Prodigals Notes

Memorandum
Guidelines in preparation of Memorandum:
TRIAL MEMORANDUM FOR PLAINTIFF
MEMORANDUM FOR THE PLAINTIFF
Plaintiff, through counsel, respectfully submits this memorandum to wit:
Plaintiff, by counsel, respectfully states that:
Plaintiff, by counsel, respectfully submits its memorandum in the case:
Plaintiff, through the undersigned counsel, unto this Honorable
Court respectfully submits this Memorandum to support her cause of
action and alleges:
PLAINTIFF, through the undersigned counsel, most respectfully submits
this Memorandum, as follows:
Plaintiff, by counsel most respectfully submits this memorandum and
alleges:
Plaintiff, by the undersigned counsel, avers that:
Plaintiff, through the undersigned counsel, respectfully submits the
following Memorandum and states that:

PREFATORY STATEMENT
Optional but it may create a great impression, find if any article that
may described the claims of the side you have chosen. It was the General
Rule or Law that support the argument that youre going to present. You can
find some on Human Relation, Chapter two of the new civil code as
amended.
Rights may be waived, unless the waiver is contrary to law, public policy,
morals, or gooe customs or prejudicial to a third person with a right recognized
by law. (Art. 6, Civil Code)
Every person must, in exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good
faith. (Art. 19 Civil Code) (abuse of authority doctrine)
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Every person who, contrary to law, willfully or negligently causes damage
to another shall indemnify the latter for the same (Art. 20, Civil Code). (Torts
and damages)
Every person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for damages. (Art. 21 Civil Code)
(in relation of Art 100 of RPC)
Every person who though an act of performance by another, or any other
means, acquires or comes into possession of something at the expense of the
latter without just or legal ground, shall return the same to him (Art. 22 Civil
Code) (promise to marry)
In all contractual, property or other relations, when one of the parties is at
disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for his
protection. (Art. 24, Civil Code)
STATEMENT OF THE CASE / (NATURE OF THE CASE)

Statement of the Case it gives a brief idea of what the case is all about.
It contains the following:
1. The nature of the case;
2. Claims or Allegation of the Plaintiff; and
3. The Respond or Defense of the defendant
It should be for at least three to four sentences. The following sentences
can be added but not necessary (optional):
Pre-conclusion for your case based on law.
Following the principle in Article 2176 of New Civil Code, Gloria Supermart,
Inc. should be held liable for the damages caused to plaintiff.
Both parties have presented their evidences and witnesses. The case is now
submitted for decision.
STATEMENT OF FACTS

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Statement of facts is the narration of the MATERIAL FACTS of the case. Be
sure that you can identify what is material and relevant from immaterial and
irrelevant, this is very important because this will be basis of your arguments
and discussions. Always narrate the facts in third person voice.
1. To make things to be simple, while reading the transcript or affidavit for
getting the relevant facts, cross-out the facts that you think that was
immaterial or irrelevant to the case. Example

Q.

What were you doing there?

A.
I was about to cook spaghetti for my son Ricky when I realized I didnt
have any tomato sauce so I went to Gloria Supermart to buy tomato sauce
and some other things we needed in the house.

The answer is irrelevant and immaterial because the focus of the

case was the Negligence and liability of the defendant or the
contributory negligence of the plaintiff.
2. Make an outline, so that you can easily see the chronological event of
the facts and it can also easily see the series of event. It helps identify
the characters if ever the problem involves five or more character.
Ms. Bueno and her Son Ricky,
1. Shopping/ picking up groceries;
2. a small ball rolled along the aisle and Ricky ran after
Gloria Supermart
it;
about 10 a.m. on
3. Ricky slips with a heavy bang on a wet section of the
May 11, 2010
aisle. (saw by Ms. Bueno);
4. Ricky shrieked from pain in his right wrist which he
used to stop his fall;
5. No any sign near that puddle or around it, warning
customers of the danger it presents;
6. Ricky was brought to the Philippine Orthopedic
Hospital;
7. Ms. Bueno, mentally suffered more pain than Ricky
did;
8. recover the use of his right wrist for six weeks
Gloria Supermart, Inc
9. Spent P22,840.00 for doctors fee, hospitalization,
1. exercised proper diligence in making its premises safe for its
and medicine. We also bought toys for Ricky to
customers; that the accident involving Ricky was something it
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a r r ynotDreasonably
. B u g aanticipate
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in any event, Ricky and her mother contributed to Ricky slipping
on the floor and suffering physical injury and pain; and that
Gloria Supermart provided immediate help and assistance to
Ricky and her mother.
2. Mr. Castro infer from the position of Ricky that he bumped into
the shelf containing syrup bottles and knocked off some of

Example:

Prodigals Notes
Memorandum
STATEMENT OF THE ISSUE/S
The issues of the case, as determined by the court in its pre-trial order,
are as follows:

Statement of issue or issues means the claim or disputes of the

parties. In the other words those facts that are contradict the theories of the
parties. This the MAIN ISSUE/S
ARGUMENTS AND DISCUSSION

Arguments will depend on the issue/s that was identified on the

problem. Build your case by the support of the side issues of contributing
factor. Reasoning with logic is the very foundation of the memorandum and it
can be made by the suggested format such as follows: (IRAC)
1. Issues it may be the main issues or other issues that can be used to
support the main issue. For example:
WHETHER OR NOT GLORIA SUPERMART IS LIABLE FOR INJURY
SUFFERED RICKY BUENO; (this is the MAIN issue)

Issues the supporting the main issues are:

a. GLORIA SUPERMART IS LIABLE FOR DAMAGES SINCE ITS EMPLOYEES
NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE ACCIDENT;
b. GLORIA SUPERMART DID NOT EXERCISE PROPER DILIGENCE IN MAKING ITS
PREMISES SAFE FOR ITS CUSTOMERS.
Widen your imagination on the possibilities that may happen, as if you are
the one who was involved in the situation itself.

2. Rules of laws Applicable;

3. Application of the Law to the Facts of the Problem; and
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4. Conclusion.

CONCLUSION

Optional for it may draw a general conclusion based on the arguments

that are established. It may be based on the law itself.
PRAYER
The WHEREFORE phrase is the Relief that being Prayed for by the parties
to the court.
I.

WHEREFORE, premises considered, plaintiff most respectfully prays of this

Honorable Court that judgment be rendered in favor of plaintiff and against
defendant:
1) DECLARING defendant to be liable for the injuries sustained by
plaintiffs son Ricky;
2) ORDERING defendant to pay the plaintiff actual damages in the amount
of P27,840.00, plus attorneys fees and cost of the suit; and
3) ORDERING defendant to pay the plaintiff moral damages in the amount
of P500,000.00 or as the Court may deem proper in the premises.
OTHER RELIEFS just and equitable under the premises are likewise prayed
for.

II.

