)
Is Alfredo entitled to reinstatement and full backwages? Why or why not? (3%)

XVIII

Cite four (4) instances when an illegally dismissed employee may be awarded separation pay in lieu of reinstatement. (3%)
Explain the impact of the union security clause to the employees’ right to security of tenure. (2%)

-NOTHING FOLLOWS-

2009 Bar Questions - POLITICAL LAW

2009-10-16T20:44:00.000-07:00

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

A law making "Bayan Ko" the new national anthem of the Philippines, in lieu of "Lupang Hinirang," is constitutional.
Under the archipelago doctrine, the waters around, between, and connecting the islands of the archipelago form part of the territorial sea of the archipelagic state.
A law that makes military service for women merely voluntary is constitutional.
A law fixing the passing grade in the Bar examinations at 70%, with no grade lower than 40% in any subject, is constitutional.
An educational institution 100% foreign-owned may be validly established in the Philippines.

Despite lingering questions about his Filipino citizenship and his one-year residence in the district, Gabriel filed his certificate of candidacy for congressman before the deadline set by law. His opponent, Vito, hires you as lawyer to contest Gabriel's candidacy.

Before election day, what action or actions will you institute against Gabriel, and before which court, commission or tribunal will you file such action/s? Reasons. (2%)
If, during the pendency of such action/s but before election day, Gabriel withdraws his certificate of candidacy, can he be substituted as candidate? If so, by whom and why? If not, why not? (2%)
If the action/s instituted should be dismissed with finality before the election, and Gabriel assumes office after being proclaimed the winner in the election, can the issue of his candidacy and/or citizenship and residence still be questioned? If so, what action or actions may be filed and where? If not, why not? (2%)

III

The Municipality of Bulalakaw, Leyte, passed Ordinance No. 1234, authorizing the expropriation of two parcels of land situated in the poblacion as the site of a freedom park, and appropriating the funds needed therefor. Upon review, the |Sangguniang Panlalawigan of Leyte disapproved the ordinance because the municipality has an existing freedom park which, though smaller in size, is still suitable for the purpose, and to pursue expropriation would be needless expenditure of the people's money. Is the disapproval of the ordinance correct? Explain your answer. (2%)

The Municipality of Pinatukdao is sued for damages arising from injuries sustained by a pedestrian who was hit by a glass pane that fell from a dilapidated window frame of the municipal hall. The municipality files a motion to dismiss the complaint, invoking state immunity from suit. Resolve the motion with reasons. (3%)

To address the pervasive problem of gambling, Congress is considering the following options: (1) prohibit all forms of gambling; (2) allow gambling only on Sundays; (3) allow gambling only in government-owned casinos; and (4) remove all prohibitions against gambling but impose a tax equivalent to 30% on all winnings.

If Congress chooses the first option and passes the corresponding law absolutely prohibiting all forms of gambling, can the law be validly attacked on the ground that it is an invalid exercise of police power? Explain your answer. (2%)
If Congress chooses the last option and passes the corresponding law imposing a 30% tax on all winnings and prizes won from gambling, would the law comply with the constitutional limitations on the exercise of the power of taxation? Explain your answer. (2%)

In a criminal prosecution for murder, the prosecution presented, as witness, an employee of the Manila Hotel who produced in court a videotape recording showing the heated exchange between the accused and the victim that took place at the lobby of the hotel barely 30 minutes before the killing. The accused objects to the admission of the videotape recording on the ground that it was taken without his knowledge or consent, in violation of his right to privacy and the Anti-Wire Tapping law. Resolve the objection with reasons. (3%)

VII

Crack agents of the Manila Police Anti-Narcotics Unit were on surveillance of a cemetery where the sale and use of prohibited drugs were rumored to be rampant. The team saw a man with reddish and glassy eyes walking unsteadily towards them, but he immediately veered away upon seeing the policemen. The team approached the man, introduced themselves as peace officers, then asked what he had in his clenched fist. Because the man refused to answer, a policeman pried the fist open and saw a plastic sachet filled with crystalline substance. The team then took the man into custody and submitted the contents of the sachet to forensic examination. The crystalline substance in the sachet turned out to be shabu. The man was accordingly charged in court.

During the trial, the accused:

challenged the validity of his arrest; (2%) and
objected to the admission in evidence of the prohibited drug, claiming that it was obtained in an illegal search and seizure. (2%)

Decide with reasons.

VIII

Congressman Nonoy delivered a privilege speech charging the Intercontinental Universal Bank (IUB) with the sale of unregistered foreign securities, in violation of R.A. 8799. He then filed, and the House of Representatives unanimously approved, a Resolution directing the House Committee on Good Government (HCGG) to conduct an inquiry on the matter, in aid of legislation, in order to prevent the recurrence of any similar fraudulent activity.

The HCGG immediately scheduled a hearing and invited the responsible officials of IUB, the Chairman and Commissioners of the Securities and Exchange Commission (SEC), and the Governor of the Bangko Sentral ng Pilipinas (BSP). On the date set for the hearing, only the SEC Commissioners appeared, prompting Congressman Nonoy to move for the issuance of the appropriate subpoena ad testificandum to compel the attendance of the invited resource persons.

The IUB officials filed suit to prohibit HCGG from proceeding with the inquiry and to quash the subpoena, raising the following arguments:

The subject of the legislative investigation is also the subject of criminal and civil actions pending before the courts and the prosecutor's office; thus, the legislative inquiry would preempt judicial action; (3%) and
Compelling the IUB officials, who are also respondents in the criminal and civil cases in court, to testify at the inquiry would violate their constitutional right against self-incrimination. (3%)

Are the foregoing arguments tenable? Reasons.
May the Governor of the BSP validly invoke executive privilege and, thus, refuse to attend the legislative inquiry? Why or why not? (3%)

Warlito, a natural-born Filipino, took up permanent residence in the United States, and eventually acquired American citizenship. He then married Shirley, an American, and sired three children. In August 2009, Warlito decided to visit the Philippines with his wife and children: Johnny, 23 years of age; Warlito, Jr., 20; and Luisa, 17.

While in the Philippines, a friend informed him that he could reacquire Philippine citizenship without necessarily losing U.S. nationality. Thus, he took the oath of allegiance required under R.A. 9225.

Having reacquired Philippine citizenship, is Warlito a natural-born or a naturalized Filipino citizen today? Explain your answer. (3%)
With Warlito having regained Philippine citizenship, will Shirley also become a Filipino citizen? If so, why? If not, what would be the most speedy procedure for Shirley to acquire Philippine citizenship? Explain. (3%)
Do the children --- Johnny, Warlito Jr., and Luisa --- become Filipino citizens with their father's reacquisition of Philippine citizenship? Explain your answer. (3%)

Maximino, an employee of the Department of Education, is administratively charged with dishonesty and gross misconduct. During the formal investigation of the charges, the Secretary of Education preventively suspended him for a period of sixty (60) days. On the 60th day of the preventive suspension, the Secretary rendered a verdict, finding Maximino guilty, and ordered his immediate dismissal from the service.

Maximino appealed to the Civil Service Commission (CSC), which affirmed the Secretary's decision. Maximino then elevated the matter to the Court of Appeals (CA). The CA reversed the CSC decision, exonerating Maximino. The Secretary of Education then petitions the Supreme Court (SC) for the review of the CA decision.

Is the Secretary of Education a proper party to seek the review of the CA decision exonerating Maximino? Reasons. (2%)
If the SC affirms the CA decision, is Maximino entitled to recover back salaries corresponding to the entire period he was out of the service? Explain your answer. (3%)

PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%)

Aliens are absolutely prohibited from owning private lands in the Philippines.
A de facto public officer is, by right, entitled to receive the salaries and emoluments attached to the public office he holds.
The President exercises the power of control over all executive departments and agencies, including government-owned or controlled corporations.
Decisions of the Ombudsman imposing penalties in administrative disciplinary cases are merely recommendatory.
Dual citizenship is not the same as dual allegiance.

XII

William, a private American citizen, a university graduate and frequent visitor to the Philippines, was inside the U.S. embassy when he got into a heated argument with a private Filipino citizen. Then, in front of many shocked witnesses, he killed the person he was arguing with. The police came, and brought him to the nearest police station. Upon reaching the station, the police investigator, in halting English, informed William of his Miranda rights, and assigned him an independent local counsel. William refused the services of the lawyer, and insisted that he be assisted by a Filipino lawyer currently based in the U.S. The request was denied, and the counsel assigned by the police stayed for the duration of the investigation.

William protested his arrest.

He argued that since the incident took place inside the U.S. embassy, Philippine courts have no jurisdiction because the U.S. embassy grounds are not part of Philippine territory; thus, technically, no crime under Philippine law was committed. Is William correct? Explain your answer. (3%)
He also claimed that his Miranda rights were violated because he was not given the lawyer of his choice; that being an American, he should have been informed of his rights in proper English; and that he should have been informed of his rights as soon as he was taken into custody, not when he was already at the police station. Was William denied his Miranda rights? Why or why not? (3%)
If William applies for bail, claiming that he is entitled thereto under the "international standard of justice" and that he comes from a U.S. State that has outlawed capital punishment, should William be granted bail as a matter of right? Reasons. (3%)

XIII

A terrorist group called the Emerald Brigade is based in the State of Asyaland. The government of Asyaland does not support the terrorist group, but being a poor country, is powerless to stop it.

The Emerald Brigade launched an attack on the Philippines, firing two missiles that killed thousands of Filipinos. It then warned that more attacks were forthcoming. Through diplomatic channels, the Philippines demanded that Asyaland stop the Emerald Brigade; otherwise, it will do whatever is necessary to defend itself.

Receiving reliable intelligence reports of another imminent attack by the Emerald Brigade, and it appearing that Asyaland was incapable of preventing the assault, the Philippines sent a crack commando team to Asyaland. The team stayed only for a few hours in Asyaland, succeeded in killing the leaders and most of the members of the Emerald Brigade, then immediately returned to the Philippines.

Was the Philippine action justified under the international law principle of "self-defense"? Explain your answer. (3%)
As a consequence of the foregoing incident, Asyaland charges the Philippines with violation of Article 2.4 of the United Nations Charter that prohibits "the threat or use of force against the territorial integrity or political independence of any State." The Philippines counters that its commando team neither took any territory nor interfered in the political processes of Asyaland. Which contention is correct? Reasons. (3%)
Assume that the commando team captured a member of the Emerald Brigade and brought him back to the Philippines. The Philippine Government insists that a special international tribunal should try the terrorist. On the other hand, the terrorist argues that terrorism is not an international crime and, therefore, the municipal laws of the Philippines, which recognize access of the accused to constitutional rights, should apply. Decide with reasons. (3%)

XIV

The Philippine Government is negotiating a new security treaty with the United States which could involve engagement in joint military operations of the two countries' armed forces. A loose organization of Filipinos, the Kabataan at Matatandang Makabansa (KMM) wrote the Department of Foreign Affairs (DFA) and the Department of National Defense (DND) demanding disclosure of the details of the negotiations, as well as copies of the minutes of the meetings. The DFA and the DND refused, contending that premature disclosure of the offers and counter-offers between the parties could jeopardize on-going negotiations with another country. KMM filed suit to compel disclosure of the negotiation details, and be granted access to the records of the meetings, invoking the constitutional right of the people to information on matters of public concern.

Decide with reasons. (3%)
Will your answer be the same if the information sought by KMM pertains to contracts entered into by the Government in its proprietary or commercial capacity? Why or why not? (3%)

The KKK Television Network (KKK-TV) aired the documentary, "Case Law: How the Supreme Court Decides," without obtaining the necessary permit required by P.D. 1986. Consequently, the Movie and Television Review and Classification Board (MTRCB) suspended the airing of KKK-TV programs. MTRCB declared that under P.D. 1986, it has the power of prior review over all television programs, except "newsreels" and programs "by the Government", and the subject documentary does not fall under either of these two classes. The suspension order was ostensibly based on Memorandum Circular No. 98-17 which grants MTRCB the authority to issue such an order.

KKK-TV filed a certiorari petition in court, raising the following issues:

The act of MTRCB constitutes "prior restraint" and violates the constitutionally guaranteed freedom of expression; (3%) and
While Memorandum Circular No. 98-17 was issued and published in a newspaper of general circulation, a copy thereof was never filed with the Office of the National Register of the University of the Philippines Law Center. (2%)

Resolve the foregoing issues, with reasons.

XVI

Angelina, a married woman, is a Division Chief in the Department of Science and Technology. She had been living with a married man, not her husband, for the last fifteen (15) years. Administratively charged with immorality and conduct prejudicial to the best interest of the service, she admits her live-in arrangement, but maintains that this conjugal understanding is in conformity with their religious beliefs. As members of the religious sect, Yahweh's Observers, they had executed a Declaration of Pledging Faithfulness which has been confirmed and blessed by their Council of Elders. At the formal investigation of the administrative case, the Grand Elder of the sect affirmed Angelina's testimony and attested to the sincerity of Angelina and her partner in the profession of their faith. If you were to judge this case, will you exonerate Angelina? Reasons. (3%)
Meanwhile, Jenny, also a member of Yahweh's Observers, was severely disappointed at the manner the Grand Elder validated what she considered was an obviously immoral conjugal arrangement between Angelina and her partner. Jenny filed suit in court, seeking the removal of the Grand Elder from the religious sect on the ground that his act in supporting Angelina not only ruined the reputation of their religion, but also violated the constitutional policy upholding the sanctity of marriage and the solidarity of the family. Will Jenny's case prosper? Explain your answer. (2%)

XVII

Filipinas Computer Corporation (FCC), a local manufacturer of computers and computer parts, owns a sprawling plant in a 5,000-square meter lot in Pasig City. To remedy the city's acute housing shortage, compounded by a burgeoning population, the Sangguniang PanglungsodSanggunian intends to subdivide the property into small residential lots to be distributed at cost to qualified city residents. But FCC refused to sell the lot. Hard pressed to find a suitable property to house its homeless residents, the City filed a complaint for eminent domain against FCC. authorized the City Mayor to negotiate for the purchase of the lot. The

If FCC hires you as lawyer, what defense or defenses would you set up in order to resist the expropriation of the property? Explain. (5%)
If the Court grants the City's prayer for expropriation, but the City delays payment of the amount determined by the court as just compensation, can FCC recover the property from Pasig City? Explain. (2%)
Suppose the expropriation succeeds, but the City decides to abandon its plan to subdivide the property for residential purposes having found a much bigger lot, can FCC legally demand that it be allowed to repurchase the property from the City of Pasig? Why or why not? (2%)

XVIII

What are the essential elements of a valid petition for a people's initiative to amend the 1987 Constitution? Discuss. (2%)

-NOTHING FOLLOWS-

How to Pass the Philippine Bar Examinations - Full Report by Justice A. Melencio-Herrera

2009-08-27T18:49:00.000-07:00

OBSERVATION ON THE 1980 PHILIPPINE BAR EXAMINATIONS – Full report

The following are excerpts from the actual reports of the 1980 Bar Examiners submitted to, and released to the law schools by, Madam Justice Ameurfina Melencio-Hererra, Chairperson of the 1980 Committee on Bar Examinations. I have already made a summary of this report and has posted it in this blog in the post entitled “How to pass the Philippine bar exams.” However I believe that law students and law professors will gain more by reading the full report. Although this report was made more than 27 years ago, the lessons that can be gleaned are timeless and can still very much apply to those who will be taking the Philippine bar exams. This report is also useful for law professors and law schools as this will help us re-evaluate our teaching methods in order to effectively help our students hurdle the hardest exam in the Philippines, the bar exams.

