1
SPECIAL PROCEEDINGS of for a long time and under such circumstance that
he may be presumed dead.
Bar Exam Questions 2020-27
(b) As the RTC judge who granted Gina’s petition,
Absentee; Declaration of Absence vs. Declaration of will you give due course to the OSG’s notice of
Presumptive Death (2009) appeal?
Frank and Gina were married on June 12, 1987 in
Manila. Barely a year after the wedding, Frank SUGGESTED ANSWER:
exhibited a violent temperament, forcing Gina, for
reasons of personal safety, to live with her parents. A NO. Appeal is not a proper remedy since the decision
year thereafter, Gina found employment as a is immediately final and executor upon notice to the
domestic helper in Singapore, where she worked for parties under Art. 247 of the Family Code (Republic
ten consecutive years. All the time she was abroad, vs Bermudez-Lorino, 449 SCRA 57 [2005]). The OSG
Gina had absolutely no communications with Frank, may assail RTC‟s grant of the petition only on the
nor did she hear any news about him. While in premise of grave abuse of discretion amounting to
Singapore, Gina met and fell in love with Willie. On lack or excess of jurisdiction. The remedy should be
July 4, 2007, Gina filed a petition with the RTC of by certiorari under Rule 65 of the Rules of Court.
manila to declare Frank presumptively dead, so that
she could marry Willie. The RTC granted Gina’s Cancellation or Correction; Notice (2007)
petition. The office of the Solicitor General (OSG) filed (a) B files a petition for cancellation of the birth
a notice of Appeal with the RTC, stating that it was certificate of her daughter R on the ground of the
appealing the decision of the Court of Appeals on falsified material entries therein made by B’s husband
questions of fact and law. as the informant. The RTC sets the case for hearing
and directs the publication of the order for hearing
(a) Is a petition for declaration of Presumptive Death and directs the publication of the order once a week
a special proceeding? for three consecutive weeks in a newspaper of general
circulation. Summons was service on the Civil
SUGGESTED ANSWER: Registrar but there was no appearance during the
hearing. The RTC granted the petition. R filed a
No. the petition for Declaration of Presumptive Death petition for annulment of judgment before the Court
provided in Art. 41 of the “Family Code” is not the of Appeals, saying that she was not notified of the
special proceeding governing absentees under Rule petition and hence, the decision was issued in
107 of the Rules of Court whose rules of procedure violation of due process. B opposed saying that the
will not be followed (Republic vs. C.A., 458 SCRA publication of the court order was sufficient
[2005]). compliance with due process. Rule. (5%)
Said petition for Declaration of Presumptive Death SUGGESTED ANSWER:
under Article 41 of the Family Code is a summary
proceeding, authorized for purposes only of R‟s petition for annulment of judgment before the
remarriage of the present spouse, to avoid incurring Court of Appeals should be granted. Although there
the crime of bigamy. Nonetheless, it is in the nature of was publication of the court order acting the petition
a special proceeding, being an application to establish to cancel the birth certificate, reasonable notice still
a status or a particular fact in court. has to be served on R as she has an interest affected
by the cancellation. (Sec. 3 and 4, Rule 108, Rules of
ALTERNATIVE ANSWER: Court) She is an indispensable party (Republic v.
Benemerito, 425 SCRA 488 [2004]), and notice has to
A petition for declaration of presumptive death may be served on her, not for the purpose of vesting the
be considered a special proceeding, because it is so court with jurisdiction, but to comply with the
classified in the Rules of Court (Rule 107, Rules of requirements of fair play and due process (Ceruila v.