WHEREFORE, premises considered, it is prayed to this HONORABLE

COURT, that judgement be rendered making Gloria Supermart Inc., liable for
damages for the injury suffered by Ms. Buenos son.
Other relief just and equitable is likewise prayed for.

III.

WHEREFORE, premises considered, it is respectfully prayed that

judgment be rendered in favor of plaintiff and against defendant by:
1) FINDING Gloria Supermart liable for the commission of negligent acts
under Art. 2176 & 2180 when it failed to maintain safe premises for its
customers; causing injury to Ricky.
2) ORDERING Gloria Supermart to pay both actual damages of P22,840,
and moral damages in an amount this Honorable Court finds just and reasonable
under the circumstances.
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3) Other just and equitable remedies under the circumstances are likewise
prayed for.
IV.

Wherefore, premises considered, it is respectfully prayed that Defendant

be made liable to pay P500,000.00 for actual damages caused by the negligent
act of Defendant and its employees.
Such other relief which are just and equitable under the circumstances are
likewise prayed for.

V.

WHEREFORE, it is respectfully prayed that this Honorable Court will decide

in favor of the plaintiff and against defendant, Gloria Supermart, Inc., the
following reliefs:
1. Payment of actual or compensatory damages in the amount of P27,
840.00;
2. Moral damages for the physical suffering of the victim and mental
anguish, fright and serious anxiety experienced by the plaintiff;
3. Exemplary or corrective damages;
4. Cost of litigation
Other measures of reliefs that are just and equitable under the premises
are likewise prayed for.

2011 Bar Exams Trial Memorandum

on April 8, 2012
Jonna Bueno filed an action for damages of P500,000.00 against Gloria
Supermart, Inc. before the Regional Trial Court of Quezon City for the injuries
that her son, Ricky, suffered at its supermarket, for the expense, and for the
emotional pain that it brought to him and his mother.
Consider the following testimonies that the witnesses from either side
presented at the trial of the case. Assume that you are the lawyer either for
Bueno or for Gloria Supermart and write a trial memorandum for the side you
have chosen to represent. You would want to convince the trial court to
decide the case in your clients favor.

Excerpts from Transcript of Stenographic Notes

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Prodigals Notes
Memorandum
Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June
7, 2011.
DIRECT EXAMINATION OF PLAINTIFFS WITNESS
COURT STAFF: (After swearing in the witness) State your name and personal
circumstances.
WITNESS:
I am Jonna Bueno, 35 years old, married, and a resident of 89
Little Baguio St., San Juan City, Metro Manila. I am an accountant.
ATTY. REX BELTRAN: Your Honor, we are offering the testimony of Ms. Bueno
to prove that her son, Ricky, slipped on the wet floor of Gloria Supermart by
reason of the gross negligence of its management and employees, causing
him to suffer excruciating pain from a fractured arm and undergo great
discomfort and depression. Ms. Bueno herself incurred an enormous medical
expense and suffered from mental stress.
COURT: What do you say counsel?
ATTY. EMIL SUNGA: Subject to cross, Your Honor.
COURT: Proceed, Atty. Beltran.
ATTY. BELTRAN:
Q.
Ms. Bueno, do you know the defendant Gloria Supermart?
A.
Yes, sir.
Q.
Why do you know it?
A.
I have been buying our groceries and other things from Gloria
Supermart for the past 20 years.
Q.
Where is Gloria Supermart located?
A.
On Ortigas Avenue, San Juan, Metro Manila, just two blocks from our
condominium.
Q.
Do you remember where you were at about 10 a.m. on May 11, 2010?
A.
Yes, Sir.
Q.
Where were you?
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A.
I was at Gloria Supermart.
Q.
What were you doing there?
A.
I was about to cook spaghetti for my son Ricky when I realized I didnt
have any tomato sauce so I went to Gloria Supermart to buy tomato sauce
and some other things we needed in the house.
Q.
Did you have any companion?
A.
Yes, my boy Ricky.
Q.
How old was Ricky at that time?
A.
His birthday is May 2, 2005. He was 5 years old already.
Q.
How did you do your shopping for groceries with Ricky on tag?
A.
I had a cart. He would sometimes ride on it or walk along the aisles
with me. At times, I will ask him to pick safe things from the shelves and put
them in the cart. He also grabs goodies that he likes.
Q.
Do you remember anything unusual that happened while you and
Ricky were picking up groceries at the shelves?
A.
Yes, a small ball rolled along the aisle and Ricky ran after it.
Q.
Was he able to catch the ball?
A.
No. Although Ricky had gone some distance down the aisle from
where I stood, I saw him slip with a heavy bang on a wet section of the aisle.
Q.
What happened to him after he slipped?
A.
He shrieked from pain in his right wrist which he used to stop his fall.
Q. What did you do after you saw Ricky fall down the floor, looking hurt?
A.
I immediately came to his side to help him. I also asked a store clerk
who came around to help me carry Ricky to my car so I could bring him to
the hospital. I did not get to finish my shopping.
Q.
Did the store clerk help you?
A.
Yes, Sir. But he was not very friendly. Afterwards, I brought Ricky to
the Philippine Orthopedic Hospital.
Q.
You said that Ricky slipped on a wet floor section of the aisle. How did
you know that the section you referred to was wet?
A.
I saw the puddle of liquid on the floor.
Q.
Did you get to know what kind of liquid it was?
A.
It was syrup that seeped out from a leaking bottle in a nearby shelf.
Q.
Was there any supermarket cleaner nearby when you came near that
puddle of syrup?
A.
None sir.
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Q.
Did you see any supermarket grocery clerk around?
A.
None, Sir. There should have been someone to warn people of that
puddle of syrup on the floor.
Q.
Did you see any sign near that puddle or around it, warning
customers of the danger it presents?
A.
None, Sir, although I heard someone shout, Hoy, bata, ingat! May
basa diyan!
ATTY. SUNGA: I move to strike out that testimony. It is hearsay.
ATTY. BELTRAN: It is admissible as a res gestae statement, Your Honor.
COURT: Strike out the answer.
Q.
You said that you brought your son, Ricky, to the Philippine
Orthopedic Hospital, who attended to your son at the hospital?
A.
Dr. John D. Lim, an orthopedic surgeon. He was the physician at the
emergency room. I think he is in his mid-forties.
Q.
You said it was his right wrist that Ricky complained of. How did you
know that?
A.
He pointed to it while crying from pain. After we brought him to the
Philippine Orthopedic Hospital, I saw the doctor operate on his right wrist to
restore the position of a fractured bone. Later, the doctor showed me an xray picture of the wrist bone before and after the operation.
Q.
How long did Ricky stay in the hospital?
A.
The doctor required Ricky to stay overnight at the hospital for pain
management and care. He ordered his release on the following day.
Q.
Based on your observation, how long did it take for Ricky to recover
the use of his right wrist?
A.
About six weeks.
Q.
How did your son take these things that happened to him?
A.
He complained of great pain at the beginning. Later, he moved with
discomfort and difficulty, unable to use both hands.
Q.
How about you, Ms. Bueno? How did you take these events?