The report starts out with these interesting observations:

1. With a relatively few notable exceptions, I observed a deficiency in the examinees’ ability to express properly and concisely their answer to the questions.

2. Likewise, with a few notable exceptions, the analytic or logical process left much to be desired.

3. Knowledge of the fundamental legal principles was lacking in many instances.

4. Only in a few instances was there a command of the English language.

Recommendation for consideration

1. The elevation of the standards of legal education and instruction, i.e., a more intensive preparation in the legal fundamentals necessary for the assumption of office as a member of the Bar.

2. Require additional courses even in law school proper in the fields of English composition and grammar for those who are deficient in their ability to express and convey their ideas.

Additional recommendation on the grading system

The present grading system tends lo lay stress on competitive performance. And yet, difference in decimal points could be subjective and may not do justice to the competitors, Perhaps, the shift should be towards the assessment of each, individual candidate’s performance. I would categorize the candidates’ performance into just three (3) classes, namely: (1) failure, (2) passing and (3) outstanding without giving any grades in specific figures.

Finally, the unknown identity of the examiners even among themselves (except to the Chairman) until the final submission of the candidate’s performance is to be commended as a meritorious feature in the conduct of Bar examinations and should be adopted as a norm for future examinations. It is obvious that it insulates the examiner from unhealthy representations on the part of interested parties and it should encourage a more respectful attitude towards the Bar examinations.

1. Very many examinees, to put it mildly, “murder” the English language. Some are worse than high school undergraduates.

2. They fail to analyze and understand the question thoroughly, where oftentimes the answer is found or suggested in it.

3. They base their answer not on the specific import or meaning of the question but on the association they believe the question has with a vague knowledge of the legal provision that instantly comes into their minds. The results is an answer given without reflection that obviously misses the point or fails to obtain full credit.

4. There are few examinees who just do not have the mental capacity for the law profession. Taking the examinations for any number of times may only be an exercise in futility.

5. Handwritings of some are difficult to read or “decipher”. Apparently, the examinees concerned do not make any sincere or serious effort to make them readable.

The ink used spreads or the ballpen is too fine or light and blue. Both make correction of the papers an ordeal to the examiner who has to change his correction speed to very slow.

6. Many examinees also need, aside from the English language, a refresher course in logic. They give inconsistent or conflicting positions in one answer and do not know how to analyze problems.

7. Many examinees do not follow instructions. Few give a “Yes” or “No”, making the examiner guess just what they mean in their vague discussion. Others copy the question first before answering. Still others over several pages and making correction difficult, or they write on both sides of the page.

8. Many examinees do not review their answers. Many answers have been found lacking not only several words but important ones as well which spell the difference between correct and wrong answers.

1. Many candidates did not know specific provisions of the Civil Code on Torts and Damages. This may be due to the fact that the subject of Torts and Damages was not given much attention in the basic law course and in the bar review because in the past, this field of law was rarely the subject of the bar questions. And yet, the importance of this branch of civil law cannot be ignored considering that most civil cases filed in our courts involved torts and damages. Our lawyer must, therefore, be more familiar with this important branch of civil law before they are allowed to practice. I respectfully recommend that in future bar examinations torts and damages be listed among the divisions of civil law to be considered in the bar examinations.

2. Many candidates were familiar with cases decided by the Supreme Court and some even mentioned their titles. Unfortunately, however, a good number did not know the fundamental legal principles enunciated in such decisions. Considering that under the civil law system, which is the system followed in the Philippine, the rules of law are found in the codes, unlike the common law where the law is found in the cases, it is evident that a knowledge and understanding of the law as found in the codes is more important than a knowledge of the cases. In actual litigations most cases are resolved by the very law itself and the problem for the lawyer and court lies more in finding the specific law applicable to the case rather than find a decided case on which to base a decision. Therefore, with all due respect, I submit that more emphasis should be given in the bar examinations on the knowledge of the law and the fundamental principles rather on the knowledge of specific cases.

3. I agree that definitions and distinctions, enumerations and memory work should not be the criteria in the bar examinations and that all bar questions be in the form of problems and cases. But may I suggest and recommend that the problems and questions be based on codal provisions and fundamental principles of civil law which law practitioners are likely to face in their practice rather than extra practitioners are likely to face in their practice rather than extra ordinary situations that rarely confront our courts and practitioners.

4. A number of candidates could not write legibly. I found it hard to read their answers and much time was wasted in deciphering what they wanted to say. Bar candidates should be advised to write legibly.

5. Many candidates did not use the proper tenses. Bar candidates should be advice to be more careful with their tenses and try to aim at clarity in their answer.

6. Some candidates do not follow the numbers correlatively in answering the questions. They jump over some numbers and do not indicate where the answer may be found thus making the correction more difficult, confusing and time consuming.

7. Some candidates have resorted to what they called “alternative answer” by discussing both sides of the problem and arriving at opposing conclusions. Considering that most problems in the bar have to sides the appraisal and grading of those “alternative answer become more difficult. In my view this should be avoided.

Except for some exceptions, the ability of the examinees to present their opinions and thoughts on the questions asked was creditable. There were misspelling wrong grammar and a number of omissions but they are acceptable and not glaring, considering the pressure on the examinees and the time constraints.

What is apparent, however, is the general misconception of the principles of taxation in relation to the whole context of taxation, as well as its practical application especially in the light of other applicable laws. Reading the answers, it seems that the approach to taxation is divided into two approaches. One is that taxation is a necessity and, therefore, tax laws must be legal. Second thought is that taxes are burdens on the citizenry and, therefore, must be considered illegal The Method of teaching taxation must have been rather simplistic with no aim to apply the tax laws on our day to day dealings. As this was apparent, the undersigned tended to be more lenient in her corrections of the test papers.

It is observed that using December 31, 1979 as the cut-off date for sourcing the questions is rather restrictive and does not give the examiner sufficient leeway especially in topics where major changes, even on concepts, are effected by the government. Since most of the students will be taking pre-bar review, wouldn’t April or May be a better date? At least questions will be more current.

The procedure by which the test papers were given to us, the checks and counter checks by the bar confidant and others who were participating in the handling of the test papers to maintain the integrity of the bar leaves nothing to be desired. Full cooperation was given by them.

1. The 1980 Examinations, under the strict monitoring and guidance of the Chairman, have succeeded in maintaining the complete confidentiality of the identities of the BAR examiners. This was achieved by the adoption of the following measures:

2. The poor grammar, limited vocabulary, redundancy and unorganized presentation of the issues involved have a caused a telling effect of the percentage of passing in Mercantile Law.

3. The allocation of certain percentages on the number of question given to each subdivision of the bar subject has assured a uniform stress, thereby avoiding the concentration of questions on a particular law or subdivision.

4. Despite the written instructions, a great number of the examinees have repeated verbatim the facts of the case and the question. This has wasted the examiner’s time and effort in correcting the papers.

On November 16, 1980, there were 1,798 bar candidates who took the examination in criminal law, out of this number, 594 successfully passed or 33%, while 1,204 failed, 221 of whom are disqualified for having obtained a grade below 50%.

1. Substandard collegiate or academic training, resulting in the insufficient knowledge of the law and its application; and

2. Inadequate command of the English language.

These observations may be properly shown by quoting answers of a certain examinees to a question thus propounded as follows:

Question No. 6(b) – “An accused was found guilty of double murder and was meted out two sentences of reclusion perpetua. How would be the accused serve the sentences?”

Answer – “Both penalties must be served by the accused, and he was electrocuted and died then it washes out the remaining sentence to served by the accused.”

Quoted hereunder is another question to which the examinees concerned gave his answer as follows:

Question No. 11. – “Patrolman Cruz, acting under orders of the Municipal Mayor, Who wanted to put a stop to the frequent occurrence of robbery in Sitio Masukal, patrolled the place. At about midnight, seeing three persons acting suspiciously in front of an uninhabited house and entering the same, he arrested them without warrant and took them to the municipal building where they were detained in jail for about five hours before they where released.

Patrolman Cruz was accused of arbitrary detention. If you were the Judge, would you convict him of the crime charged?”

Answer – “No. considering his possession as peace officer by the higher authority to patrol the place where robbery are frequent. The one responsible for this is the Municipal Mayor who order without warrant of arrest and the act of the patrolman are in good faith believing to be a robbery entering a house.

So the proper party liable is the Municipal Mayor.”

Most, if not all, who obtained failing grades have different unique ways of answering questions which only tends to show either because of poor scholastic training or lack of preparation not only in their collegiate or academic courses but may also be traceable to their primary and secondary education.

The majority of those who failed in the subject have also manifestly shown their poor command of the English language, such that certain examinees may probably know the law nut they lack the ability to express themselves. The results is that, one will find it very difficult to understand what they really wanted to convey in their answer to the question propounded.

As an example, I hereby refer to the answer of another examinee to question No. 17. herein below quoted as follows:

Question No. 17 – “AA” was the owner of a jeepney for hire. When his driver was hospitalized, he hired “BB” as driver on a temporary basis and entrusted to him the vehicle for transporting passengers from Quiapo to Baclaran with a compensation of P30.00 a day. “BB” never returned the vehicle and after search the vehicle was found in Tarnate, Cavite, About to be sold. “BB” was charged with Qualified Theft and was convicted .

Appealing the judgment of conviction, defense counsel contends that “BB” may have committed Esta fa but not Qualified Theft on the theory that the position of the vehicle was obtained with the consent of “AA” the owner, and therefore, there was no illegal taking.

Decide the case.”

In answer thereto, the particular examinees gave the following answer:

“The defense counsel of the accused contention in untenable assuming now that there is no illegal taking of the jeep from “AA”. The owner but “BB” a temporary driver hired by “AA” failure to return the jeep such vehicle as now ready to be sold by “BB” have an intent to gain is theft cases as an element.

It may not be amiss to state in this connection, that there are also hundreds of them whose penmanship is almost illegible.

Several examinees have made very unsatisfactory showing to such an extent that there is one who obtained a grade as low as 7% another obtained a grade of 11%; still some others obtained grades of 12%; 16%; 17%; 18%; 19%; 20%; 21%; 24%; 25%; 26%; 27%; 31%; 34%; etc.

Due to this very poor showing of a considerable number of examinees, in order to avoid unnecessary waste of time, money and energy and in order to give the students concerned advice to shift to other course before it is too late, it is suggested that before a law student is allowed to enroll in the College of Law proper, he should first pass an entrance examination, to be given under the supervision of the Supreme Court. More or less, the examination to be given should cover the following subjects: (1) Elementary Law; (2) Logic; (3) English and Composition, etc.

It is further suggested that in order to afford bar examinees a better opportunity to pass the given subjects, at least 30 questions should be propounded in each subjects and the examinees allowed to answer a choice of twenty questions.

(1) The candidates should be required to write their answers on every other line, thus leaving a blank space between lines. This will facilitate correction, especially as many scrawl their answers and there is abundance of poor penmanship. Beside, almost all notebooks are less than half-filled so that there will be no problem of pages to write on.

(2) Answer should be separated from one another by at least two space-lines. This will facilitate identification of answer and obviate the review (resulting in time consumed, which could be otherwise invested in further correction) of questions overlooked by the candidate or not answered at all.

(3) Unless there is a very imperative reason for requiring the examiner to date every initial, this should not be required. Too much time is wasted.

(4) A device should be adopted so that the examiner will not have to write on two separate grading sheets. Instead carbonized paper or similar duplicatory means, should be used. This will eliminate errors committed while transposing the grades on the second grading sheet, and more important, it will save time. More than half an hour is consumed every time grades of 25 notebooks are duplicated on the grading sheet (or an average of more than three hours per 200 notebooks) – time which could, instead, be spent correcting notebooks.

It with be noted that no suggestions on “substantive” aspects have been made because the writer believes that she is still not in a position to suggest further development in that respect.

I. Conduct of the Examination

As far as I know there has been no word, whether publicly made or circulated in whisper, of any leakage of questions or even merely of the identities of the examiners. The story going around, according to a law faculty member of the UST and lecturer at the U.P. College of law, is that in the Bar examinations there was only one examiner for all the subjects: Justice Herrera herself.

While this rumor may be laced with some humor, it points up nonetheless the successful safeguarding of the integrity of the examination.

II. Showing of the Examinees

In Legal Ethics and Practical Exercise , 620 examinees out of 1,792 applicants (or 34.6%) obtained a grade of 75% or higher. 1,172 failed to make the passing grade; included in this number are 119 applicants whose grades were lower than 50%. Grades ranged from a high of 93% to a disquieting low of 7%. A profile of grade-distribution is appended to this report.

The examinees inhabiting the lowermost rungs of the grading scale manifested not alone an appalling lack of knowledge of the fundamental principles involved in the examination questions but also an inability to logically string their thoughts together compounded by an almost incredible deficiency in language skills.

That is not to say that everyone who received higher grades demonstrated no language difficulties. It may in fact be justifiably said that a commendable command of language is the fortune of but a few of the examinees.

III. Other Matters

(a) Comment on the relative weight of legal Ethics.

Rule 138 allocates the combination of Legal Ethics and Practical Exercise a relative weight of 5% in the Bar examination. Because of the joinder of these two non-homogeneous subjects, it has of course been necessary to apportion the rather meager 5% between Legal Ethics on the one hand and, on the other, Practical Exercise. In this year’s examination. The apportionment is 70% for the first and 30% for the other.

In overall terms, therefore, the effective relative weight of Legal Ethics is only 3.5% (this being 70% of 5%), and that of Practical Exercise 1.5% (being 30% of 5%).

One question that may be asked is whether it is worth examining Bar applicants in full subjects with effective relative weights that, by mathematical calculation, would require almost 30 points (in Legal Ethics) or some 67 points (in Practical Exercise) to effect a single point differential in the overall Bar examination average of an examinee.

A more basic observation, however, arises out of a comparison between Legal Ethics 3.5% and Taxation’s 10%. The relative weight of the first is only a third of the second, But we do know that ethics is bedrock matter to the profession. While its articulation in codal or canonical form may vary from time to time, the basic principles by which a lawyer’s conduct must ever be guided are virtually unchanging, if these are not at all unchangeable. On the other, tax laws in particular undergo changes with rapidity that leaves even the tax practitioners gasping in trying to catch up, so that passable knowledge of tax laws now could mean nothing after we no more than a few years. Yet, taxation in effect is recognized in quantitative terms as three times more important than legal ethics.

It may be a manner if looking at the conclusion of Legal Ethics in the Bar examination, considering the feathery weight allocated to the subject, as but a grudging concession to the ethical aspects of the ancient and honorable profession of the law.

May not a re-appraisal be in order?

(b) The Bar examination as a device to re-orient the educative process.

While passing the Bar examinations has not been conceded by the law schools as an end in the educative process of a lawyer, Dean Irene Cortes has noted that.

***what has developed in most schools is that it has become the principal goal. The curriculum, method of instruction, the review courses in the fourth year-all contribute to emphasize this.”