Court), as differentiated from an ordinary action Delantar, 477 SCRA 134 [2005]). ALTERNATIVE
which is adversarial. It is a mere application or ANSWER: The petition for annulment of judgment
proceeding to establish the status of a party or a should not be granted. While R is an indispensable
particular fact, to viz: that a person has been unheard party, it has been held that the failure to service notice
on indispensable parties is cured by the publication
1
, 2
made because the action is one in rem (Alba v. Court Escheat Proceedings (2002)
of Appeals, 465 SCRA 495 [2005]; Barco v. Court of Suppose the property of D was declared escheated on
Appeals, 420 SCRA 39 [2005]). July 1, 1990 in escheat proceedings brought by the
Solicitor General. Now, X, who claims to be an heir of
Civil Actions vs. Special Proceedings (1998) D, filed an action to recover the escheated property. Is
Distinguish civil actions from special proceedings. the action viable? Why? (2%)
[3%]
SUGGESTED ANSWER:
SUGGESTED ANSWER:
No, the action is not viable. The action to recover
A CIVIL ACTION is one by which a party sues escheated property must be filed within five years
another for the enforcement or protection of a right, from July 1, 1990 or be forever barred. (Rule 91, sec. 4).
or the prevention or redress of a wrong. (See. 3[a],
Rule 1, 1997 Rules of Civil Procedure), while a SPECIAL Extra-judicial Settlement of Estate (2005)
PROCEEDING is a remedy by which a party seeks to Nestor died intestate in 2003, leaving no debts. How
establish a status, a right or a particular fact. (Sec. may his estate be settled by his heirs who are of legal
3[C]. Rule 1,1997 Rules of Civil Procedure.) age and have legal capacity? Explain. (2%)
Cancellation or Correction; Entries Civil Registry SUGGESTED ANSWER:
(2005)
Helen is the daughter of Eliza, a Filipina, and Tony, a If the decedent left no will and no debts, and the heirs
Chinese, who is married to another woman living in are all of age, the parties may, without securing letters
China. Her birth certificate indicates that Helen is the of administration, divide the estate among themselves
legitimate child of Tony and Eliza and that she is a by means of a public instrument or by pending action
Chinese citizen. Helen wants her birth certificate for partition and shall file a bond with the register of
corrected by changing her filiation from "legitimate" deeds in an amount equivalent to the value of the
to "illegitimate" and her citizenship from "Chinese" to personal property involved as certified to under oath
"Filipino" because her parents were not married. by the parties concerned. The fact of extra-judicial
What petition should Helen file and what procedural settlement shall be published in a newspaper of
requirements must be observed? Explain. (5%) general circulation once a week for three consecutive
weeks in the province. (Sec. 1, Rule74, Rules of Court)
SUGGESTED ANSWER:
Habeas Corpus (1993)
A petition to change the record of birth by changing Roxanne, a widow, filed a petition for habeas corpus
the filiation from "legitimate" to "illegitimate" and with the Court of Appeals against Major Amor who is
petitioner's citizenship from "Chinese" to "Filipino" allegedly detaining her 18-year old son Bong without
because her parents were not married, does not authority of the law. After Major Amor had a filed a
involve a simple summary correction, which could return alleging the cause of detention of Bong, the
otherwise be done under the authority of R.A. No. Court of Appeals promulgated a resolution
9048. A petition has to be filed in a proceeding under remanding the case to the RTC for a full-blown trial
Rule 108 of the Rules of Court, which has now been due to the conflicting facts presented by the parties in
interpreted to be adversarial in nature. (Republic v. their pleadings. In directing the remand, the court of
Valencia, G.R. No. L-32181, March 5, 1986) Appeals relied on Sec.9(1), in relation to Sec. 21 of BP
129 conferring upon said Court the authority to try
Procedural requirements include: (a) filing a verified and decide habeas corpus cases concurrently with the
petition; (b) naming as parties all persons who have RTCs. Did the Court of Appeals act correctly in
or claim any interest which would be affected; (c) remanding the petition to the RTC? Why?
issuance of an order fixing the time and place of
hearing; (d) giving reasonable notice to the parties SUGGESTED ANSWER:
named in the petition; and (e) publication of the order
once a week for three consecutive seeks in a No, because while the CA has original jurisdiction
newspaper of general circulation. (Rule 108, Rules of over habeas corpus concurrent with the RTCs, it has
Court) no authority for remanding to the latter original
actions filed with the former. On the contrary, the CA
1
SPECIAL PROCEEDINGS of for a long time and under such circumstance that
he may be presumed dead.