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A.
He is my son. I mentally suffered more pain than he did. He is my
only son. I dont know what I would do if I lose him. My husband and I waited
for years before we had Ricky. And then this happens.
Q.
How much expense, if any, did you incur for the hospitalization and
medical treatment of Ricky?
A.
I spent P22,840.00 for doctors fee, hospitalization, and medicine. We
also bought toys for Ricky to distract him from the pain that he suffered. We
spent approximately P5,000.00.
Q.
Do you have evidence of these expenses?
A.
Yes, Sir, here are my receipts
[Note: Assume that the marking and presentation of the receipts for the
expenses mentioned above, although omitted here, were done right.]
ATTY. BELTRAN: That is all for the witness.
COURT: Cross.
CROSS-EXAMINATION BY ATTY. SUNGA
ATTY. SUNGA:
Q.
Ms. Bueno, you said that you brought your son Ricky to Gloria
Supermart on May 11, 2010. Did you need him to be there whenever you buy
your groceries?
A.
No, Sir, but I did not have anyone to leave him home with.
Q.
But when you took him there, you of course are aware that the
supermarket did not have a leave-your-child service?
A.
Yes, Sir.
Q.
Consequently, you were aware that the responsibility for looking after
Rickys needs and safety while in the supermarket is primarily in your hands
as his mother?
A.
Yes, Sir, but supermarkets always expect children to come with their
parents and so it has to make sure that the place is safe for children.
Q.
But do you agree that, as his mother, he is safer when he stays by
your side in a public place like a supermarket?
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A.
Yes, Sir.
Q.
Still, you let him slip away from your control, when he ran after that
ball?
A.
Yes, Sir, but the supermarket should keep their eyes open for things
like loose balls running down their aisles, drawing children away from their
parents, and letting them slip on carelessly spilled liquids.
Q.
But did you not notice that the aisles of Gloria Supermart have sales
clerks that attend to inquiries and needs of its customers?
A.
Not all the time. When my son had his accident, no one was around to
prevent it from happening.
ATTY. SUNGA: That is all, Your Honor.
Excerpts from Transcript of Stenographic Notes
Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June
14, 2011
DIRECT EXAMINATION OF DEFENDANTS WITNESS
COURT STAFF: (After swearing in the witness) State your name and personal
circumstances.
WITNESS; I am Rene Castro, 55 years old, married, and a resident of 12 V.G.
Cruz, Sampaloc, Manila. I am a supermarket supervisor.
ATTY. EMIL SUNGA: Your Honor, we are offering the testimony of Mr. Castro to
prove that Gloria Supermart exercised proper diligence in making its
premises safe for its customers; that the accident involving Ricky was
something it could not reasonably anticipate and so beyond its control; that,
in any event, Ricky and her mother contributed to Ricky slipping on the floor
and suffering physical injury and pain; and that Gloria Supermart provided
immediate help and assistance to Ricky and her mother.
COURT: What do you say counsel?
ATTY. BELTRAN: Subject to cross, Your Honor.
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COURT: Proceed Atty. Sunga.
ATTY. SUNGA:
Q.
Mr. Castro, you said that you are a supermarket supervisor. For whom
do you work as supermarket supervisor?
A.
I have been with Gloria Supermart for 5 years already, Sir.
Q.
Do you know the plaintiff Jonna Bueno?
A.
Yes, Sir, she has been a customer at our supermarket.
Q.
Do you recall seeing her at your supermarket about 10 a.m. on May
11, 2010?
A.
Yes, Sir.
Q.
Why do you recall seeing her there at that time and on that date?
A.
Because her son Ricky had an accident and I was around.
Q.
Did you see how the accident happened?
A.
No, Sir, but I was just at the next aisle fixing the new stocks of instant
noodles. When I heard the commotion, I quickly walked down there and saw
Ricky lying on the floor, crying with pain. Her mother, Ms. Bueno, was trying
to minister to him.
Q.
What else did you see?
A.
Some items from a nearby shelf had fallen down the floor.
Q.
What were these items?
A.
There were a couple of bottles of syrup, mostly in plastic bottles,
except one glass bottle that had broken and spilled part of its contents on
the floor.
Q.
To what do you account this?
A.
I could infer from the position of Ricky that he bumped into the shelf
containing syrup bottles and knocked off some of them.
Q.
Did you speak to Ms. Bueno about it?
A.
I talked to her at the hospital while we were waiting for Rickys
treatment to be finished and I asked her what happened.
Q.
What did she say?
A.
She said that Ricky saw a ball rolling down the aisle and he ran after
it. Somehow, he slipped on the floor and hurt his arm. She was so flustered.
Q.
Are children allowed in your supermarket?
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A.
All supermarkets allow customers to bring their children into the
store. It is often a necessity for them. It is understood of course that their
parents would look after them, preventing them from misbehaving, causing
damage to the merchandise, or getting injured.
Q.
Ms. Bueno said that Ricky slid on the floor because some syrup
seeped out of a leaking bottle in one of the shelves. Do you know anything
about it?
A.
Yes, sir. What she said is not true. The syrup must have come from
one of the bottles that Ricky knocked off from the shelf when he ran wild
down the aisle, supposedly running after a loose ball. There can be no other
explanation.
Q.
What did you do then?
A.
I helped Ms. Bueno pick up Ricky, intending to bring him to a hospital
but his mom insisted that we take him to her car so she can drive him
quickly to the hospital. I carried Ricky to her car and accompanied them to
the hospital.
Q.
Did Ms. Bueno tell you anything while you were in the car?
A.
She was blaming the supermarket for the accident.
Q.
Did you reply to her?
A.
No, Sir, I said nothing to upset her because she was driving and was
worried about her child.
ATTY. SUNGA: That is all, Your Honor.
CROSS-EXAMINATION BY ATTY. BELTRAN
ATTY. BELTRAN:
Q.
Mr. Castro, You said that you did not actually see the accident when it
happened, is that right?
A.
Yes, Sir.
Q.
In fact, you were in another aisle at that time?
A.
Yes, Sir.
Q.
So when you said that Ricky bumped into the shelf containing syrup
bottles and knocked off some of them, you were merely speculating on what
could have happened, right?
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A.
Yes, Sir, but the scene suggested it.
Q.
Since you did not see what actually happened at that aisle, is it
possible for some other person to have knocked off those bottles?
A.
Yes, Sir, that is possible but not likely since I did not see any person
leave the place in haste.
Q.
So, it is also possible that the syrup on the floor, spilled by someone
else, caused Ricky to slip as he was running after some ball before you
showed up?
A.
Yes, that is possible, but unlikely. The shelves are carefully stocked.
Q.
Do accidents resulting in injury happen in your supermarkets?
A.
Yes but not so often; about one accident a year, if I remember right.
These things are unavoidable because hundreds of people come to the
supermarket everyday.
Q.
How about shoplifting, does this happen often?
A.
Every now and then, Sir. Its normal for supermarkets.
Q.
So naturally you must have some procedure for dealing with events
like accidents or shoplifting?
A.
Yes, Sir.
Q.
To protect your rights and interests, is that correct?
A.
Yes, Sir.
Q.
Since Ricky had this serious accident that you claim was not your
fault as the scene suggested, did your supermarket bother to take pictures of
the puddle on the floor and the bottles of syrup that you said Ricky had
knocked off?
A.
No, Sir.
ATTY. BELTRAN: That is all for the witness.
LAWS AND JURISPRUDENCE
FAMILY CODE
PARENTAL AUTHORITY
ART. 209. Pursuant to the natural right and duty of parents over the person
and property of their unemancipated children, parental authority and
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responsibility shall include the caring for and rearing of such children for civic
consciousness and efficiency and the development of their moral, mental
and physical character and well-being.
Art. 20. Parental authority and responsibility may not be renounced or
transferred except in the cases authorized by law.
Art. 220. The parents and those exercising parental authority shall have with
respect to their unemancipated children or wards the following rights and
duties:
(1) To keep them in their company, to support, educate and instruct them by
right precept and good example, and to provide for their upbringing in
keeping with their means;
xxx
xxx
xxx
(8) To impose discipline on them as may be required under the
circumstances; and
(9) To perform such other duties as are imposed by law upon parents and
guardians.
Art. 221. Parents and other persons exercising parental authority shall be
civilly liable for the injuries and damages caused by the acts or omissions of
their unemancipated children living in their company and under their
parental authority subject to the appropriate defenses provided by law.
CIVIL CODE
PERSONAL LIABILITY
Art. 20. Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the same.
NUISANCE
Art. 694. A nuisance is any act, omission, establishment, business, condition
of property, or anything else which:
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(1) Injures or endangers the health or safety of others; or xxx
xxx