It seems from the observation of Dean Cortes that the currently predominant stress in instruction has been a sort of reaction to Bar examinations which have largely been a test of knowledge of the law’s content, with scant requirement for demonstration of the applicant’s proficiency in analytical and reasoning techniques associated with the exercise of the profession of the law.

This caused-and-effect relation, so far productive of less than ideal results, indicates that it is possible to cause a re-orientation of the stress in instruction in the law schools by institutionalizing the type of Bar examination that, to enable their law graduates to hurdle the same, would compel the law schools to shift their emphasis instruction towards techniques rather than mere content. For instance, If it were regularly made a part of the Bar examination questions involving problem-situations to ask the examinees to identity the issue, law schools would have to teach their students the techniques in issue identification and not simply to know what the law is. I use this as an example because many examinees in Legal Ethics and Practical Exercise went off-track in problem-solving due to error in perceiving the issues.

The possibilities of the Bar examination as a device with which to trigger off the orientation can only be expressed in general terms here. Obviously, the fashioning of specifics will require a detailed study.

Republic Act No. 9646, Real Estate Service Act of the Philippines

2009-08-27T09:01:00.000-07:00

Republic of the Philippines
Congress of the Philippines
Metro Manila

Fourteenth Congress
Second Regular Session

Begun and held in Metro Manila, on Monday, the twenty-eight day of July, two thousand eight.

Republic Act No. 9646 June 29, 2009

AN ACT REGULATING THE PRACTICE OF REAL ESTATE SERVICE IN THE PHILIPPINES, CREATING FOR THE PURPOSE A PROFESSIONAL REGULATORY BOARD OF REAL ESTATE SERVICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

ARTICLE I
TITLE, DECLARATION OF POLICY AND DEFINITION OF TERMS

Section 1. Title. - This Act shall be known as the. "Real Estate Service Act of the Philippines".

Section 2. Declaration of Policy. - The State recognizes the vital role of real estate service practitioners in the social political, economic development and progress of the country by promoting the real estate market, stimulating economic activity and enhancing government income from real property-based transactions. Hence, it shall develop and nurture through proper and effective regulation and supervision a corps of technically competent, responsible and respected professional real estate service practitioners whose standards of practice and service shall be globally competitive and will promote the growth of the real estate industry.

Section 3. Definition of Terms. - As used in this Act, the following terms shall mean:

(a) "Appraiser" also known as valuer, refers to a person who conducts valuation/appraisal; specifically, one who possesses the necessary qualifications, license, ability and experience to execute or direct the valuation/appraisal of real property.

(b) "Assessor" refers to an official in the local government unit, who performs appraisal and assessment of real properties, including plants, equipment, and machineries, essentially for taxation purposes. This definition also includes assistant assessors.

(c) "Real estate" refers to the land and all those items which are attached to the land. It is the physical, tangible entity, together with all the additions or improvements on, above or below the ground.

(d) "Real estate development project" means the development of land for residential, commercial, industrial, agricultural, institutional or recreational purposes, or any combination of such including, but not limited to, tourist resorts, reclamation projects, building or housing projects, whether for individual or condominium ownership, memorial parks and others of similar nature.

(e) "Real estate developer" refers to any natural or juridical person engaged in the business of developing real estate development project for his/her or its own account and offering them for sale or lease.

(f) "Real property" includes all the rights, interests and benefits related to the ownership of real estate.

(g) "Real estate service practitioners" shall refer to and consist of the following:

(1) Real estate consultant - a duly registered and licensed -natural person who, for a professional fee, compensation or other valuable consideration, offers or renders professional advice and judgment on: (i) the acquisition, enhancement, preservation, utilization or disposition of lands or improvements thereon; and (ii) the conception, planning, management and development of real estate projects.

(2) Real estate appraiser- a duly registered and licensed natural person who, for a professional fee, compensation or other valuable consideration, performs or renders, or offers to perform services in estimating and arriving at an opinion of or acts as an expert on real estate values, such services of which shall be finally rendered by the preparation of the report in acceptable written form.

(3) Real estate assessor - a duly registered and licensed natural person who works in a local government unit and performs appraisal and assessment of real properties, including plants, equipment, and machineries, essentially for taxation purposes.

(4) Real estate broker - a duly registered and licensed natural person who, for a professional fee, commission or other valuable consideration, acts as an agent of a party in a real estate transaction to offer, advertise, solicit, list, promote, mediate, negotiate or effect the meeting of the minds on the sale, purchase, exchange, mortgage, lease or joint venture, or other similar transactions on real estate or any interest therein.

(5) Real estate salesperson - a duly accredited natural person who performs service for, and in behalf of. a real estate broker who is registered and licensed by the Professional Regulatory Board of Real Estate Service for or in expectation of a share in the commission, professional fee, compensation or other valuable consideration.

ARTICLE II
PROFESSIONAL REGULATORY BOARD OF REAL ESTATE SERVICE

Section 4. Creation and Composition of the Board. - There is hereby created a Professional Regulatory Board of Real Estate Service, hereinafter referred to as the Board, under the supervision and administrative control of the Professional Regulation Commission (PRC), hereinafter referred to as the Commission, composed of a chairperson and four (4) members who shall be appointed by the President of the Philippines from the three (3) recommendees chosen by the Commission from a list of five (5) nominees per position submitted by the accredited and integrated professional organization of real estate service practitioners: Provided, That two (2) of the members of the Board shall represent the government assessors and appraisers.

The first Board shall be organized within six (6) months from the effectivity of this Act.

Section 5. Powers and Functions of the Board. - The Board is hereby vested the following powers and functions:

(a) Provide comprehensive policy guidelines for the promotion and development of the real estate industry;

(b) Conduct licensure examinations for the practice of the real estate service profession and prescribe the appropriate, syllabi of the subjects for examination;

(c) Issue, suspend, revoke or reinstate, after due notice and hearing, certificates of registration or professional identification cards for the practice of real estate service;

(d) Maintain a comprehensive and updated register of licensed real estate service professionals;

(e) Monitor the conditions affecting the practice of real estate service and adopt such measures as may be proper for the enhancement of the profession and/or the maintenance of high professional, ethical and technical standards;

(f) Adopt a national Code of Ethics and Responsibilities to be strictly observed by all licensed real estate service practitioners;

(g) Hear or investigate any violation of this Act, its implementing rules and regulations, and the Code of Ethics and Responsibilities for real estate service practitioners and issue subpoena and subpoena duces tecum to secure the appearance of witnesses and the production of documents in connection therewith;

(h) Safeguard and protect legitimate and licensed real estate service practitioners and, in coordination with the accredited and integrated professional organization of real estate service practitioners, monitor all forms of advertisements, announcements, signboards, billboards, pamphlets, brochures and others of similar nature concerning real estate and, where necessary, exercise its quasi-judicial and administrative powers to finally and completely eradicate the pernicious practices of unauthorized or unlicensed individuals;

(i) Prescribe, in cooperation with the Commission on Higher Education (CHED) or the concerned state university or college, the essential requirements as to the curricula and facilities of schools, colleges or universities seeking permission to open academic courses or already offering such courses in real estate service, and to see to it that these requirements, including the employment of qualified faculty members, are properly complied with;

(j) Promulgate, .administer and enforce rules and regulations necessary in carrying out the provisions of this Act;

(k) Supervise and regulate the registration, licensure and practice of real estate service in the Philippines;

(l) Assess and fix the rate of reasonable regulatory fees;

(m) Administer oaths and affirmations;

(n) Adopt an official seal of the Board;

(o) Evaluate periodically the status of real estate service education and profession, and recommend and/or adopt measures to upgrade and maintain its high standard;

(p) Prescribe guidelines and criteria for the Continuing Professional Education (CPE) program for real estate service practitioners in consultation with the accredited and integrated professional organization of real estate service practitioners;

(q) Screen, issue and monitor permits to organizations of real estate professionals in the conduct of seminars and accredit such seminars pursuant to the CPE program, as well as the instructors or lecturers therein, for the purpose of upgrading the quality and knowledge of the profession;

(r) Monitor and supervise the activities of the accredited and integrated professional organization and other associations of real estate service practitioners; and

(s) Discharge such other powers, duties and functions as the Commission may deem necessary to carry out the provisions of this Act.

The policies, resolutions and rules and regulations issued or promulgated by the Board shall be subject to the review and approval by the Commission. However, the Board's decisions, resolutions or orders which are not interlocutory, rendered in an administrative case, shall be subject to review by the Commission only on appeal.

Section 6. Qualifications of the Chairperson and Members of the Board. - The chairperson and the members of the Board shall, at the time of their appointment, possess the following qualifications:

(a) A citizen and resident of the Philippines;

(b) A holder of a bachelor's degree related to real estate;

(d) A bona fide member in good standing of the accredited and integrated professional organization of real estate service practitioners but not an officer or trustee at the time of his/her appointment;

(e) Neither be a member of the faculty of an institute, school, college or university, nor have any pecuniary interest, direct or indirect, in any institution or association where review classes or lectures in preparation for the licensure examination are being offered or conducted; and

(f) Of good moral character, and must not have been convicted by final judgment by a competent court of a criminal offense involving moral turpitude.

Section 7. Term of Office. - The chairperson and the members of the Board shall hold office for a term of three (3) years from the date of their appointment and until their successor/s shall have been appointed: Provided, That the members of the first appointed Board shall hold office for the following terms: one (1) member as chairperson, to serve for three (3) years; two (2) members, to serve for two (2) years; and two (2) members, to serve for one (1) year.

The chairperson and the members of the Board may be reappointed for a second term but in no case shall he/she serve continuously for more than six (6) years. Any vacancy in the Board shall be filled for the unexpired portion of the term of the member who vacated the position. On the constitution of the first Board, the chairperson and the members of the Board shall automatically be registered and issued certificates of registration and professional identification cards. Each member of the Board shall take the proper oath of office prior to the assumption of duty.

Section 8. Compensation and Allowances of the Chairperson and Members of the Board. - The chairperson and the members of the Board shall receive compensation and allowances comparable to the compensation and allowances received by the chairman and the members of existing professional regulatory boards under the Commission, as provided for in the General Appropriations Act.

Section 9. Removal of the Chairperson and Members of the Board. - The chairperson or any member of the Board may be suspended or removed by the President of the Philippines, upon the recommendation of the Commission, for neglect of duty; abuse of power; oppression; incompetence; unprofessional, unethical, immoral or dishonorable conduct; commission or toleration of irregularities in the conduct of examination or tampering of the grades therein, or for any final judgment or conviction of any criminal offense involving moral turpitude.

Section 10. Supervision of the Board, Custodian of its Records, Secretariat and Support Services. - The Board shall be under the general supervision and administrative control of the Commission. All records of the Board, including applications for examination, examination papers and results, minutes of deliberations, administrative and other investigative cases involving real estate service practitioners, shall be kept by the Commission. The Commission shall designate the secretary of the Board and shall provide the secretariat and other support services to implement the provisions of this Act subject to the usual government accounting and auditing rules and regulations.

Section 11. Annual Report. - The Board shall, at the close of each calendar year, submit an annual report to the Commission, giving a detailed account of its proceedings and accomplishments during the year and recommending measures to be adopted with the end-in-view of upgrading and improving the conditions affecting the practice of real estate service in the Philippines.

ARTICLE III
LICENSURE EXAMINATION AND REGISTRATION

Section 12. Licensure Examination. - Every applicant seeking to be registered and licensed as a real estate service practitioner, except a real estate salesperson, shall undergo an examination as provided for in this Act. Examinations for the practice of real estate service in the Philippines shall be given by the Board at least once every year in such places and dates as the Commission may designate.

Section 13. Scope of Examination. - An examination shall be given to the licensure applicants for real estate brokers, real estate appraisers and real estate consultants which shall include, but not limited to, the following:

(a) For real estate consultants - fundamentals of real estate consulting; standards and ethics; consulting tools and techniques, which include project feasibility study and investment measurement tools; real estate finance and economics; real estate consulting and investment analyses; consulting for specific engagement, which includes consulting for commercial, industrial, recreation and resort and hotel properties, and consulting for government and corporate and financial institutions; land management system and real property laws; and any other related subjects as may be determined by the Board;

(b) For real estate appraisers - fundamentals of real estate principles and practices; standards and ethics; theories and principles in appraisal; human and physical geography; methodology of appraisal approaches; valuation procedures and research; appraisal of machinery and equipment; practical appraisal mathematics; appraisal report writing; real estate finance and economics; case studies; land management system and real property laws; and any other related subjects as may be determined by the Board; and

(c) For real estate brokers - fundamentals of property ownership; code of ethics and responsibilities; legal requirements for real estate service practice; real estate brokerage practice; subdivision development; condominium concept; real estate finance and economics; basic principles of ecology; urban and rural land use; planning, development and zoning; legal aspect of sale, mortgage and lease; documentation and registration; real property laws; and any other related subjects as may be determined by the Board.

To conform with technological and modern developments, the Board may recluster, rearrange, modify, add to, or exclude any of the foregoing subjects as may be necessary.

Section 14. Qualification of Applicants for Examinations. - In order to be admitted to the licensure examination for real estate service, a candidate shall, at the time of filing his/her application, establish to the satisfaction of the Board that he/she possesses the following qualifications:

(a) A citizen of the Philippines;

(b) A holder of a relevant bachelor's degree from a state university or college, or other educational institution duly recognized by the CHED: Provided, That as soon as a course leading to a Bachelor's degree in Real Estate Service is implemented by the CHED, the Board shall make this course a requirement for taking the "licensure examination; and

(c) Of good moral character, and must not have been convicted of any crime involving moral turpitude: Provided, That an applicant for the licensure examination for real estate consultants must show proof that he/she has at least ten (10) years experience as a licensed real estate broker or an assessor, or as a bank or institutional appraiser or an employed person performing real property valuation, or at least five (5) years experience as a licensed real estate appraiser.

All applications for examination shall be filed with the Board which shall assess and approve said applications and issue to the qualified examinees the corresponding permits to take such examination.

Section 15. Ratings in the Examination. - In order that a candidate may be deemed to have successfully passed the examination, he/she must have obtained an average of at least seventy-five percent (75%) in all subjects, with no rating below fifty percent (50%) in any subject.

Section 16. Release of the Results of Examination. - The results of the licensure examination shall be released by the Board within ten (10) days from the last day of the examination.

Section 17. Issuance of the Certificate of Registration and Professional Identification Card. - A certificate of registration shall be issued to examinees who pass the licensure examination for real estate service subject to payment of fees prescribed by the Commission. The certificate of registration shall bear the signature of the chairperson of the Commission and the chairperson and the members of the Board, stamped with the official seal of the Commission, indicating that the person named therein is entitled to practice the profession with all the benefits and privileges appurtenant thereto. This certificate of registration shall remain in full force and effect until revoked or suspended in accordance with this Act.

A professional identification card bearing the registration number, date of issuance and expiry date, duly signed by the chairperson of the Commission, shall likewise be issued to every registrant upon payment of the required fees. The professional identification card shall be renewed every three (3) years and upon satisfying the requirements of the Board such as, but not limited to, attendance in the CPE program.