Bar Exam Questions 2020-27
(b) As the RTC judge who granted Gina’s petition,
Absentee; Declaration of Absence vs. Declaration of will you give due course to the OSG’s notice of
Presumptive Death (2009) appeal?
Frank and Gina were married on June 12, 1987 in
Manila. Barely a year after the wedding, Frank SUGGESTED ANSWER:
exhibited a violent temperament, forcing Gina, for
reasons of personal safety, to live with her parents. A NO. Appeal is not a proper remedy since the decision
year thereafter, Gina found employment as a is immediately final and executor upon notice to the
domestic helper in Singapore, where she worked for parties under Art. 247 of the Family Code (Republic
ten consecutive years. All the time she was abroad, vs Bermudez-Lorino, 449 SCRA 57 [2005]). The OSG
Gina had absolutely no communications with Frank, may assail RTC‟s grant of the petition only on the
nor did she hear any news about him. While in premise of grave abuse of discretion amounting to
Singapore, Gina met and fell in love with Willie. On lack or excess of jurisdiction. The remedy should be
July 4, 2007, Gina filed a petition with the RTC of by certiorari under Rule 65 of the Rules of Court.
manila to declare Frank presumptively dead, so that
she could marry Willie. The RTC granted Gina’s Cancellation or Correction; Notice (2007)
petition. The office of the Solicitor General (OSG) filed (a) B files a petition for cancellation of the birth
a notice of Appeal with the RTC, stating that it was certificate of her daughter R on the ground of the
appealing the decision of the Court of Appeals on falsified material entries therein made by B’s husband
questions of fact and law. as the informant. The RTC sets the case for hearing
and directs the publication of the order for hearing
(a) Is a petition for declaration of Presumptive Death and directs the publication of the order once a week
a special proceeding? for three consecutive weeks in a newspaper of general
circulation. Summons was service on the Civil
SUGGESTED ANSWER: Registrar but there was no appearance during the
hearing. The RTC granted the petition. R filed a
No. the petition for Declaration of Presumptive Death petition for annulment of judgment before the Court
provided in Art. 41 of the “Family Code” is not the of Appeals, saying that she was not notified of the
special proceeding governing absentees under Rule petition and hence, the decision was issued in
107 of the Rules of Court whose rules of procedure violation of due process. B opposed saying that the
will not be followed (Republic vs. C.A., 458 SCRA publication of the court order was sufficient
[2005]). compliance with due process. Rule. (5%)
Said petition for Declaration of Presumptive Death SUGGESTED ANSWER:
under Article 41 of the Family Code is a summary
proceeding, authorized for purposes only of R‟s petition for annulment of judgment before the
remarriage of the present spouse, to avoid incurring Court of Appeals should be granted. Although there
the crime of bigamy. Nonetheless, it is in the nature of was publication of the court order acting the petition
a special proceeding, being an application to establish to cancel the birth certificate, reasonable notice still
a status or a particular fact in court. has to be served on R as she has an interest affected
by the cancellation. (Sec. 3 and 4, Rule 108, Rules of
ALTERNATIVE ANSWER: Court) She is an indispensable party (Republic v.
Benemerito, 425 SCRA 488 [2004]), and notice has to
A petition for declaration of presumptive death may be served on her, not for the purpose of vesting the
be considered a special proceeding, because it is so court with jurisdiction, but to comply with the
classified in the Rules of Court (Rule 107, Rules of requirements of fair play and due process (Ceruila v.