xxx

Art. 697. The abatement of a nuisance does not preclude the right of any
person injured to recover damages for its past existence.
Attractive Nuisance
One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails to
exercise ordinary care to prevent children from playing therewith or resorting
thereto, is liable to a child of tender years who is injured thereby, even if the
child is technically a trespasser in the premises. (Hidalgo Enterprises,
Inc., v. Balandan, et al., L-3422, June 13, 1952, 91 Phil. 488)
QUASI-DELICTS
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
An accident pertains to an unforeseen event in which no fault or negligence
attaches to the defendant. xxx
On the other hand, negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate
the conduct of human affairs, would do, or the doing of something which a
prudent and reasonable man would not do. xxx
Accident and negligence are intrinsically contradictory; one cannot exist with
the other. Accident occurs when the person concerned is exercising ordinary
care, which is not caused by fault of any person and which could not have
been prevented by any means suggested by common prudence. (Jarco
Marketing Corporation v. Court of Appeals, G.R. No. 129792, December 21,
1999, 321 SCRA 375)
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The doctrine of res ipsa loquitor applies where (1) the accident was of such
character as to warrant an inference that it would not have happened except
for the defendants negligence; (2) the accident must have been caused by
an agency or instrumentality within the exclusive management or control of
the person charged with the negligence complained of; and (3) the accident
must not have been due to any voluntary action or contribution on the part
of the person injured. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920,
November 25, 2005, 476 SCRA 236)
The test for determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this:
could a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence
of the course actually pursued? (Philippine National Construction Corporation
v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569)
Art. 2179. When the plaintiffs own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate cause of the
injury being the defendants lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.
Contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls below
the standard which he is required to conform for his own protection.
xxx

xxx

xxx

It is an act or omission amounting to want of ordinary care on the part of the

person injured which, concurring with the defendants negligence, is the
proximate cause of the injury. (National Power Corporation v. Heirs of Noble
Casionan, G.R. No. 165969, November 27, 2008, 572 SCRA 71)
Proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces
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Prodigals Notes
Memorandum
the injury, and without which the result would not have occurred. (Ramos v.
C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, 597 SCRA 526)
Art. 2180. The obligation imposed by Article 2176 is demandable not only for
ones own acts or omissions, but also for those of persons for whom one is
responsible.
xxx

xxx

xxx

The owners and managers of an establishment or enterprise are likewise

responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
xxx

xxx

xxx

The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage.
DAMAGES
Art. 2197. Damages may be:
(1)
(2)
(3)
(4)
(5)
(6)

Actual or compensatory;
Moral;
Nominal;
Temperate or moderate;
Liquidated; or
Exemplary or corrective.

Art. 2199. Except as provided by law or by stipulation, one is entitled to an

adequate compensation only for such pecuniary loss suffered by him as he
has duly proved. Such compensation is referred to as actual or compensatory
damages.

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Art. 2203. The party suffering loss or injury must exercise the diligence of a
good father of a family to minimize the damages resulting from the act or
omission in question.
Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall
reduce the damages that he may recover.
The underlying precept on contributory negligence is that a plaintiff who is
partly responsible for his own injury should not be entitled to recover
damages in full but must bear the consequences of his own negligence.
(National Power Corporation v. Heirs of Noble Casionan, G.R. No. 165969,
November 27, 2008, 572 SCRA 71)
In Phoenix Construction, Inc., v. Intermediate Appellate Court, where we held
that the legal and proximate cause of the accident and of Dionisios injuries
was the wrongful and negligent manner in which the dump truck was parked
but found Dionisio guilty of contributory negligence on the night of the
accident, we allocated most of the damages on a 20-80 ratio. In said case,
we required Dionisio to bear 20% of the damages awarded by the appellate
court, except as to the award of exemplary damages, attorneys fees and
costs.
(Estacion v. Bernardo, G.R. No. 144723, February 27, 2006,
483 SCRA 222)
Art. 2217. Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate
result of the defendants wrongful act for omission.
Art. 2219. Moral damages may be recovered in the following and analogous
cases:
xxx
xxx
(2) Quasi-delicts causing physical injuries;
xxx
xxx

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RULES OF COURT
EVIDENCE
Sec. 36.Testimony generally confined to personal knowledge; hearsay
excluded. A witness can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from his own perception,
except as otherwise provided in these rules.
Where the statements or writings attributed to a person who is not on the
witness stand are being offered not to prove the truth of the facts stated
therein but only to prove that those statements were actually made or those
writings were executed, such evidence is not covered by the hearsay
evidence rule.(Cornejo, Sr., vs. Sandiganbayan, G.R. No. 58831, July 31,
1987, 152 SCRA 559)
Under the doctrine of independently relevant statements, only the fact that
such statements were made is relevant, and the truth or falsity thereof is
immaterial. The hearsay rule does not apply. (People v. Gumimba et al., G.R.
No. 174056, February 27, 2007, 517 SCRA 25)
Sec. 42. Part of res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in evidence as part of res
gestae. xxx
A declaration made spontaneously after a startling occurrence is deemed as
part of the res gestae when (1) the principal act, the res gestae is a startling
occurrence; (2) the statements were made before the declarant had time to
contrive or devise; and (3) the statements concern the occurrence in
question and its immediately attending circumstances. (Zarate v. Regional
Trial Court, Branch 43, Gingoog City, Misamis Oriental, G.R. No. 152263, July
3, 2009, 591 SCRA 510)
Sec. 48. General rule. The opinion of witness is not admissible, except as
indicated in the following sections.