Section 18. Refusal to Register. - The Board shall not register and issue a certificate of registration to any successful examinee who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude or has been found guilty of immoral or dishonorable conduct after investigation by the Board, or has been found to be psychologically unfit.

Section 19. Revocation or Suspension of the Certificate of Registration and the Professional Identification Card or Cancellation of Special/Temporary Permit. - The Board may, after giving proper notice and hearing to the party concerned, revoke the certificate of registration and the professional identification card, or cancel the special/temporary permit of a real estate service practitioner, or suspend him/her from the practice of the profession on any of the following instances hereunder:

(a) Procurement of a certificate of registration and/or professional identification card, or special/temporary permit by fraud or deceit;

(b) Allowing an unqualified person to advertise or to practice the profession by using one's certificate of registration or professional identification card, or special/temporary permit;

(d) Malpractice or violation of any of the provisions of this Act, its implementing rules and regulations, and the Code of Ethics and Responsibilities for real estate service practitioners; and

(e) Engaging in the practice of the profession during the period of one's suspension.

Section 20. Registration Without Examination, - Upon application and payment of the required fees, the following shall be registered, and shall be issued by the Board and the Commission a certificate of registration and a professional identification card without taking the prescribed examination:

(a) Those who, on the date of the effectivity of this Act, are already licensed as real estate brokers, real estate appraisers or real estate consultants by the Department of Trade and Industry (DTI) by virtue of Ministry Order No. 39, as amended: Provided, That they are in active practice as real estate brokers, real estate appraisers and real estate consultants, and have undertaken relevant CPE to the satisfaction of the Board;

(b) Assessors and appraisers who, on the date of the effectivity of this Act, hold permanent appointments and are performing actual appraisal and assessment functions for the last five (5) years, have passed the Real Property Assessing Officer (RPAO) examination conducted and administered by the Civil Service Commission (CSC) in coordination with the Department of Finance (DOF), and have undertaken relevant CPE to the satisfaction of the Board; and

(c) Assessors and appraisers who, on the date of the effectivity of this Act, hold permanent appointments and have at least ten (10) years actual experience in real property appraisal or assessment and have completed at least one hundred twenty (120) hours of accredited training on real property appraisal conducted by national or international appraisal organizations or institutions/entities recognized by the Board and relevant CPE to the satisfaction of the Board.

Those falling under categories (b) and (c) shall register with the Board after they shall have complied with the requirements for registration as real estate appraisers: Provided, That those seeking to be licensed to a new credential level shall be required to take the pertinent licensure examination.

Those so exempt under the aforementioned categories shall file their application within two (2) years from the effectivity of this Act: Provided, That the renewal of the professional identification card is subject to the provisions of Section 17 hereof.

Section 21. Reinstatement, Reissuance or Replacement of Certificate of Registration, Professional Identification Card and Special/Temporary Permit. - The Board may, after the expiration of two (2) years from the date of revocation of a certificate of registration and/or professional identification card, and upon application, compliance with the required CPE units, and for reasons deemed proper and sufficient, reinstate any revoked certificate of registration and reissue a suspended professional identification card and in so doing, may, in its discretion, exempt the applicant from taking another examination.

A new certificate of registration, professional identification card or special/temporary permit may be issued to replace lost, destroyed or mutilated ones, subject to the rules as may be promulgated by the Board.

Section 22. Roster of Real Estate Service Practitioners. - The Board, in coordination with the integrated professional organization of real estate service practitioners, shall prepare, update and maintain a roster of real estate service practitioners which shall contain the names of all registered real estate service practitioners, their residence and office addresses, license number, dates of registration or issuance of certificates, and other data which.the Board may deem pertinent. Copies thereof shall be made available to the public upon request.

Section 23. Issuance of Special/Temporary Permit. - Upon application and payment of the required fees and. subject to the approval of the Commission, the Board may issue special/temporary permit to real estate service practitioners from foreign countries whose services are urgently needed in the absence or unavailability of local real estate service^ practitioners for the purpose of promoting or enhancing the practice of the profession in the Philippines.

Section 24. Foreign Reciprocity. - No foreign real estate service practitioner shall be admitted to the licensure examination or be given a certificate of registration or a professional identification card, or be entitled to any of the privileges under this Act unless the country of which he/she is a citizen specifically allows Filipino real estate service practitioners to practice within its territorial limits on the same basis as citizens of such foreign country.

ARTICLE IV
PRACTICE OF REAL ESTATE SERVICE

Section 25. Oath. - All successful examinees qualified for registration and all qualified applicants for registration without examination as well as accredited salespersons shall be required to take an oath before any member of the Board or any officer of the Commission duly authorized by the Commission to administer oaths prior to entering into the practice of real estate service in the Philippines.

Section 26. Professional Indemnity Insurance/Cash or Surety Bond. - All real estate brokers and private real estate appraisers shall, in addition to the oath referred to in the preceding section, be required to post a professional indemnity insurance/cash or surety bond, renewable every three (3) years, in an amount to be determined by the Board, which in no case shall be less than Twenty thousand pesos (P20,000.00), without prejudice to the additional requirement of the client.

Section 27. Acts Constituting the Practice of Real Estate Service. - Any single act or transaction embraced within the provisions of Section 3(g) hereof, as performed by real estate service practitioners, shall constitute an act of engaging in the practice of real estate service.

Section 28. Exemptions from the Acts Constituting the Practice of Real Estate Service. - The provisions of this Act and its rules and regulations shall not apply to the following":

(a) Any person, natural or juridical, who shall directly perform by himself/herself the acts mentioned in Section 3 hereof with reference to his/her or its own property, except real estate developers;

(b) Any receiver, trustee or assignee in bankruptcy or insolvency proceedings;

(d) Any person who is a duly constituted attorney-in-fact for purposes of sale, mortgage, lease or exchange, or other similar contracts of real estate, without requiring any form of compensation or remuneration; and

(e) Public officers in the performance of their official duties and functions, except government assessors and appraisers.

Section 29. Prohibition Against the Unauthorized Practice of Real Estate Service. - No person shall practice or offer to practice real estate service in the Philippines or offer himself/herself as real estate service practitioner, or use the title, word, letter, figure or any sign tending to convey the impression that one is a real estate service practitioner, or advertise or indicate in any manner whatsoever that one is qualified to practice the profession, or be appointed as real property appraiser or assessor in any national government entity or local government unit, unless he/she has satisfactorily passed the licensure examination given by the Board, except as otherwise provided in this Act, a holder of a valid certificate of registration, and professional identification card or a valid special/temporary permit duly issued to him/her by the Board and the Commission, and in the case of real estate brokers and private appraisers, they have paid the required bond as hereto provided.

Section 30. Positions in Government Requiring the Services of Registered and Licensed Real Estate Service Practitioners. - Within three (3) years from the effectivity of this Act, all existing and new positions in the national and local governments, whether career, permanent, temporary or contractual, and primarily requiring the services of any real estate service practitioner, shall be filled only by registered and licensed real estate service practitioners.

All incumbent assessors holding permanent appointments shall continue to perform their functions without need for re appointment and without diminution of status, rank and salary grade, and shall enjoy security of tenure. However, they may not be promoted to a higher position until they meet the qualification requirements of that higher position as herein prescribed. Nothing in this Act shall be construed to reduce any benefit, interest, or right enjoyed by the incumbents at the time of the enactment of this Act. The appointing authority shall exercise his power to appoint the assessor in accordance with the provisions of this Act only when a vacancy occurs.

Section 31. Supervision of Real Estate Salespersons. - For real estate salespersons, no examination shall be given, but they shall be accredited by the Board: Provided, That they have completed at least two (2) years of college and have undergone training and seminars in real estate brokerage, as may be required by the Board. Real estate salespersons shall be under the direct supervision and accountability of a real estate broker. As such, they cannot by themselves be signatories to a written agreement involving a real estate transaction unless the real estate broker who has direct supervision and accountability over them is also a signatory thereto. No real estate salesperson, either directly or indirectly, can negotiate, mediate or transact any real estate transaction for and in behalf of a real estate broker without first securing an authorized accreditation as real estate salesperson for the real estate broker, as prescribed by the Board. A real estate broker shall be guilty of violating this Act for employing or utilizing the services of a real estate salesperson when he/she has not secured the required accreditation from the Board prior to such employment.

No salesperson shall be entitled to receive or demand a fee, commission or compensation of any kind from any person, other than the duly licensed real estate broker who has direct control and supervision over him, for any service rendered or work done by such salesperson in any real estate transaction.

No violation of this provision shall be a cause for revocation or suspension of the certificate of registration of the real estate broker unless there was actual knowledge of such violation or the broker retains the benefits, profits or proceeds of a transaction wrongfully negotiated by the salesperson.

Section 32. Corporate Practice of the Real Estate Service. -

(a) No partnership or corporation shall engage in the business of real estate service unless it is duly registered with the Securities and Exchange Commission (SEC), and the persons authorized to act for the partnership or corporation are all duly registered and licensed real estate brokers, appraisers or consultants, as the case may be. The partnership or corporation shall regularly submit a list of its real estate service practitioners to the Commission and to the SEC as part of its annual reportorial requirements. There shall at least be one (1) licensed real estate broker for every twenty (20) accredited salespersons.

(b) Divisions or departments of partnerships and corporations engaged in marketing or selling any real estate development project in the regular course of business must be headed by full-time registered and licensed real estate brokers.

(c) Branch offices of real estate brokers, appraisers or consultants must be manned by a duly licensed real estate broker, appraiser or consultant as the case may be.

In case of resignation or termination from employment of a real estate service practitioner, the same shall be reported by the employer to the Board within a period not to exceed fifteen (15) days from the date of effectivity of the resignation or termination.

Subject to the provisions of the Labor Code, a corporation or partnership may hire the services of registered and licensed real estate brokers, appraisers or consultants on commission basis to perform real estate services and the latter shall be deemed independent contractors and not employees of such corporations.

Section 33. Display of License in the Place of Business. - Every registered and licensed real estate service practitioner shall establish and maintain a principal place of business and such other branch offices as may be necessary, and shall conspicuously display therein the original and/or certified true copies of his/her certificate of registration as well as the certificates of registration of all the real estate service practitioners employed in such office.

Section 34. Accreditation and Integration of Real Estate Service Associations. - All real estate service associations shall be integrated into one (1) national organization, which shall be recognized by the Board, subject to the approval of the Commission, as the only accredited and integrated professional organization of real estate service practitioners.

A real estate service practitioner duly registered with the Board shall automatically become a member of the accredited and integrated professional organization of real estate service practitioners, and shall receive the benefits and privileges appurtenant thereto. Membership in the accredited and integrated professional organization of real estate service practitioners shall not be a bar to membership in other associations of real estate service practitioners.

Section 35. Code of Ethics and Responsibilities for Real Estate Service Practitioners. - The Board shall adopt and promulgate the Code of Ethics and Responsibilities for real estate service practitioners which shall be prescribed and issued by the accredited and integrated professional organization of real estate service practitioners.

Section 36. Continuing Professional Education (CPE) Program. - The Board shall develop, prescribe and promulgate guidelines on CPE upon consultation with the accredited and integrated professional organization of real estate service practitioners, affiliated association of real estate service practitioners and other concerned sectors, and in accordance with such policies as may have been prescribed by the Board, subject to the approval of the Commission. The Board shall create a CPE Council that shall be composed of a chairperson coming from the Board, a member from the accredited and integrated professional organization of real estate service practitioners and a member from the academe.

Section 37. Enforcement Assistance to the Board. - The Board shall be assisted by the Commission in carrying out the provisions of this Act and its implementing rules and regulations and other policies. The lawyers of the Commission shall act as prosecutors against illegal practitioners and other violators of this Act and its rules. The duly constituted authorities of the government shall likewise assist the Board and the Commission in enforcing the provisions of this Act and its rules.

Section 38. Indication of the Certificate of Registration, Professional Identification Card/License Number, Privilege Tax Receipt (PTR) Number and Accredited Professional Organization (APO) Number. - Real estate service practitioners shall be required to indicate the certificate of registration, professional identification card, PTR number, and APO receipt number, and the date of issuance and the duration of validity on the documents he/she signs, uses or issues in connection with the practice of his/her profession.

ARTICLE V
PENAL AND FINAL PROVISIONS

Section 39. Penal Provisions, - Any violation of this Act, including violations of implementing rules and regulations, shall be meted the penalty of a fine of not less than One hundred thousand pesos (P100,000.00) or imprisonment of not less than two (2) years, or both such fine and imprisonment upon the discretion of the court. In case the violation is committed by an unlicensed real estate service practitioner, the penalty shall be double the aforesaid fine and imprisonment.

In case the violation is committed, by a partnership, corporation, association or any other juridical person, the partner, president, director or manager who has committed or consented to or knowingly tolerated such violation shall be held directly liable and responsible for the acts as principal or as a co-principal with the other participants, if any.

Section 40. Appropriations. - The chairperson of the Professional Regulation Commission shall immediately include in the Commission's programs the implementation of this Act, the funding of which shall be included in the annual General Appropriations Act and thereafter.

Section 41. Transitory Provision. - Within ninety (90) days from the effectivity of this Act, the DTI - Bureau of Trade Regulation and Consumer Protection (BTRCP) shall transfer all pertinent records, documents and other materials to the Professional Regulatory Board of Real Estate Service.

Section 42. Implementing Rules and Regulations. - Within six (6) months after the effectivity of this Act, the Commission, together with the Board and the accredited and integrated professional organization of real estate service practitioners, the Department of Finance, and the CHED, shall prepare the necessary rules and regulations, including the Code of Ethics and Responsibilities for real estate service practitioners, needed to implement the provisions of this Act.

Section 43. Separability Clause. - If any clause, sentence, paragraph or part of this Act shall be declared unconstitutional or invalid, such judgment shall not affect, invalidate or impair any other part of this Act.

Section 44. Repealing Clause. -

(a) Sections 3(e) and (ee) of Act No. 2728, as amended by Act No. 3715 and Act No. 3969, Sections 472 and 473 of the Local Government Code of 1991 (Republic Act No. 7160), and pertinent provisions of the Civil Service Law are hereby modified accordingly.

(b) All laws, decrees, executive orders, department or memorandum orders and other administrative issuances or parts thereof which are inconsistent with the provisions of this Act are hereby modified, superseded or repealed accordingly.

Section 45. Effectivity. - This Act shall take effect fifteen (15) days following its publication in the Official Gazette or in a major daily newspaper of general circulation in the Philippines.

Approved.

(Sgd.) JUAN PONCE ENRILE
President of the Senate

(Sgd.) PROSPERO C. NOGRALES
Speaker of the House of Representatives

This Act which is a consolidation of Senate Bill No. 2963 and House Bill No. 3514 was finally passed by the Senate and the House of Representatives on May 12, 2009.

(Sgd.) EMMA LIRIO-REYES
Secretary of Senate

(Sgd.) MARILYN B. BARUA-YAP
Secretary General
House of Represenatives

Approved: June 29, 2009

(Sgd.) GLORIA MACAPAGAL-ARROYO
President of the Philippines

United States vs Memoracion, G.R. No. L-11371, August 1, 1916

2009-08-24T09:29:00.000-07:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-11371 August 1, 1916

THE UNITED STATES, plaintiff-appellee,
vs.
CECILIA MEMORACION and DALMACIO URI, defendants-appellants.