Court), as differentiated from an ordinary action Delantar, 477 SCRA 134 [2005]). ALTERNATIVE
which is adversarial. It is a mere application or ANSWER: The petition for annulment of judgment
proceeding to establish the status of a party or a should not be granted. While R is an indispensable
particular fact, to viz: that a person has been unheard party, it has been held that the failure to service notice
on indispensable parties is cured by the publication
1
, 2
made because the action is one in rem (Alba v. Court Escheat Proceedings (2002)
of Appeals, 465 SCRA 495 [2005]; Barco v. Court of Suppose the property of D was declared escheated on
Appeals, 420 SCRA 39 [2005]). July 1, 1990 in escheat proceedings brought by the
Solicitor General. Now, X, who claims to be an heir of
Civil Actions vs. Special Proceedings (1998) D, filed an action to recover the escheated property. Is
Distinguish civil actions from special proceedings. the action viable? Why? (2%)
[3%]
SUGGESTED ANSWER:
SUGGESTED ANSWER:
No, the action is not viable. The action to recover
A CIVIL ACTION is one by which a party sues escheated property must be filed within five years
another for the enforcement or protection of a right, from July 1, 1990 or be forever barred. (Rule 91, sec. 4).
or the prevention or redress of a wrong. (See. 3[a],
Rule 1, 1997 Rules of Civil Procedure), while a SPECIAL Extra-judicial Settlement of Estate (2005)
PROCEEDING is a remedy by which a party seeks to Nestor died intestate in 2003, leaving no debts. How
establish a status, a right or a particular fact. (Sec. may his estate be settled by his heirs who are of legal
3[C]. Rule 1,1997 Rules of Civil Procedure.) age and have legal capacity? Explain. (2%)
Cancellation or Correction; Entries Civil Registry SUGGESTED ANSWER:
(2005)
Helen is the daughter of Eliza, a Filipina, and Tony, a If the decedent left no will and no debts, and the heirs
Chinese, who is married to another woman living in are all of age, the parties may, without securing letters
China. Her birth certificate indicates that Helen is the of administration, divide the estate among themselves
legitimate child of Tony and Eliza and that she is a by means of a public instrument or by pending action
Chinese citizen. Helen wants her birth certificate for partition and shall file a bond with the register of
corrected by changing her filiation from "legitimate" deeds in an amount equivalent to the value of the
to "illegitimate" and her citizenship from "Chinese" to personal property involved as certified to under oath
"Filipino" because her parents were not married. by the parties concerned. The fact of extra-judicial
What petition should Helen file and what procedural settlement shall be published in a newspaper of
requirements must be observed? Explain. (5%) general circulation once a week for three consecutive
weeks in the province. (Sec. 1, Rule74, Rules of Court)
SUGGESTED ANSWER:
Habeas Corpus (1993)
A petition to change the record of birth by changing Roxanne, a widow, filed a petition for habeas corpus
the filiation from "legitimate" to "illegitimate" and with the Court of Appeals against Major Amor who is
petitioner's citizenship from "Chinese" to "Filipino" allegedly detaining her 18-year old son Bong without
because her parents were not married, does not authority of the law. After Major Amor had a filed a
involve a simple summary correction, which could return alleging the cause of detention of Bong, the
otherwise be done under the authority of R.A. No. Court of Appeals promulgated a resolution
9048. A petition has to be filed in a proceeding under remanding the case to the RTC for a full-blown trial
Rule 108 of the Rules of Court, which has now been due to the conflicting facts presented by the parties in
interpreted to be adversarial in nature. (Republic v. their pleadings. In directing the remand, the court of
Valencia, G.R. No. L-32181, March 5, 1986) Appeals relied on Sec.9(1), in relation to Sec. 21 of BP
129 conferring upon said Court the authority to try
Procedural requirements include: (a) filing a verified and decide habeas corpus cases concurrently with the
petition; (b) naming as parties all persons who have RTCs. Did the Court of Appeals act correctly in
or claim any interest which would be affected; (c) remanding the petition to the RTC? Why?
issuance of an order fixing the time and place of
hearing; (d) giving reasonable notice to the parties SUGGESTED ANSWER:
named in the petition; and (e) publication of the order
once a week for three consecutive seeks in a No, because while the CA has original jurisdiction
newspaper of general circulation. (Rule 108, Rules of over habeas corpus concurrent with the RTCs, it has
Court) no authority for remanding to the latter original
actions filed with the former. On the contrary, the CA
1