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Sec. 3. Disputable presumptions. The following presumptions
are
satisfactory
if uncontradicted, but may be contradicted and
overcome by other evidence:
xxx
(d) That a person takes ordinary care of his concerns;
(q) That the ordinary course of business has been followed;
(y) That things have happened according to the ordinary course of nature
and ordinary nature habits of life;
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to
prove by a preponderance of evidence: (1) the damages suffered by the
plaintiff; (2) the fault or negligence of the defendant or some other person
for whose act he must respond; and (3) the connection of cause and effect
between the fault or negligence and the damages incurred. (Child Learning
Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236)

Republic of the Philippines

REGIONAL TRIAL COURT
National Judicial Capital Region
Branch ___, Quezon City
JONNA BUENO
Plaintiff,
- versus -

Civil Case No. 27-112011

For Damages

GLORIA SUPERMART, INC.

Defendant.
x---------------------x
MEMORANDUM FOR PLAINTIFF
Plaintiff, through counsel, respectfully submits this memorandum to wit:
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Memorandum
PREFATORY STATEMENT
Every person who, contrary to law, willfully or negligently causes damage
to another shall indemnify the latter for the same (Art. 20, Civil Code).
STATEMENT OF THE CASE / (NATURE OF THE CASE)
This case refers to an action for recovery of damages filed by the plaintiff
for the injuries sustained by her 5-year old son when the latter slipped on the
wet floor in one of the aisles of the defendants grocery store. Plaintiff claims
that the defendant is liable for the negligent act of its employees who failed to
clear the puddle of liquid through appropriate signs or barriers and claims that
the gross negligence of the management and employees of respondent is the
proximate cause of the injury. Respondent for its defense claims that it exercised
proper diligence in maintaining the safety of its customers and that the accident
is beyond its control. In addition, the respondent also claims that the event was
merely an unfortunate accident for which it could not be held liable. In any
event, defendant claims, the plaintiff is guilty of contributory negligence.
Following the principle in Article 2176 of New Civil Code, Gloria Supermart,
Inc. should be held liable for the damages caused to plaintiff.
Both parties have presented their evidences and witnesses. The case is
now submitted for decision.

STATEMENT OF THE FACTS

Plaintiff Jonna Bueno (BUENO), married, a resident of 89 Little Baguio St.,
San Juan City, Metro Manila, has been a customer of Defendant Gloria
Supermart, Inc. (GSI), a supermarket located at Ortigas Avenue, San Juan, Metro
Manila.
On May 11, 2010, at about 10:00 a.m., plaintiff BUENO, together with her
son Ricky went to GSI to buy groceries. BUENO claimed that while she and her
son were picking up groceries at the shelves, a small ball rolled along the aisle
and Ricky ran after it then soon thereafter, she saw him slip with a heavy bang
on a wet section of the aisle. No sign near the puddle warning customers of the
danger was present although she heard someone shouted Hoy, bata, ingat!
May basa diyan! So, immediately, BUENO came to Rickys side to help him and
brought him to the hospital where he stayed overnight for medication. BUENO
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Prodigals Notes
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claimed that Ricky complained of great pain and it took about six (6) weeks for
him to recover.
BUENO further claimed that Ricky moved with discomfort and difficulty,
unable to use both hands. Also, that as a mother, she suffered mental pain.
BUENO blamed GSI for the injuries suffered by her son claiming that not any
employee of GSI was there to prevent the incident; that the wet floor caused
Ricky to slip on it.
GSI, on the other hand, denies the claims of BUENO and through its
witness Rene Castro, claims that it exercised proper diligence in making its
premises safe for its customers. Moreover, GSI claims that the accident involving
Ricky was something beyond its control; that in any event, Ricky and her mother
contributed to Rickys slipping on the floor; that GSI provided immediate help
and assistance to Ricky and her mother. Furthermore, GSI asserts that BUENO
has the responsibility for looking after Rickys needs and safety.
STATEMENT OF THE ISSUE/S
The issues of the case, as determined by the court in its pre-trial order,
are as follows:
I.
WHETHER OR NOT GLORIA SUPERMART IS LIABLE FOR INJURY SUFFERED
RICKY BUENO;
II.
WHETHER OR NOT JONNA BUENO WAS CONTRIBUTORILY NEGLIGENT FOR
THE ACCIDENT, WHICH CALLS FOR THE REDUCTION IN CLAIMED DAMAGES;
III.
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO THE DAMAGES THAT
SHE IS CLAIMING FOR.
ARGUMENTS AND DISCUSSION
On the first issue:
1. GLORIA SUPERMART IS LIABLE FOR
DAMAGES SINCE ITS EMPLOYEES
NEGLIGENCE WAS THE PROXIMATE
CAUSE OF THE ACCIDENT.
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Prodigals Notes
Memorandum
As it can be gleaned from the records, Ricky suffered from a fractured
bone when he tried to stop his fall as he slipped over a puddle of syrup. The
syrup apparently seeped out from a broken bottle in a nearby shelf. Ordinarily,
the supermarkets employees should have detected the mess and cleaned the
area. At the very least, it should have placed a warning sign informing buyers to
pass by with caution. But it didnt. It failed to meet its responsibility to keep the
premises neat and clear from obstructions. It was negligent in maintaining
cleanliness and should be held accountable if by reason of such negligence,
customers have suffered from mishaps.
In Jarco Marketing Corporation v. Court of Appeals (G.R. 129792,
December 21, 1999), the Court defined negligence as the omission to do
something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do. Following this
definition, the test of negligence is therefore this: could a prudent man, in the
position of the person to whom negligence is attributed, foresee harm to the
person injured as a reasonable consequence of the course actually pursued?
Applying this question to the case, it is clear that Gloria Supermart was
negligent. As a supermarket, tons of customers pass by its aisles everyday to
purchase something. It was the responsibility of Gloria to keep those aisles clean
and clear in order to ensure the safety and continued patronage of its buyers.
When a bottle of syrup got broken and its contents spilled on the floor, it was
the burden of Gloria to keep on eye out for these expected eventualities and to
immediately address the issue. It should have expected, like any ordinarily
prudent and reasonable man, that a hapless buyer would eventually step on it
without noticing and slip because of it. After all, buyers do not look on the floor
when they buy their groceries. It is common knowledge that they look sideways
on the aisles as they search for the items they need. Gloria should have
deployed employees to regularly survey their aisles and see if they steered clear
from obstructions.
This negligence was the proximate cause of Rickys injury. Proximate
cause is defined as that cause, which, in natural and continuous sequence
unbroken by any efficient intervening cause, produces the injury, and without
which the result would not have occurred. (Ramos v. COL Realty Corp., G.R. No.
184905, August 28, 2009). Had there been no syrup on the floor, Ricky would
not have slipped and suffered a bad fall. Even if, admittedly, Ricky was running
at the time he stepped on the puddle, he wouldnt have ordinarily fractured his
bone had the floor been clear from obstructions. Besides, syrups, by their very
nature, are transparent. Only a scrutinizing eye can detect its presence on the
floor and buyers are not expected to act in this manner.
Considering that Gloria Supermarts employees were negligent and such
negligence was the proximate cause for Rickys injury, Gloria Supermart should
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Prodigals Notes
Memorandum
be held accountable. Article 2180 of the Civil Code supports this conclusion. It
states, The obligation imposed by Article 2176 is demandable not only for ones
own acts or omissions, but also for those persons for whom one is responsible.
xxx xxx xxx
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their functions.
2. GLORIA SUPERMART DID NOT
EXERCISE PROPER DILIGENCE IN
MAKING ITS PREMISES SAFE FOR ITS
CUSTOMERS.
Diligence on the part of Gloria Supermart Inc. should not be presumed but
should be proven that its management and employees were not grossly
negligent in making its premises safe for its customers.
As stated in Sarco Marketing Corp. vs. Court of Appeals, negligence is the
omission to do something which is a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do,
or the doing of something which a prudent and reasonable man would not do.
In the instant case, there was negligence on the part of the Supermart
since it failed to install any warning sign on the puddle of syrup on the floor,
warning the customers of the due consequences thereof. Furthermore, in any big
grocery stores such as the Gloria Supermart, there should always be a standby
floor cleaner who will eventually mop the floor in case there is liquid in it since it
is fact that a fitted or cemented floor is usually slippery when wet. There was
no supermarket cleaner nearby when Ricky slipped on the floor was was alleged
by Ms. Bueno during the investigation, hence proving the negligence of the
management in making the premises safe.
The doctrine of res ipsa loquitor applies where (1) the accident was of
such character as to warrant an inference that it would not have happened
except for the defendants negligence; (2) the accident must have been caued
by an agency or instrumentality within the exclusive management or control of
the person charged with the negligence complained of and (3) the accident
must have been due to any voluntary action or contribution on the part of the
person injured (chilled Learning Center Inc., b. Tagorio, GR No. 150920, Nov. 25,
2005, 476 SCRA236)
In this case, it was evident that the accident would have happened if it
were not for the defendants negligence because it did not immediately wipe the
spilled syrup. The cause of the accident was as well within the exclusive
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Prodigals Notes
Memorandum
management and control of the person charged with the negligence complained
of because Mr. Castro could have assigned a floor cleaner in the area and the
accident was not due to any voluntary action or contribution on the part of the
person injured as will be proven in the succeeding paragraphs.
Therefore, Gloria Supermart Inc. was grossly negligent in making its
premises safe for its customers.
On the second issue:
1.
JONNA
BUENO
WAS
CONTRIBUTORILY NEGLIGENT
HER SONS INJURY