Manly, Goddard and Lockwood, Rafael de la Sierra and D.R. Williams for appellants.
Attorney-General Avanceña for appellee.

JOHNSON, J.:

These defendants were charged with the crime of adultery. On the 7th of June, 1915, a complaint was presented against them in the court of the justice of the peace of the municipality of Albay. A preliminary examination was held, at the close of which the justice of the peace found that there was probable cause for believing that the defendants were guilty of the crime charged in the complaint, and held them for trial in the Court of First Instance.

On the 26th of June, 1915, the offended party presented a complaint against the said defendants. Later, on the 23d of August, 1915, the said offended party presented an amended complaint, which alleged:

That the said accused, Cecilia Memoracion, on or about June 6, 1915, within the district of the municipality of Albay, Province of Albay, P. I., being legally and lawfully married to the complainant, the offended party Eustaquio Abrigo, did, willfully and criminally, unite, lie and have carnal intercourse with her coaccused, Dalmacio Uri; that the said accused, Dalamcio Uri, then knowing that his coaccused, Cecilia Memoracion, was legally and lawfully married to the aggrieved party, Eustaquio Abrigo, did, willfully and criminally, unite, lie and have carnal intercourse with his coaccused, Cecilia Memoracion; acts committed with violation of law.

Upon said complaint the defendants were duly arraigned and each pleaded not guilty of the crime charged in the complaint. The cause was brought on for trial and after hearing the evidence the Honorable J. C. Jenkins, judge, in a carefully prepared opinion, found that the defendants were guilty of the crime charged in the complaint and sentenced each of them to be imprisoned for a period of four years, nine months and eleven days of prision correccional with the accessory penalties of article 61 of the Penal code and each to pay one-half the costs. From that sentence each of the defendants appealed to this court. In this court the appellants make the following assignments of error:

(1) In not sustaining the objection filed by the defense during the trial of the case to the following questions,

Q. How are you related to the defendant woman?

Mr. SIERRA. Objected to as not best proof.

The COURT. I will allow the evidence.

A. She is my wife.

And, therefore, is allowing the taking of evidence with respect to the alleged marital relation between the complaint and the coaccused Cecilia Memoracion. (2) In admitting as evidence the alleged marriage certificate issued by the parish priest of Daraga; and, therefore, in overruling the objection filed by the attorney for the defense against the introduction of Exhibit G, as evidence for the prosecution. (3) In the court himself personally addressing the following questions to the witness Nicolas Briola:

Q. Did you know her (referring to the defendant) when she was married to Eustaquio? —

A. Yes, sir.

Q. Where you at the wedding? —

A. I was there.

And in refusing to strike out of the record the testimony of the witness Nicolas Briola, overruling the motion so to do, made by the defense. (4) In holding in the judgment that the alleged marriage of the complainant Eustaquio Abrigo with the coaccused Cecilia Memoracion is a proven fact. (5) In holding that there is legal presumption of the existence of the marriage between the complainant Abrigo and the coaccused Memoracion. (6) In holding as a proven fact that the accused Dalmacio Uri knew, on the night of June 6, 1915, that Cecilia Memoracion and Eustaquio Abrigo were husband and wife. (7) In holding that the accused are guilty of the crime of adultery, and in sentencing them to the penalty of fours years nine months and eleven days of prision correccional, with the accessory penalties and costs.

With reference to said assignments of error, the first, third and fourth may be discussed together for the reason that they present but one question. The question presented by the said assignments of error is whether or not oral testimony is competent proof of a marriage in the case of the crime of adultery. The first assignment of error is based upon the fact that the husband was asked the question whether or not he and the defendant Cecilia Memoracion were married and whether or not they were husband and wife. The appellants contend that his declaration was not competent evidence upon that fact. If a man and a woman are married, the declaration of either of them is competent evidence to show the fact. No witness is more competent than they are. Whether the declaration of a husband alone is sufficient to prove that fact must depend upon each particular case. There might, perchance, be a case where the judge would not believe the declaration of the husband or wife upon the question of the marriage. In such a case corroborative proof might become necessary. Corroboration of the fact is not absolutely necessary if the declaration of either the husband or wife is sufficient to satisfy the conscience of the court. Certainly there are no witnesses more competent than the husband and wife to testify as to whether they were married or not. Under the third assignment of error, the same question is presented with reference to the oral declaration of Nicolas Briola. The appellant contends that his oral declaration should not have been accepted upon the question whether the marriage existed or not. He testified that Cecilia Memoracion and Eustaquio Abrigo had been married and that he was present to the wedding. A witness who is present at the time a marriage takes place is certainly a competent witness to testify as to whether a marriage took place or not. Whether or not his declaration should be accepted depends upon his credibility, but his declaration is admissible for the purpose of showing that fact.

In reaching the foregoing conclusion we have not overlooked the decision of this court in the case of U.S. vs. Nebrida and Saorda (32 Phil. Rep., 160.) In that case the court simply said that the substantially uncorroborated testimony of the complaining witness in a case of adultery as to the fact of the marriage is not sufficient to establish the fact, beyond a reasonable doubt, in a criminal action. In the present case the declaration of the husband as to the marriage was corroborated by proof that he and his alleged wife had been living together for a period of twenty years. That fact alone gave rise to the presumption that they were husband and wife. And not only that, but the declaration of the husband was supported by the testimony of another witness who was present at the time the marriage took place. We are fully convinced that Eustaquio Abrigo and Cecilia Memoracion were legally married and that they were husband and wife.

With reference to the second assignment of error, the appellant claims that the lower court committed an error in admitting as proof Exhibit G. Exhibit G purports to be a marriage certificate issued by the parish priest, and purports to certify that Eustaquio Abrigo and Cecilia Memoracion were married. While it is true that the lower court admitted Exhibit G over the objection of the defendant, it will be noted, upon an examination of the decision of the lower court, that it was rejected and was not considered as proof. The lower court said in the course of his decision:

It is true that certificate of marriage by the parish priest (Exhibit G) was, on the trial, improperly admitted, but it is now excluded from the record and will not be considered by the court as evidence.

In view of that fact, therefore, we find no reason for sustaining the contention of the appellant. Exhibit G was not considered as proof for the purpose of determining the existence of the marriage in question.

With reference to the fifth assignment of error, the lower court in the course of his opinion said:

They (the alleged husband and wife) deported themselves as husband and wife and, therefore there is the presumption that they had entered into a lawful contract of marriage, independent of the positive testimony of an eyewitness and the husband.

Subparagraph 28 of section 334 of Act No. 190 which relates to disputable presumptions provides:

That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.

In discussing that provision of said Act No. 190, this court said in the case of United States vs. Villafuerte (4 Phil. Rep., 559):

A man and woman who are living in marital relations under the same roof are presumed to be legitimate spouses, united by virtue of a legal marriage contract, and this presumption can only be rebutted by sufficient contrary evidence.

In view of the above quoted provision of Act No. 190 and the decision of this court upon the same, it remains to be seen whether or not the alleged spouses had "deported themselves as husband and wife." The record shows that they had been living in the same house, under the same roof, and had been cohabiting together for a long period of time. That fact is not denied, nor even questioned by anything found in the record.

With reference to the sixth assignment of error, the appellants contend that the defendant Dalmacio Uri, at the time the alleged illicit relations took place, did not know that Cecilia Memoracion was a married woman. That the said Uri and Memoracion had had illicit relations at the time and place described in the complaint is not denied. The proof shows beyond a reasonable doubt, by eye-witnesses, that they had had the illicit relations charged in the complaint. The husband of Cecilia declared that they had lived together as husband and wife in the community where the crime was alleged to have been committed for a number of years; that the fact that they were husband and wife was well known in that community. It is also shown that the defendant Dalmacio Uri has visited the house of Cecilia and her husband a great number of times; that he had seen them together in the same house, and that he knew that they were living there together. The defendant Uri had been in the community where the crime was committed for a number of months. It can scarcely be believed, in view of the fact that he had visited the house of Eustaquio and Cecilia twenty or more times before the commission of the crime, that he did not at least know that they were married and were husband and wife. In view of the fact that he had frequently visited the house where Eustaquio and Cecilia were living and saw their relations, one toward the other, we are convinced, in the absence of positive proof to the contrary, that he must have known that they were at least living together as husband and wife.

With reference to the seventh assignment of error, it may be said, after a careful examination of the evidence, that we are convinced, beyond a reasonable doubt, that the defendants were guilty of the crime charged and that the sentence of the lower court is in accordance with the facts and the law. Therefore the sentence of the lower court is hereby affirmed, with costs. So ordered.

Torres, Moreland, Trent, and Araullo, JJ., concur.

Pugeda vs Trias, G.R. No. L-16925, July 24, 1962

2009-08-24T09:28:00.000-07:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16925 July 24, 1962

FABIAN PUGEDA, plaintiff-appellee,
vs.
RAFAEL TRIAS, MIGUEL TRIAS, SOLEDAD TRIAS, assisted by her husband ANGEL SANCHEZ,
CLARA TRIAS, assisted by her husband VICTORIANO SALVADOR,
GABRIEL TRIAS, minors ROMULO VINIEGRA, GLORIA VINIEGRA and FERNANDO VINIEGRA, JR., assisted by guardian-ad-litem,
RAFAEL TRIAS, TEOFILO PUGEDA, and VIRGINIA PUGEDA, assisted by her husband RAMON PORTUGAL, defendants-appellants.

Placido C. Ramos and Fortunato Jose for plaintiff-appellee.
Ramon C. Aquino for defendants-appellants Teofilo Pugeda and Virginia Pugeda.
Jose T. Cajulis, Miguel F. Trias and Carlos T. Viniegra for all other defendants-appellants.

R E S O L U T I O N

LABRADOR, J.:

This resolution concerns a motion for the reconsideration of the decision rendered by this Court. The main argument in support of the motion is that the lots not fully paid for at the time of the death of Miguel Trias, which lots were, by provision of the Friar Lands Act (Act No. 1120), subsequently transferred to the widow's name and later paid for by her out of the proceeds of the fruits of the lands purchased, and for which titles were issued in the name of the widow, belong to the latter as her exclusive paraphernal properties, and are not conjugal properties of her deceased husband and herself. In our decision we laid down the rule that upon the issuance of a certificate of sale to the husband of a lot in a friar lands estate, purchased by the Government from the friars, the land becomes the property of the husband and the wife, and the fact that the certificate of sale is thereafter transferred to the wife does not change the status of the property so purchased as conjugal property of the deceased husband and wife. The reason for this ruling is the provision of the Civil Code to the effect that properties acquired by husband and wife are conjugal properties. (Art. 1401, Civil Code of Spain). The provision of the Friar Lands Act to the effect that upon the death of the husband the certificate of sale is transferred to the name of the wife is merely an administrative device designed to facilitate the documentation of the transaction and the collection of installments; it does not produce the effect of destroying the character as conjugal property of the lands purchased. Hence, the issuance of the title, after completion of the installments, in the name of the widow does not make the friar lands purchased her own paraphernal property. The said lands, notwithstanding a certificate of sale, continue to be the conjugal property of her deceased husband and herself.

The case of Arayata vs. Joya, et al., 51 Phil. 654, cited by the movants, is not applicable to the case at bar because it refers to the superior rights of the widow recognized in Section 16 of Act No. 1120 over transfers made by the husband which have not been approved by the Director of Lands. As a matter of fact the syllabus in said case is as follows:

Widow's rights. — The widow of a holder of a certificate of sale of friar lands acquired by the Government has an exclusive right to said lands and their fruits from her husband's death, provided that the deceased has not conveyed them to another during his lifetime and she fulfills the requirements prescribed by the law for the purchase of the same.

A minor ground for the reconsideration is that the decision of Judge Lucero, having been set aside by the Court of Appeals, could not be affirmed by Us. The setting aside of the said decision was due to the fact that newly discovered evidence was found regarding the partition of the estate of the deceased. The setting aside of the decision was not aimed or directed at the judge's ruling that the properties acquired by the husband during his lifetime from the friar lands estate were conjugal properties of the husband and the wife..

The third ground raised is that the lots were never partitioned as conjugal assets of Mariano Trias and Maria C. Ferrer. One of the arguments adduced in favor of the claim of the movants that the properties in question, which were acquired during the lifetime of Mariano Trias, were never partitioned is that, according to the records of the Register of Deeds and according to the friar lands agents, the alleged partition of the said properties as conjugal properties of the deceased Mariano Trias and Maria C. Ferrer had not been registered in said offices. The failure to make the registration is perhaps due to the neglect the heirs. The fact, however, remains that the exhibits presented in Court, especially Exhibit "3-Trias" and Annex "E", which are the project of partition and the approval thereof, cannot be ignored by this Court. The neglect of the parties in not actually partitioning the properties do not argue in favor of the fact that partition was not a actually decreed. Adjudications may be made pro indiviso without actual division or partition of the properties among the heirs.

WHEREFORE, the motion for reconsideration is hereby denied and the judgment rendered declared final. So ordered.

Bengzon, C.J., Padilla, Concepcion, Barrera, Paredes, and Dizon, JJ., concur.
Bautista Angelo, Reyes, J.B.L., Regala and Makalintal, JJ., took no part.

Sarmiento vs. Court of Appeals, G.R. No. 96740 , March 25, 1999

2009-08-24T09:26:00.000-07:00

Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 96740 March 25, 1999

VIRGINIA P. SARMIENTO and APOLONIA P. CATIBAYAN, petitioners,
vs.
COURT OF APPEALS and SIMON ARGUELLES, respondents.

PURISIMA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, seeking to set aside the Decision, ¹ dated October 26, 1989 and the Resolution, ² dated January 4, 1991, of the Court of Appeals ³ in CA — G.R. CV No. 11750, reversing the Decision ⁴, dated May 30, 1986, of Branch XV, Regional Trial Court, in Trece Martires City ⁵ in Civil Case No. NC-75.

The antecedent facts that matter are as follows:

Virginia P. Sarmiento and Apolonia P. Catibayan, the petitioners herein, filed a complain for partition of a piece of land, more particularly described as Lot No. 926 of the Naic Estate, G.L.R.O., Record No. 8340, in Naic, Cavite, with an area of 1,779 square meters, covered by TCT No. 21877 issued on September 1, 1941 to co-owners, Francisco Arguelles and Petrona Reyes.

Petitioners are sisters, their parents being Tiburcio Pangilinan and Leogarda Arguelles, who died in 1946. Leogarda was the daughter of Francisco Arguelles who died on February 18, 1949 and Emilia Pineli, who died on May 2, 1950. Private respondent Simon Arguelles is a half brother of Leogarda, with Francisco Arguelles as their common father.

Petitioners claim that as granddaughters of Francisco Arguelles, they and private respondent Simon Arguelles are co-owners of the 1/2 portion of Lot No. 926, as the only heirs of the late Francisco Arguelles. But according to private respondent, petitioners are not the legal heirs of Francisco Arguelles because their (petitioners') mother, Leogarda Arguelles, was allegedly an illegitimate child of his father, Francisco Arguelles, and Emilia Pineli who were not married. Under the old Civil Code, which should be applied since Francisco Arguelles died in 1949, before the effectivity of the New Civil Code, an illegitimate child did not have successional rights.

After trial, the lower court came out with a decision ordering the parties herein to partition among themselves subject 1/2 portion of Lot No. 926; and disposing thus:

In view of all the foregoing, plaintiffs Virginia P. Sarmiento and Apolonia P. Catibayan and defendant Simon Arguelles are hereby ordered to partition among themselves the one-half portion of Lot No. 926 of the Naic Estate, located in Naic, Cavite, covered by Transfer Certificate of title No. 21877, pertaining to the deceased Francisco Arguelles.

The counterclaim, for lack of merit, is hereby dismissed.

No pronouncement is made as to cost.

SO ORDERED.⁶

Dissatisfied therewith, the private respondent went to the Court of Appeals on a Petition for Review; theorizing that:

I. The Lower Court erred in holding that Francisco Arguelles and Emilia Pineli were legally married and that Leogardo (sic) Arguelles was their legitimate daughter.

II. The Lower Court erred in not holding that the cause of action of the plaintiffs-appellees if any, had already prescribed.

III. The Lower Court erred in ordering the partition of the property involved in this case among the plaintiffs-appellees and the defendant-appellant. ⁷

On October 26, 1989, the Court of Appeals handed down its judgment, reversing the decision of the Regional Trial Court of origin and disposing as follows:

WHEREFORE, judgment is hereby entered REVERSING the decision appealed from and DISMISSING the complaint for judicial partition. Without pronouncement as to costs.

SO ORDERED.⁸

With the denial with their Motion For Reconsideration on January 4, 1991, petitioners found their way to this court via the present Petition; posing as issues:

I. WHETHER OR NOT A MAN AND A WOMAN WHO LIVED TOGETHER AS HUSBAND AND WIFE ARE PRESUMED MARRIED; and.

II. WHETHER THE BORN OUT OF SUCH MARRIAGE IS LEGITIMATE OR NOT.⁹

The pivotal issue for determination is: whether or not the petitioners offered sufficient evidence to substantiate their submission that Francisco Arguelles and Emilia Pineli were legally married.

Sec. 3 (aa) of Rule 131 of the Revised Rules of Court provides:

Sec. 3. Disputable presumptions, —The following presumptions are satisfactory if uncontradicted, but maybe contradicted or overcome by other evidence

xxx xxx xxx

(aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

xxx xxx xxx

Guided by the aforecited provision of law, the trial court ratiocinated:

The fact that no marriage certificate of Francisco Arguelles and Emilia Pineli was submitted in evidence does not lead to the conclusion that the said parties were not legally married and that Leogarda was their illegitimate child. The defendant admitted that his father and Emilia Pineli lived and cohabited together as husband and wife, even staying in the same house were he was also residing. The presumption is that 'A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage (sic) (Sec. 5(bb), Rule 131, Rules of Court). ¹⁰ Every intendment of law or facts leans toward the validity of marriage and the legitimacy of children (Art. 220, Civil Code). In this case, no evidence was adduced by defendant Arguelles to rebut this presumption. Neither did he attempt to show that Francisco and Emilia could not validity marry each other because of some legal impediments to their marriage.¹¹

While it is true that Francisco Arguelles and Emilia Pineli cohabited as husband and wife, private respondent Simon Arguelles testified that the said cohabitation was without the benefit of marriage. In People vs. Borromeo ¹², this Court held that persons living together in apparent matrimony are presumed, absent any counter presumption or evidence special to the case, to be in fact married. ¹³

In the case under consideration, the presumption of marriage, on which the trial court premised its decision, has been sufficiently offset. ¹⁴ Records reveal that petitioners tried to justify the non-presentation of the marriage certificate of Francisco and Emilia by submitting a certification issued by Assistant Treasurer Lucila Lucero of Naic, Cavite, to the effect that:

the Marriage Certificate of Francisco Arguelles married to Emilia Pineli on the 18th day of August, 1918 at Naic, Cavite, is no longer available due to destruction of the records during the Japanese occupation, and as such no certified copy of Marriage could be issued to the parties concerned.¹⁵

However, Assistant Treasurer Lucila Lucero admitted later ¹⁶ on the witness stand that she signed the said certificate prepared by a certain Consuelo Pangilinan, without verifying its correctness. In reality, the records of marriages of Naic are intact. The said records were brought and examined before the trial court, and its pages 20 to 22 containing entries from July 3, 1917 to May 30, 1918 do not reflect the names of Francisco Arguelles and Emilia Pineli.

So also, the death certificate of Francisco Arguelles contained the word "none" opposite the phrase "surviving spouse", indicating that he died a widower on February 18, 1949. His deceased wife was Petrona Reyes, the mother of private respondent. ¹⁷

Then too, TCT No. 21877 covering Lot 926 as well as the reconstituted TCT No. 21877, RT-19055, show the status of Francisco Arguelles as "widower". ¹⁸ On this point, the respondent court said:

. . . Emilia would not have allowed Francisco Arguelles to place the property in his name alone as widower if in fact they were legally married to each other. If there was a mistake in indicating in the title Francisco's status as a widower, the same could have been easily cured by presenting a petition for correction in the proper court. If it is true, as Tiburcio Pangilinan testified, that the certificate of title was the possession of Emilia Pineli and was given to him (Tiburcio) before her death, there is no conceivable reason why Emilia never exerted any effort to correct the mistake in the description of Francisco's status in the certificate of title as 'widower' knowing that she would not be able to transmit any part of the property to her heirs upon her death if the error was not corrected. Her omission only serves to bolster the proposition that she had no right to protect, in the first place, because she was not legally married to
Francisco.¹⁹

Consequently, with the presumption of marriage sufficiently overcome, the onus probandi of the private respondent shifted to the petitioners. It then became the burden of the petitioners, Virginia P. Sarmiento and Apolonia P. Catibayan, to prove that their deceased grandparents, Francisco Arguelles and Emilia Pineli, were legally married.

In Trinidad vs. Court of Appeals, et a1. ²⁰, this Court ruled that as proof of marriage may be presented: a) testimony of a witness to the matrimony; b) the couple's public and open cohabitation as husband and wife after the alleged wedlock; c) the birth and baptismal certificate of children born during such union; and d) the mention of such nuptial in subsequent documents.

Pertinent records show that the petitioners failed to substantiate their theory that Francisco Arguelles and Emilia Pineli were married. What is more, the available records of marriage contradict the allegation that Francisco Arguelles and Emilia Pineli were legally married. But petitioners, to whom the burden of proving the fact of marriage shifted, did not present anybody who witnessed the marriage ceremony of Francisco Arguelles and Emilia Pineli. As aptly reasoned out by the respondent court:

. . . Not one of the three witnesses for plaintiffs ever declared having observed that Francisco and Emilia acted as husband and wife. Tiburcio Pangilinan testified mainly on the fact that he is the father of the plaintiffs and husband of the late Leogarda Arguelles who was the daughter of Francisco Arguelles and Emilia Pineli. The rest of his testimony touched on the certificate of tittle covering Lot 926 which Emilia allegedly delivered two weeks before she died but was later on taken from him by defendant. Plaintiffs on their part did not testify that Francisco Arguelles and Emilia Pineli lived together as husband and wife, which may be explained by the fact that Virginia Sarmiento and Apolonia Catibayan where only 6 and 5 years old, respectively, when Emilia Pineli died and were then too young to perceive the nature of whatever the relationship existed Francisco and Emilia.²¹

Evidently, petitioners relied mainly on the legal presumption that Francisco Arguelles and Emilia Pineli were married, without introducing any evidence to prove the marriage theorized upon.

In a belated attempt to establish the legitimacy of Leogarda Arguelles, petitioners have theorized for the first time, in the present Petition, that the birth certificate ²² of Leogarda Arguelles which they allegedly presented during the trial below, shows the legitimate status of Leogarda Arguelles. ²³ Concededly, such birth certificate may be used to show the alleged marriage. But be that as it may, the totality of evidence for the private respondent preponderates over petitioners'. Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party. ²⁴ Compared with the evidence introduced by the private respondent, petitioners rely heavily on the legal presumption of marriage which, as earlier pointed out, has been effectively rebutted. We are concluded by the factual findings of the Court of Appeals.

Premises studiedly considered, we are of the ineluctable conclusion, and so hold, that the Court of Appeals erred not in reversing the decision of the Regional Trial Court a quo.

WHEREFORE, the Petition is DENIED and the assailed Decision, dated October 26, 1989, and Resolution, dated January 4, 1991, of the Court of Appeals AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Romero, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur.

Footnotes

1 Annex "A" of Petition, Rollo, pp. 21-27.

2 Annex "B" of Petition, Rollo, p. 28.

3 Third Division, composed of Associate Justices: Santiago M. Kapunan (Chairman and ponente), Minerva Gonzaga-Reyes (member), and Asaali S. Isnani (acting member).

4 Annex "C" of Petition, Rollo, pp. 20-35.

5 Presided by Judge Alfredo J. Gustilo.

6 Decision, Annex "C" of Petition, Rollo, p. 35.

7 Decision, Annex "A" of Petition, Rollo, p. 24.

8 Decision, Annex "A" of petition, Rollo, p. 27.

9 Petition, Rollo, p. 8.

10 Now Section 3(aa), Rule 131 of the Revised Rules of Court.

11 Decision, Annex "C," Rollo, p. 31.

12 133 SCRA 106, p. 109.

13 Id., p. 109.

14 Fernandez, vs. Puatu, et al., 102 Phil. 363, p. 372.

15 See p. 7 of the Decision of the Court of Appeals, (Annex "A").

16 Ibid.

17 Ibid.

18 Ibid.

19 See pp. 7-8 of the Court of Appeals' Decision.

20 G.R. No. 118904, April 20, 1998, citing Pugueda vs. Trias, 4 SCRA 849, 855 [March 31, 1962].

21 Decision, Annex "A", Rollo, pp. 24-25.

22 Not appended to the Petition.

23 Petition, Rollo, p. 17.

24 Trinidad vs. Court of Appeals, et al., G.R. No. 118904, [April 20, 1989], citing: Summa Insurance Corp. vs. Court of. Appeals, 253 SCRA 175, 185 [February 5, 1996]; New Testament Church of God vs. Court of Appeals, 246 SCRA 266,269, [July 14, 1995]; Sapu-an vs. Court of Appeals, 214 SCRA 701, 706 [October 19, 1992]; Republic vs. Court of Appeals, ibid.

Fernandez vs. Puatu, G.R. No. L-10071, October 31, 1957

2009-08-24T09:25:00.000-07:00

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10071 October 31, 1957

Testate Estate of Guillermo Puatu y Constantino, deceased. ROSARIO CAMPOS FERNANDEZ, petitioner-appellee,
vs.
DR. SANTIAGO T. PUATU, VICTORIA T. PUATU, MARIANO T. PUATU, ROSALIA T. PUATU CRUZ, DRA. LUZ T. PUATU ORTENCIO, ALEJANDRO T. PUATU, GUILLERMO T. PUATU, JR., ATTY. NICOLAS T. PUATU, EMERITA T. PUATU, HERMOGENES T. PUATU, AURORA T. PUATU, ISABEL G. PUATU, SOLEDAD G. PUATU, GUILLERMA G. PUATU, EUGENIA G. PUATU, ROSALINDA G. PUATU, and FELIZARDA G. PUATU, as acknowledged natural children of the deceased, Guillermo Puatu y Constantino and his forced heirs, oppositors-appellants.

Nicanor S. Sison for appellee.
Antonio Enrile Inton and Nicolas T. Puatu for appellants.

CONCEPCION, J.:

This is an appeal from an order of the Court of First Instance of Manila declaring that appellee Rosario Campos Fernandez, is the widow of Guillermo Puatu y Constantino.

Alfonso Puatu, represented by Atty. Arsenio B. Cruz, instituted this case on June 15, 1953. In the petition filed therefor, it was alleged that Guillermo Puatu y Constantino had died in Manila, on June 1, 1953; that the deceased was single, of age, Filipino and resident of Manila; that his only heirs are his nephews, namely, Alfonso (the petitioner), Emiliana and Mateo, all surnamed Puatu, and Pedro, Natividad, Gregorio and Flordeliza, all surnamed Atienza y Puatu; that the deceased had some properties, but no debts; and that he died intestate. Petitioner prayed that Mateo Puatu be appointed administrator of the estate of the deceased.

An urgent motion to dismiss, dated September 19, 1953, with alternative motion to revoke the letters of administration issued to said Mateo Puatu, was filed by Santiago, Victoria, Mariano, Rosario, Luz, Alejandro, Guillermo, Jr., Emeteria, Hermogenes, Aurora, Soledad, Isabel, Eugenia, Rosalinda and Felizarda, all surnamed Puatu. The motion alleged that said petitioners are the acknowledged natural children of the deceased, with whom they had lived continuously, from their birth up to the time of his death; that they are his sole heirs; that Alfonso Puatu did not mention their names in his petition, dated June 15, 1953, in order to give the impression that he had a right to institute the proceedings and to avoid service of notice upon the movants; and that there is no need proceedings for the settlement of the estate of the deceased, inasmuch as they had paid the only obligation left by the latter upon his death, and they are all in agreement as to the partition of his estate, which they had been administering ever since his last illness. Accordingly, the movants prayed that the proceedings be dismissed and the letters of administration issued to Mateo Puatu revoked, or else, that said letters of administration be revoked, and Alejandro Puatu be appointed, in lieu of Mateo Puatu, as administrator of the estate of the deceased.

On month later, or on October 19, 1953, said movants — hereinafter referred to as children of the decedent — filed a notice of discovery and petition for probate of a will, stating that, after the filing of their motion of September 19, 1953, they had found a copy of the last will and testament executed by the decedent on November 12, 1944, bearing a stamp of the Court of First Instance of Manila, showing, that the original of said document had been filed with said court, on November 16, 1944, for safekeeping, and praying that said will be admitted to probate and letters of administration issued to Alejandro T. Puatu, one of the acknowledged natural children of the deceased. The latter's aforementioned nephews, Mateo, Emiliana and Alfonso, all surnamed Puatu — then represented by Atty. Nicanor S. Sison, who had, meanwhile, substituted Atty. Cruz — objected thereto, upon the ground that the instrument presented for probate is not authentic; that it is not the original will; that it is written in a language (English) not known to the deceased; and that it had not been executed conformably to law. Soon, thereafter, Atty. Sison filed a similar opposition to the probate of said instrument, on behalf of Rosario Campos Fernandez, who claimed to have been married to the deceased in Spain on May 15, 1896.

After due hearing, the court, by an order dated August 20, 1954, allowed the aforementioned instrument to probate as the last will and testament of Guillermo Puatu y Constantino, appointed his son, Alejandro T. Puatu, as administrator of the estate of the decedent, revoked the letters of administration issued to Mateo Puatu, and ordered him to turn over said estate to Alejandro T. Puatu. Said nephews of the deceased announced their intention to appeal from this order, but, thereafter, they withdrew their notice of appeal, and stated that the accepted said order of August 20, 1954, and had no interest in the properties of the deceased. Thus, said order became final and executory.