NOT
FOR

Jonna was not negligent in watching over her son, while they were grocery
shopping. Indeed, parents have the natural right and duty to take care and
discipline their children. But Jonna did not show lack of due care when she let
Ricky run after the ball. The records show that she was watching her son at that
time. Furthermore, a child running after a ball does not necessarily mean that he
is engaged in play. The child may be actually trying to fetch the ball and return it
to its rightful place or owner. There was no reason for Jonna discipline nor
closely monitor her child at that time. Also, Jonna couldnt have reasonably
foreseen her sons mishap. As mentioned earlier, the syrup was presumably
transparent and couldnt be detected unless scrutinized up close. She also had
good reason to believe that the supermarket regularly maintains the cleanliness
of its store. There is no basis to find her negligent.
2. THE ACCIDENT OF RICKY WAS NOT
THROUGH HIS OWN CONTRIBUTORY
NEGLIGENCE.
As was alleged by Mr. Castro during the investigation, Ricky bumped into
the shelf containing the syrup bottles and knocked off such bottles thus causing
the spilling of the liquid on the floor. This was not, however, proven by Mr. Castro
because he did not actually see Ricky bump into the shelf. Mr. Castro was merely
speculating it as what he has stated during the investigation. As based on Rules
on Evidence Sec. 36, a witness can testify only to those facts which he knows of
his personal knowledge. Therefore, it cant be said that Rickys accident was due
to his own contributory negligence.
As stated in National Power Corp.vs. Heirs of Noble Casionan, contributory
negligence is conduct on the part of the injured party contributing as a legal
cause to the harm he has suffered which falls below the standard which is
required to conform for his own protection. It is an act or omission amounting to
want of ordinary care on the part of the person injured which concurrig with the
defendants negligence, is the proximate cause of the injury.
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Prodigals Notes
Memorandum
In the instant case, the defendants negligence of not wiping the wet floor
was the proximate cause of Rickys injuries. Proximate cause is defined as that
cause which, in natural or continous sequence, unbroken by any efficient cause
produces the injury and without which the result would not have occurred.
(Ramos vs. C.O.L Realty Corp. G.R. No. 184905, Aug. 28, 2009, 597 SCRA 526).
The proximate cause of Rickys injury was the puddle of syrup on the floor
which caused him to slide. The owners and managers therefore of the
establishment are likewise responsible for damages.
3. GRANTING ARGUENDO THAT
THERE IS NO PROOF AS TO WHOM
OR WHAT CAUSED THE SYRUP TO
FALL ON THE FLOOR, GLORIA
SUPERMARKET IS STILL LIABLE
UNDER RES IPSA LOQUITOR.
In his testimony, Rene Castro made a baseless inference that the syrup on
the floor must have come from one of the bottles that Ricky knocked off from
the shelf when he ran wild down the aisle. This should not be given credence
since Rene himself testified that he did not see how the incident happened.
Therefore, he did not have the competence to testify on that matter. But
granting, for the sake of argument, that there is no proof as to who or what
caused the spillage, Gloria Supermart should still be held liable based on the
doctrine of res ipsa loquitor. First of all, Rickys accident, as explained earlier,
was due to the supermarket employees negligence in failing to maintain the
cleanliness of the store. Secondly, it is without a doubt that the supermarkets
premises is within exclusive management and control of Gloria Supermart.
Thirdly, it has been established that Ricky did not contribute to his injury. Any
other person would have slipped, had they stepped on the syrup-coated floor. All
these three elements put into operation the doctrine of res ipsa loquitor, which
strengthens plaintiffs position that the supermarket is liable for damages.
On the third issue:
1. THE PLAINTIFF IS ENTITLED TO
THE DAMAGES SHE IS ASKING FOR.
In every tort case filed under Art. 2176 of the Civil Code, plaintiff has to
prove by a preponderance of evidence: (1) the damages suffered by the plaintiff;
(2) the fault or negligence of the defendant or some other person whose act he
must respond and (3) the connection of cause and effect between the fault or
negligence and the damage incurred. (Child learning Center Inc. v. Tagorio)
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Memorandum
In the instant case, the plaintiff was able to prove the damages suffered
since the child Ricky was hospitalized and was operated on his wrist and it took
6 weeks for the child to recover. Likewise, the fault or negligence of the
defendant was also proven in that it failed to exercise the diligence of a good
father of a family to prevent the damage and there was a connection between
the cause and effect between the fault or negligence and the damage incurred.
Moral damages can also be claimed by Ms. Bueno because of the physical
suffering, mental anguish, shock, social humiliation and similar injuries which
Ricky has suffered.
Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages.
And Ms. Bueno is entitled to such as shown by her hospital bills and receipts.
CONCLUSION
Defendant Gloria Supermarket is liable for the negligent acts of its
employees. Under the concept of vicarious liability, the owners and managers of
an establishment are likewise responsible for damages caused by their
employees. (Article 2180, NCC)
PRAYER
WHEREFORE, premises considered, plaintiff most respectfully prays of this
Honorable Court that judgment be rendered in favor of plaintiff and against
defendant:
1) DECLARING defendant to be liable for the injuries sustained by
plaintiffs son Ricky;
2) ORDERING defendant to pay the plaintiff actual damages in the amount
of P27,840.00, plus attorneys fees and cost of the suit; and
3) ORDERING defendant to pay the plaintiff moral damages in the amount
of P500,000.00 or as the Court may deem proper in the premises.
OTHER RELIEFS just and equitable under the premises are likewise prayed
for.
(Manila for) Quezon City, Philippines. November 27, 2011.