As Rosario Campos Fernandez later urged the court to settle her civil status, evidence was taken thereon and subsequently an order was issued on October 5, 1955, holding that she is the lawful surviving spouse of the deceased. A reconsideration of this order, as well as a new trial, were, thereafter, denied, whereupon the children of the deceased perfected their appeal. Our jurisdiction over the same is due to the fact that the estate of the decedent is worth more than P50,000.00.

The record shows that, during his lifetime, Guillermo Puatu y Constantino lived maritally, first in Plaridel, and then in Baliuag, Bulacan, with Nemesia Talastas-now deceased-who begot him the following children, whose ages, in October, 1953; are given after their respective names:

1. Dr. Santiago T. Puatu	41 years
2. Victoria T. Puatu	38 "
3. Mariano T. Puatu	36 "
4. Rosario T. Puatu-Cruz	34 "
5. Dra. Luz T. Puatu-Ortencio	32 "
6. Alejandro T. Puatu	28 "
7. Guillermo T. Puatu	26 "
8. Atty. Nicolas T. Puatu	24 "
9. Emeteria T. Puatu	22 "
10. Hermogenes T. Puatu	19 "
11. Aurora T. Puatu	17 "

Several years after the commencement of said relations with Nemesia Talastas, Guillermo maintained a house in Manila, where he stayed-whenever in the city- with Soledad Gador, who begot him the following children, whose ages, in October, 1953, are stated after their respective names:

1. Soledad G. Puatu	14 years
2. Isabel G. Puatu	13 "
3. Guillerma G. Puatu	9 "
4. Eugenia G. Puatu	6 "
5. Rosalinda G. Puatu	4 "
6. Felizarda G. Puatu	3 "

These seventeen (17) children bore his surname and were always supported by him. Since their respective births, they lived with him and enjoyed the status of acknowledged natural children. In fact, he acknowledged them as such in public instruments and they have been judicially declared by final judgment as having said status. The only question for determination in this appeal is whether appellee Rosario Campos Fernandez has ever been married to the deceased, Guillermo Puatu y Constantino.

In support of the affirmative answer, said appellee introduced evidence to the effect that Guillermo Puatu y Constantino was in Spain, in 1896; that appellee, a Spanish subject, was then doing "las labores de casa" in his residence in Madrid, Spain, that Guillermo and she contracted marriage, on May 15, 1896, before a catholic priest, by the name of Alfonso Garcia, in the parish church of "Nuestra Senora del Pilar," in said city; that the sponsors to the wedding were Antonio Pueo, his wife; Manuela Ferrer, and Dr. and Mrs. Dominador Gomez; that there were other persons present at the wedding, including Juan Pedru, Juan Llusia and Maria Bernat; that, immediately thereafter, the couple lived publicly as husband and wife in Spain, up to the year 1902, when they came to the Philippines and continued their marital life in Manila, and, later on, in Baliuag, Bulacan; that, in 1917, after discovering that he was unfaithful to her, she returned to Spain, where she remained continuously, thereafter; that she never returned to the Philippines; and that they never had any offspring.

The main evidence for the appellee consisted of her own deposition, taken in Spain. By way of corroboration, as regards the wedding and the marital life of Puatu and appellee in Spain, she introduced, also the testimony of Juan Pedru and Juan Llusia, similarly taken in that State. With respect to their marital relations in the Philippines, the corroborative evidence consists of the testimony of Simeon Constantino and that of the nephews of the decedent, Emiliana Puatu and Mateo Puatu.

The lower court held that appellee in the surviving spouse of the deceased, because they had publicly lived together as husband and wife in Spain and then in the Philippines for about twenty-one (21) years; because they are presumed, therefore, to "have entered into a lawful contract of marriage", pursuant to Rule 123, section 69 (bb), of the Rules of Court; and because this presumption is bolstered up by the aforementioned testimony of the appellee, corroborated by that of Juan Pedru and Juan Llusia.

Generally, the findings of fact made in an appealed decision are entitled to great weight, for the lower court has seen and heard the witnesses during the trial, whereas the appellate court has no opportunity to observe their behaviour on the witness stand. However, in the case at bar, His Honor the trial judge had no such opportunity, as regards the witnesses mentioned in the preceding paragraph, their depositions having been taken in Spain. Besides, two (2) of the three (3) witnesses who testified in the Philippines — Emiliana Puatu and Mateo Puatu — belong to the group of nephews whose interest is adverse to that of appellants herein. In fact, Mateo Puatu, was the former administrator removed upon appellant's petition and the probate — likewise, at their instance — of the will of the decedent.

Again, the following circumstances affect adversely the credibility and weight of appellee's evidence namely:

1. Although appellee claims to have had some correspondence with the deceased, she could not produce a single communication of the latter. Her only explanation, to the effect that "no tiene costumbre de guardar correspondencia," and that "no puede exhibir correspondencia por no tenerla," is far from satisfactory.

2. According to her own testimony, ever since she returned to Spain, in 1917, the deceased did not support her. What is more, she never asked or demanded any support from him. Although she would have us believed that, once in a while, she received money from him, through an acquaintance coming from the Philippines, there is no documentary evidence whatsoever in support of this or any other part of her testimony. Thus, there is absolutely no evidence deserving full faith and credence, bearing out said testimony. On the contrary, there are records of unimpeachable character pointing in the opposite direction. Thus, for instance—

3. Appellee explained her failure to produce the marriage contract with the deceased by saying that the document was lost during the Spanish civil war, and that, likewise, the records of the church of "Nuestra Senora del Pilar" in Madrid were then destroyed. However, no entry relative to said marriage appears either in the civil registry of Madrid¹ or in the records of the diocese to which said church belongs.² What is more — according to a certification attached to appellants' motion for reconsideration and new trial — no priest by the name of Alfonso Garcia — who, allegedly, solemnized the marriage — appears in the records of the Bisphoric of Madrid.³ Upon the other hand, there are records to the effect that the appellee was considered single in the Philippines, and that the decedent claimed to be a bachelor and was regarded as such. For instance—

a. In the records of the Spanish Consulate in Manila, the following entry appears:

En Matricula No. 121, folio 161, ano 1916, Dona ROSARIO CAMPOS FERNANDEZ natural de la Zubia, provincia de Granada, (Espana), soltera, nacida en el ano 1871, llego a Filipinas en el ano 1902, y en su fecha de inscripcion en este Consulado, fue el 27 de Abril de 1916. (Exhibit 13-A; emphasis ours.).

It is true that appellee does not appear to have given the foregoing data. The same, however, were furnished personally by Ramon Abril Llullas, who signed on her behalf. Hence, she presumably authorized him to do so. At any rate, said records of the Spanish Consulate in the Philippines are public official records, which are over forty (40) years old. As such, they are prima facie evidence of the facts therein stated. (Rule 123, sections 35, 38 and 39, Rules of Court.).

b. The petition of Alfonso Puatu, with which these proceedings was commended, states that the decedent was, at the time of his death, "single", and Alfonso Puatu so testified at the hearing of said petition-before the appellant's intervention in this case.

c. Original certificates of title Nos. 12968, 15309 and 14758 of the office of the register of deeds of Bulacan (Exhibits 10, 11 and 14), were issued in favor of "Guillermo Puatu, single, of Baliuag, province of Bulacan, P. I.", on August 18, September 17 and September 8, 1930, respectively.

d. The same status is given in a deed of lease, executed by Guillermo Puatu in favor of Felipe Bernardino, in November 13, 1946 (Exhibit 5).

e. To the same effect is the death certificate of the decedent (Exhibit B).

f. In the public instruments, Exhibits X and Y (marked, also, as Exhibits 8 and 9) dated, respectively, November 12, 1944 and May 20, 1948, whereby the decedent acknowledged appellants herein as his natural children, he stated that his status was "single."

g. This status was confirmed by the decision in Civil Case No. 25519 of the Court of First Instance of Manila, dated February 6, 1954, approving said acknowledgment of appellants herein as the natural children of Guillermo Puatu, which decision is already final and executory.⁴

h. In his last will and testament (Exhibit 7) — which has already been allowed to probate — the deceased described appellants herein as his acknowledged natural children and named them as his heirs.

In the light of these facts, and of the circumstance that, admittedly, the appellee and the decedent had, since 1917, lived separately from each other — not only in different houses, but thousands of miles away from each other — for thirty five (35) years, the least we can say is that the presumption of marriage, relied upon in the decision appealed from, has been sufficiently offset. Indeed, some members of the Court are inclined to believe of the evidence militates in favor of appellants herein. Considering, however, that the certification by the Bishopric of Madrid-Alcala, relative to the non- existence of a Father Alfonso Garcia, and the decision approving the acknowledgment of appellants herein as natural children of the deceased, are not, as yet, part of the evidence in connection with the incident under consideration-said documents being those rallied upon in support of the motion for new trial, which was denied by the lower court-and in order to avoid any possible injustice to the parties herein, resulting, either from the handicaps under which may find themselves, owing to the problems of distance and time they have to overcome, and to the other factors having analogous effects, this Court believes that it would be best to remand the records to the lower court for a new trial and the reception, not only of the evidence aforementioned, but, also, of such other evidence as may be pertinent, relevant and material to the issue under consideration.

Wherefore, the order appealed from is hereby set aside, and the records remanded to the lower court for new trial, with costs against the appellee. It is so ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A. Bautista Angelo, Labrador, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Footnotes

¹ The municipal judge and officer in charge of the civil registry for the district of Buenavista, Madrid, certified, on July 8, 1955:

"Que examinados los libros indices de la Seccion II de este Registro civil de mi cargo correspondientes al dia quince de Mayo de mil ochocientos noventa y seis, no se halla en ellos ninguna inscripcion de matrimonio referente a Don Guillermo Puatu Constantino con Dona Rosario Campos Fernandez, aunque en la mencionada fecha la parroquia del Pilar pertenecia a la demarcacion de este distriti ya que hay inscritos en les libros de Matrimonias de este Registro civil por esa fecha enlaces matrimoniales celebrados en la mencionada parroquia." (Exhibit 16-B; emphasis ours.)

² Similarly, the officer in charge of the records of the diocese of Madrid-Alcala, certified, on August 1, 1955:

"Que examinados los indices de los libros de matrimonio de este archivo no se halla inscrito en ellos el expediente matrimonial referente a D. Guillermo Puatu Constantino con Dona Rosario Campos Fernandez en el ano mil ochocientos noventa y seis. Asimismo no se halla el mencionado expediente en los legajos de los expedientes matrimoniales instruidos en la Parroquia de Ntra. Sra. Del Pilar de esta capital, dado que de este Obispado de Madrid-Alcala dependen todas las Parroquias de esta Capital y por consiguiente sus respectivos archivos se encuentran dentro de su jurisdiccion eclesiastica." (Exhibit 17- B; emphasis ours.).

³ The Chancellor-Secretary of the Bishopric of Madrid, certified, on October 17, 1955:

"Que, registrados los libros de licencias sacerdotales que se conservan en este obispo desde el ano de 1896, no aprece of nombre de ningun sacerdote llamado D. Alfonso Garcia. . . " (Annex D, Record on Appeal, p. 346; emphasis ours).

⁴ Said decision was not introduced in evidence at the hearing of the incident under consideration. Copy thereof had been attached to appellant's motion for new trial, which was denied. It appears, however, that the copy of said decision had already been presented in evidence in this proceedings, in connection with another incident therein, presumably the probate of the will. at any rate, it is not disputed that appellants are children of the deceased, that the latter had acknowledged them as his natural children and that this act has merited judicial approval.

Republic vs Court of Appeals and Castro, G.R. No. 103047, September 2, 1994

2009-08-24T09:24:00.000-07:00

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103047 September 2, 1994

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.

Parungao, Abesamis, Eleazar & Pulgar Law Offices for private respondent.

PUNO, J.:

The case at bench originated from a petition filed by private respondent Angelina M. Castro in the Regional Trial Court of Quezon City seeking a judicial declaration of nullity of her marriage to Edwin F. Cardenas.¹ As ground therefor, Castro claims that no marriage license was ever issued to them prior to the solemnization of their marriage.

Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently, he was declared in default. Trial proceeded in his absence.

The controlling facts are undisputed:

On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil ceremony performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The marriage was celebrated without the knowledge of Castro's parents. Defendant Cardenas personally attended to the processing of the documents required for the celebration of the marriage, including the procurement of the marriage, license. In fact, the marriage contract itself states that marriage license no. 3196182 was issued in the name of the contracting parties on June 24, 1970 in Pasig, Metro Manila.

The couple did not immediately live together as husband and wife since the marriage was unknown to Castro's parents. Thus, it was only in March 1971, when Castro discovered she was pregnant, that the couple decided to live together. However, their cohabitation lasted only for four (4) months. Thereafter, the couple parted ways. On October 19, 1971, Castro gave birth. The baby was adopted by Castro's brother, with the consent of Cardenas.

The baby is now in the United States. Desiring to follow her daughter, Castro wanted to put in order her marital status before leaving for the States. She thus consulted a lawyer, Atty. Frumencio E. Pulgar, regarding the possible annulment of her marriage. Through her lawyer's efforts, they discovered that there was no marriage license issued to Cardenas prior to the celebration of their marriage.

As proof, Angelina Castro offered in evidence a certification from the Civil Register of Pasig, Metro Manila. It reads:

February 20, 1987

TO WHOM IT MAY CONCERN:

This is to certify that the names EDWIN F. CARDENAS and ANGELINA M. CASTRO who were allegedly married in the Pasay City Court on June 21, 1970 under an alleged (s)upportive marriage license
no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot be located as said license no. 3196182 does not appear from our records.

Issued upon request of Mr. Ed Atanacio.

(Sgd) CENONA D. QUINTOS
Senior Civil Registry Officer

Castro testified that she did not go to the civil registrar of Pasig on or before June 24, 1970 in order to apply for a license. Neither did she sign any application therefor. She affixed her signature only on the marriage contract on June 24, 1970 in Pasay City.

The trial court denied the petition. ² It held that the above certification was inadequate to establish the alleged non-issuance of a marriage license prior to the celebration of the marriage between the parties. It ruled that the "inability of the certifying official to locate the marriage license is not conclusive to show that there was no marriage license issued."

Unsatisfied with the decision, Castro appealed to respondent appellate court. She insisted that the certification from the local civil registrar sufficiently established the absence of a marriage license.

As stated earlier, respondent appellate court reversed the Decision of the trial court. ³ It declared the marriage between the contracting parties null and void and directed the Civil Registrar of Pasig to cancel the subject marriage contract.

Hence this petition for review on certiorari.

Petitioner Republic of the Philippines urges that respondent appellate court erred when it ruled that the certification issued by the civil registrar that marriage license no. 3196182 was not in their record adequately proved that no such license was ever issued. Petitioner also faults the respondent court for relying on the self-serving and uncorroborated testimony of private respondent Castro that she had no part in the procurement of the subject marriage license. Petitioner thus insists that the certification and the uncorroborated testimony of private respondent are insufficient to overthrow the legal presumption regarding the validity of a marriage.

Petitioner also points that in declaring the marriage between the parties as null and void, respondent appellate court disregarded the presumption that the solemnizing officer, Judge Pablo M. Malvar, regularly performed his duties when he attested in the marriage contract that marriage license no. 3196182 was duly presented to him before the solemnization of the subject marriage.

The issues, being interrelated, shall be discussed jointly.

The core issue presented by the case at bench is whether or not the documentary and testimonial evidence presented by private respondent are sufficient to establish that no marriage license was issued by the Civil Registrar of Pasig prior to the celebration of the marriage of private respondent to Edwin F. Cardenas.

We affirm the impugned Decision.

At the time the subject marriage was solemnized on June 24, 1970, the law governing marital relations was the New Civil Code. The law ⁴ provides that no marriage shall be solemnized without a marriage license first issued by a local civil registrar. Being one of the essential requisites of a valid marriage, absence of a license would render the marriage void ab initio. ⁵

Petitioner posits that the certification of the local civil registrar of due search and inability to find a record or entry to the effect that marriage license no. 3196182 was issued to the parties is not adequate to prove its non-issuance.

We hold otherwise. The presentation of such certification in court is sanctioned by Section 29, Rule 132 of the Rules of Court, viz.:

Sec. 29. Proof of lack of record. — A written statement signed by an officer having custody of an official record or by his deputy, that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.

The above Rule authorized the custodian of documents to certify that despite diligent search, a particular document does not exist in his office or that a particular entry of a specified tenor was not to be found in a register. As custodians of public documents, civil registrars are public officers charged with the duty, inter alia, of maintaining a register book where they are required to enter all applications for marriage licenses, including the names of the applicants, the date the marriage license was issued and such other relevant data. ⁶

The certification of "due search and inability to find" issued by the civil registrar of Pasig enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license. Unaccompanied by any circumstance of suspicion and pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of "due search and inability to find" sufficiently proved that his office did not issue marriage license no. 3196182 to the contracting parties.

The fact that private respondent Castro offered only her testimony in support of her petition is, in itself, not a ground to deny her petition. The failure to offer any other witness to corroborate her testimony is mainly due to the peculiar circumstances of the case. It will be remembered that the subject marriage was a civil ceremony performed by a judge of a city court. The subject marriage is one of those commonly known as a "secret marriage" — a legally non-existent phrase but ordinarily used to refer to a civil marriage celebrated without the knowledge of the relatives and/or friends of either or both of the contracting parties. The records show that the marriage between Castro and Cardenas was initially unknown to the parents of the former.

Surely, the fact that only private respondent Castro testified during the trial cannot be held against her. Her husband, Edwin F. Cardenas, was duly served with notice of the proceedings and a copy of the petition. Despite receipt thereof, he chose to ignore the same. For failure to answer, he was properly declared in default. Private respondent cannot be faulted for her husband's lack of interest to participate in the proceedings. There was absolutely no evidence on record to show that there was collusion between private respondent and her husband Cardenas.

It is noteworthy to mention that the finding of the appellate court that the marriage between the contracting parties is null and void for lack of a marriage license does not discount the fact that indeed, a spurious marriage license, purporting to be issued by the civil registrar of Pasig, may have been presented by Cardenas to the solemnizing officer.

In fine, we hold that, under the circumstances of the case, the documentary and testimonial evidence presented by private respondent Castro sufficiently established the absence of the subject marriage license.

IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible error committed by respondent appellate court.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

^#Footnotes

1 Filed on February 19, 1987 and docketed as Civil Case No. Q-50117.

2 Decision dated June 30, 1987, issued by Presiding Judge Antonio P. Solano, Quezon City RTC, Branch LXXXVI; Rollo, pp. 46-48.

3 Sixteenth Division, penned by Mr. Justice Justo P. Torres, with Mr. Justices Ricardo J. Francisco and Consuelo Ynares-Santiago, concurring; Decision dated November 27, 1991, Rollo, pp. 38-42.

4 Articles 53 (4) and 58, New Civil Code.

5 Article 80 (3), New Civil Code.

6 Article 70, New Civil Code.

Manalo vs Roldan Confesor, G.R. No. 102358, March 30, 1993

2009-08-23T03:57:00.001-07:00

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 102358 March 30, 1993

SPOUSES VICENTE and GLORIA MANALO, petitioners,
vs.
HON. NIEVES ROLDAN-CONFESOR, in her capacity as Undersecretary of Labor and Employment, JOSE SARMIENTO as POEA Administrator, CAREER PLANNERS SPECIALISTS' INTERNATIONAL, INC., and SPOUSES VICTOR and ELNORA FERNANDEZ, respondents.

P.M. Castillo for petitioners.

Fides C. Cordero-Tan and Roberto M.J. Lara for private respondents.

BELLOSILLO, J.:

In Our Decision of 19 November 1992, We set aside the Orders of respondent Undersecretary of Labor dated 5 July and 9 October 1991, as well as the Resolution of respondent POEA of 4 February 1991, and reinstated instead its Order of 7 May 1990.

Briefly, the facts in retrospect: Petitioners sued private respondents for illegal exaction, false advertisement and violation of other pertinent labor laws, rules and regulations. In its 7 May 1990 Order, POEA suspended the authority of Career Planners Specialists' International, Inc. (CAREER), for four (4) months for illegal exaction on two counts or, in lieu thereof, a fine of P40,000.00 was imposed, plus restitution of P28,714.00 to petitioner-spouses Vicente and Gloria Manalo, meted on respondent therein Filipino Manpower Services, Inc. (FILMAN), also a fine of P40,000.00 on two counts of misrepresentation, and reiterated its perpetual disqualification from recruitment activities. On 4 February 1991, however, on the basis of the same facts, POEA reversed itself on the penalty imposed on illegal exaction, reasoning that a clear and convincing evidence was necessary to justify the suspension of the authority/license of CPSI. On appeal, Undersecretary Confesor sustained POEA in reversing itself and held that the charge of illegal exaction should be supported by other corroborative circumstantial evidence, and on 9 October 1991 denied the motion for reconsideration of petitioners.

In Our decision, We stressed that only a substantial evidence was required to establish administrative findings of fact. This holds true even if the determination may result in the suspension of authority or license to operate a particular line of business and will not justify requiring a higher degree of proof.

On the dispute regarding the failure of petitioners to state in their testimonies the exact date of payment of the recruitment fee of P40,000.00 and their conflicting versions on how the P30,000.00 cash was presented, even POEA must have considered it trivial as it did not even touch on the issue. For, indeed, what is more important is that peso bills were delivered to and received by respondent-spouses. We further stated that with the payment of a check for P10,000.00, which remains undisputed, the charge of unlawful exaction was clearly established since according to POEA only P3,000.00 was legally chargeable.

On 11 December 1992, private respondents Victor and Elnora Fernandez and CPSI (excluding FILMAN) filed a motion for reconsideration primarily arguing that there was sufficient legal and evidentiary basis for the order of reconsideration issued by POEA as well as the orders of DOLE sustaining the same, and that this Court substituted its own discretion for that of POEA and DOLE.

On 15 December 1992, public respondents also filed their own separate motion for reconsideration arguing that "[t]he POEA and DOLE Orders dated 4 February 1991, 5 July 1991 and 9 October 1991, finding private respondents not guilty of illegal exaction, are themselves supported by substantial evidence, and are therefore not subject to judicial inquiry."

We disagree. According to POEA itself, in its original Order of 7 May 1990 —

After a careful evaluation of the facts and the evidence presented, We are more inclined to give weight to complainants' (petitioner spouses herein) posture. Complainants' version of the case spontaneously presented in their pleadings specifically during the clarificatory questioning is, to our mind, more convincing than respondent's (sic) stand. Moreover, the manner by which complainants narrated the whole incident inspired belief in the allegation that respondent CAREER is indeed guilty of illegal exaction (emphasis supplied).

Nothing could be clearer than these categorical statements. We are surprised why, on the basis of the very same findings, public respondent POEA executed a complete turn-about and adopted a different factual conclusion. This is grave abuse of discretion.

Contrary to the present claim of respondents, there is nothing in the assailed orders which states that the version of private respondents has become more believable than that of petitioners. For that reason, the position of POEA expressed in its original Order that the "complainants' version of the case . . . is, to our mind, more convincing than respondent's (sic) stand," and that "[m]oreover, the manner by which complainants narrated the whole incident inspired belief in the allegation that respondent CAREER is indeed guilty of illegal exaction," remains unreversed, even up to now.

This view finds support in the fact that public respondents reconsidered only the penalty of suspension or P40,000.00 fine to be imposed on CPSI, while the other orders, i.e., restitution of P28,714.00 to complainants and the P40,000.00 fine on FILMAN, remained undisturbed. The assailed orders were virtually saying that while the testimonies of petitioners met the substantial degree of proof requirement (otherwise petitioners could not have been entitled to restitution), the penalty of suspension or P40,000.00 fine could not be imposed on CPSI because the same testimonies did not meet the clear and convincing evidence requirement. In short, there was no change in the findings of fact, but only an escalation of the degree of proof.

The tergiversation of the penalty imposed just because the testimonies were "uncorroborated" was a patent mistake. There is no law, rule or jurisprudence that states that an uncorroborated evidence is ipso facto insufficient and the penalty of suspension or P40,000.00 fine may not be imposed for illegal exaction, even if the charge was substantially proved and restitution of the money exacted was ordered. Even in criminal cases (People v. Mision, G.R. No. 63480, 26 February 1991, 194 SCRA 432; People v. Catubig, G.R. No. 71626, 22 March 1991, 195 SCRA 505; People v. Base, G.R. No. 92124, 6 May 1991, 196 SCRA 688; People v. Santiago, G.R. No. 46132, 28 May 1991, 197 SCRA 556; People v. Aquino, G.R. No. 83214, 28 May 1991, 197 SCRA 578; People v. Lazo, G.R. No. 75367, 19 June 1991, 198 SCRA 274; People v. Sampaga, G.R. No. 91539, 30 September 1991, 202 SCRA 157; People v. Babac, G.R. No. 97932, 23 December 1991, 204 SCRA 968), which require proof beyond reasonable doubt, a credible, convincing and positive testimony of a lone witness is sufficient to sustain conviction. The original Order regarded and characterized the subject testimonies as "convincing" and "inspired belief".

The subsequent categorization of petitioners' testimonies as "[m]ere allegation of complainant" (p. 2, POEA Resolution of 4 February 1991; See also p. 2, respondent Undersecretary's Order of 5 July 1991) is startling, coming as it does from the same body which found CPSI guilty of illegal exaction "[a]fter a careful evaluation of the facts and the evidence presented." The same may also be said of a later pronouncement that there was "no concrete evidence or proof to support the POEA Administrator's initial findings" (p. 2, respondent Undersecretary's Order of 5 July 1991; see also p. 2, POEA Resolution of 4 February 1991).

As regards the failure of petitioners to state the exact date when the payment was made and their different versions on how the money was bundled together, public respondents may not now complain that these circumstances remain unexplained. It should be noted that petitioners were questioned separately and they were not told of the discrepancies in each other's testimony. We consider it unjust for public respondents to expect petitioners to explain inconsistencies which were not brought to their attention, or of which they were given no chance to explain, and then discredit their testimonies on the basis of said inconsistencies.

Public respondents may be correct in saying that where two conflicting versions are supported by substantial evidence, the administrative body may choose which to uphold and for that reason even flip-flop on its factual findings without thereby incurring grave abuse of discretion. In this case however, public respondent reversed the penalty, not on the basis that one version is more believable than the other, but that the testimonies of complainants, after describing them to be "more convincing than respondent's stand" and which "inspired belief," were not clear and convincing. Thus, to that extent, public respondents committed grave abuse of discretion correctable by certiorari.

Admittedly, an appellate court may not reverse an award for civil liability because an obligation was not established beyond reasonable doubt for, in civil cases, only a preponderance of evidence is required. Likewise, an administrative body may not require a degree of proof higher than the substantial evidence contemplated in Sec. 5, Rule 133, of the Rules of Court, and the rules of administrative due process enunciated in Ang Tibay v. The Court of Industrial Relations (69 Phil. 635, G.R. No. 46496, 27 February 1940), otherwise, what would prevent an agency from demanding proof beyond reasonable doubt or require at least two or more witnesses to support an administrative finding of fact. Then, an agency may even create its own degree of proof — like requiring five witnesses, or an evidence be totally uncontested, to prove a claim — all in the spirit of the relative independence of administrative bodies from technical rules.

The Court is charged with having unjustifiably invaded the turf of public respondents. We need only stress that the judicial power vested in the Supreme Court and all lower courts necessarily includes the authority 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" (Art. VIII, Sec. 1, Constitution). Clearly then, even presidential prerogatives are not beyond judicial review when, as in this case before Us, there is grave abuse of discretion or an utter disregard of the law.

In Atlas Consolidated Mining and Development Corp. v. Factoran, Jr. (G.R. No. 75501, 15 September 1987, 154 SCRA 49, 57), We reiterated the rule that judicial review of administrative findings of fact may be made —

. . . when there has been a denial of due process, or mistake of law or fraud, collusion or arbitrary action in the administrative proceeding (L-21588 — Atlas Development and Acceptance Corp. v. Gozon, etc. et al., 64 O.G. 11511 [sic] [1987]), where the procedure which led to factual findings is irregular; when palpable errors are committed; or when a grave abuse of discretion, arbitrariness, or capriciousness is manifest (Ateneo de Manila University v. CA, 145 SCRA 100-101 [1986]; International Hardwood and Veneer Co., of the Philippines v. Leogardo, 117 SCRA 967; Baguio Country Club Corporation v. National Labor Relations Commission, 118 SCRA 557; Sichangco v. Commissioner of Immigration, 94 SCRA 61; and Eusebio v. Sociedad Agricola de Balarin, 16 SCRA 569).

Respondents assert that FILMAN, as the deploying agency of petitioners, was legally entitled to charge P10,000 for both petitioners, hence, its acceptance of a check for the same amount was not an overcharge. Here, public respondents appear confused. Their orders and resolutions prove otherwise.

It is undisputed that the Fernandez spouses demanded and received the check for P10,000.00, but the subject orders and resolutions of public respondents did not particularly indicate whether the check was received by the Fernandezes in their capacity as officers of CPSI or of FILMAN. Nevertheless, since the check was delivered to the Fernandezes in the office of CPSI and in the absence of proof that at that time the latter represented themselves as officers of FILMAN, there is no conclusion other than that the Fernandezes indeed acted as officers of CPSI. Moreover, the same amount represented by the check was the object of CPSI's prayer for recovery of placement fees in its answer with counterclaim and position paper filed before respondent POEA (Annexes "C" and "D", Petition; Rollo, pp. 75-79 and 115-117). If, as alleged, the Fernandezes did receive the check as officers of FILMAN, then CPSI and the Fernandez couple (and the other respondents as well) have to do a lot of explaining as to why CPSI prayed for an award of placement fees.

Significantly, the original order of POEA deducting from the amount to be reimbursed the sum of P3,000.00 as appropriate placement fees of both petitioners is a clear manifestation that a private recruitment entity (CPSI) and not a private employment agency (FILMAN) was entitled to those fees.

As regards the remaining issue on procedure, the same is deemed waived as it is brought to Us only for the first time in this motion for reconsideration.

WHEREFORE, finding no substantial argument to warrant modification of Our Decision of 19 November 1992, much less a reversal, and for lack of merit, We Resolve to DENY WITH FINALITY the motions for reconsideration respectively filed by public and private respondents.

SO ORDERED.

Cruz, Griño-Aquino and Quiason, JJ., concur.