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ATTY. REX BELTRAN

Counsel for Plaintiff
PTR No. 54815, 1/17/2011
IBP No. 589546
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Prodigals Notes
Memorandum
Roll of Attorneys No. 8147
MCLE Compliance No. II-843
The Branch Clerk of Court
RTC, Branch 1
Quezon City
Greetings:
Please submit the foregoing Memorandum for the Courts consideration.
Copy furnished:
ATTY EMIL SUNGA
Counsel for Defendant
EXPLANATION
In view of time and manpower restrictions (constrained), the above
Memorandum was served via registered mail as personal service could not be
availed of without causing undue hardship to plaintiff.
(Sgd.) ATTY. REX BELTRAN
Counsel for Palintiff

Memorandum 2012
Mr. Henry Chao is charged before the Metropolitan Trial Court (MeTC) Manila
with five (5) counts of Violation of Batas Pambansa Big. 22 (B.P. 22). Consider
the factual scenario from the testimonies of complainant Mr. Ben Que and
accused Mr. Henry Chao.
Assume to be the Defense Counsel and prepare a MEMORANDUM
FOR THE ACCUSED for your client, Mr. Henry Chao.
Testimony
of
Mr.
Ben
Que
(After the cases were called for joint trial)
P. Prosecutor : Good Morning, Your Honor. Appearing for the prosecution.
Ready.
D. Counsel : Good Morning, Your Honor. Appearing as counsel for the
accused. Ready.
P. Prosecutor : We are calling to the witness stand, the complainant, Mr.
Ben Que, who will prove the commission of the offense.
Court Staff : Mr. Ben Que, do you swear to tell the truth, the whole truth
and nothing but the truth in this proceeding?
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Witness : Yes, sir.
Court Staff
:
State your name, age, status and other personal
circumstances.
Witness : I am Ben Que, 60 years old, married, and a resident of 123
Tridalo Street, Mandaluyong City
P. Prosecutor : Mr. Que, do you know Mr. Henry Chao who is the accused in
this case and, if so, under what circumstances?
Witness : Yes, sir. He is the Manager of Atlas Parts. Last June 01, 2011,
accused borrowed from me the amount of P 50,000.00, with 5/o monthly
interest, payable in five (5) equal monthly installments of P 12,500.00. He
said that the money will be used to pay for their stocks.
P. Prosecutor : Did you execute a document to evidence your transaction?
Witness : As per our agreement, he issued and delivered to me five ( 5)
checks.
D. Counsel : Your Honor, please. For the record, I take exception to the
statement of the witness that he received checks from the accused. If we
closely examine these instruments, it will show that they are NOW slips, that
is , Negotiable Order of Withdrawal slips. These are not bills of exchange
within the meaning of the Negotiable Instruments Law, and therefore, cannot
be considered as checks.
P. Prosecutor : Your Honor, they are still bank instruments. Complainant Mr.
Que specifically required the issuance of checks to facilitate and ensure the
payment of the obligation, and the accused issued and delivered them for
that purpose. Violation of the Bouncing Checks Law is malum prohibitum.
The law was enacted to maintain faith in bank instruments for utilization in
commercial transactions. We have to apply the spirit of the law.
COURT : Observation noted.
P. Prosecutor : When and where did the accused execute and hand over to
you these five (5) instruments?
Witness : On June 01, 2011, at my house in Mandaluyong City, after I gave
him in cash the P 50,000.00 that he loaned.
P. Prosecutor : And where are these instruments now?
Witness : Here sir. (Witness handling them to the prosecutor.)
P. Prosecutor : May I manifest for the record the observation that the
instruments are of the same size and material as the normal checks and
have these check-like features:
NOW Account No. 123456
Atlas Parts
PAY TO: Mr. Ben Que
PESOS: Twelve Thousand Five
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No. 0001
Date: July 1,
2011
P 12,500.00

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Prodigals Notes
Memorandum
Hundred Pesos
Sgd.
Chao
Alloy
Pasong
Makati

Tamo

Henry

Bank
Branch

P. Prosecutor : Do you know whose signature is that appearing on the

lower right side of this instrument and all the four (4) others, as well?
Witness : Those are the signatures of the accused Henry Chao. I personally
saw him sign them and thereafter, handed the five (5) instruments to me.
P. Prosecutor : May I request that No. 0001 dated July 1, 2011 in the
amount of P 12,500.00 be marked as Exhibit A for the prosecution; No. 0002
dated August 1, 2011 also in the same amount as Exhibit B; No. 0003 dated
September 2, 2011 as Exhibit C; No. 0004 dated October 1, 2011 as Exhibit
D; and No. 0005 dated November 1, 2011 as Exhibit E.
COURT : Mark them as requested.
P. Prosecutor : What did you do with these instruments which represented
the installment payments of accused for his loan obligation?
Witness : On their respective due dates, I deposited each of them to my
Savings Account at BOD Bank, Manila City Hall Branch in Manila, but all of
them were dishonored by the drawee, Alloy Bank, for the reason "Account
Closed."
P. Prosecutor : What proof do you have that these instruments were
dishonored?
Witness : I received several debit advices from BOD Bank together with
the returned slips with a stamp at the back stating as follows:

DISHONORED/RETU
RNED
Reason:
Account
Closed
Officer: Mr. M

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P. Prosecutor : May I request that the stamps of dishonor and the reason
"Account Closed" appearing at the back of each instrument be
correspondingly marked as Exhibits A-1 to E-1, respectively.
COURT : Mark them accordingly.
D. Counsel : I move to strike out this particular testimony for being
hearsay. This witness is not competent to testify on these matters pertaining
to bank records.
COURT : Does the defense deny that all five (5) instruments were
dishonored and returned to the witness?
D. Counsel : No, Your Honor. But these matters should be testified on by
the bank personnel.
COURT : Motion to strike is denied.
P. Prosecutor : What action did you take?
Witness : After each dishonor, I personally went to Mr. Chao and
demanded that he make good his commitment, but he merely ignored my
demands.
P. Prosecutor : What did you do then after all the five (5) instruments were
dishonored and your demands ignored?
Witness : I consulted a lawyer and he advised me to send a formal
demand letter to the accused, which I did. On January 2, 2012, I sent the
letter by registered mail to Mr. Henry Chao to his office address at 007
Malugay Street, Malabon City giving him five (5) days to make good his
promise.
Here is the registry receipt.
P. Prosecutor : I request that the demand letter be marked as Exhibit F and
that the Registry Receipt No. 321 dated January 2, 2012 posted at
Mandaluyong City Post Office be marked as Exhibit G for the prosecution.
COURT : Mark it then.
P. Prosecutor : Do you know if accused actually received your letter sent
by registered mail?
Witness : I assumed that he had received it because the registered letter
was not returned to me.
D. Counsel : I take exception to that statement. Your Honor, because
jurisprudence require actual receipt by the drawer of the demand before any
criminal liability can attach.
P. Prosecutor : May I clarify, Your Honor, that the five (5) days from notice
of dishonor given to the drawer of a check to make arrangement for payment
by the drawee of the amount of the dishonored checks is to forestall the
existence of a prima facie evidence of knowledge of the insufficiency of
funds. But here, the reason of the dishonor is "Account Closed," and not just
insufficiency of funds. In short, there is actual proof of lack of credit with
drawee bank. The account is already closed and accused cannot even make
a deposit anymore.
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COURT : The manifestation is noted.
P. Prosecutor : Has the accused paid the amounts covered by the dishonored
instruments?
Witness : No, sir. He has arrogantly refused to make any payment.
P. Prosecutor : No further questions.
COURT : Cross.
D. Counsel : With the Court's permission. You earlier stated that accused
Henry Chao is the Manager of Atlas Parts and that the money borrowed was
used to pay for their stocks, is that correct?
Witness : Yes, sir. That is what he told me.
D. Counsel : So, it is clear that the money loaned from you was not used
by the accused for his benefit?
Witness : I do not know how he used it. The fact is that I lent the money to
him.
D. Counsel : Regarding the demand letter that you allegedly sent to
accused, do you have the registry return card showing that accused received
the letter?
Witness : No, sir. But I have the registry receipt. Since the letter was not
returned to sender, it is presumed that it was received by the addressee.
D. Counsel : Is it not a fact that you have filed another collection suit
against Atlas Parts seeking to recover the same P 50,000.00 covered by the
dishonored slips?
Witness : Yes, sir. That is true because I want to recover my money from
either of them.
D. Counsel : No further questions, Your Honor.
Testimony of Mr. Henry Chao
(After oath and formal of his of testimony.)
D. Counsel : Do you own NOW Account No. 123456 maintained at Alloy
Bank, Pasong Tamo Branch?
Witness : No, sir. That is owned by my employer Atlas Parts and, as the
Manager, I am the signatory.
D. Counsel : Mr. Chao, in June 2011 when you issued the dishonored NOW
slips, did you derive any personal benefit from the amount loaned?
Witness : No, sir. The money was used to pay an account payable.
D. Counsel : During the due dates of the NOW slips that you issued to Mr.
Que, were you still the Manager of Atlas Parts?
Witness : Not anymore, sir, because in the middle of June 2011, I resigned
as Manager, and I was not aware of the dishonor.
D. Counsel : Did you receive the demand letter sent to you by Mr. Que
after the dishonor?
Witness : No, sir.
COURT : Cross?
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Prodigals Notes
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P. Prosecutor : With the kind permission of the Court. Mr. Chao, is it not a
fact that Mr. Que specifically required you to issue checks to pay the monthly
installment of the loan?
Witness : Yes, sir.
P. Prosecutor : You will agree with me that without those five (5) checks, or
NOW slips as you call them, Mr. Que will not lend money to you?
Witness : Yes, sir.
P. Prosecutor : You will also agree that the demand letter of Mr. Que was
delivered to yo'ur office address because that is the address that you gave to
Mr. Que in connection with your transaction?
Witness : Yes, sir. That is possible, but I was not able to receive it because I
had already resigned and I could not do anything anymore.
P. Prosecutor : That is all, Your Honor.
LAWS AND JURISPRUDENCE
A. BATAS PAMBANSA BLG. 22
AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK
WITHOUT SUFFICIENT FUNDS OR CREDITS AND FOR OTHER PURPOSES.
Section 1. Checks without sufficient funds. - Any person who makes or draws
and issues any check to apply on account or for value, knowing at the time
of issue that he does not have sufficient funds in or credit with the drawee
bank for the payment of such check in full upon its presentment, which
check is subsequently dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for the same reason had not
the drawer, without any valid reason, ordered the bank to stop payment,
shall be punished by imprisonment of not less than thirty (30) days but not
more then one (1) year or by a fine of not less than but not more than double
the amount of the check which fine shall in no case exceed Two Hundred
Thousand Pesos, or both such fine and imprisonment at the discretion of the
court.
The same penalty shall be imposed upon any person who, having sufficient
funds in or credit with the drawee bank when he makes or draws and issues
a check, shall fail to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a period of ninety (90) days from
the date appearing thereon, for which reason it is dishonored by the drawee
bank.
Where .the check is drawn by a corporation, company or entity, the person
or persons who actually signed the check in behalf of such drawer shall be
liable under this Act.
Section 2. Evidence of knowledge of insufficient funds. - The making, drawing
and issuance of a check, payment of which is refused by the drawee because
of insufficient funds in or credit with such bank when presented within ninety
(90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or
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Prodigals Notes
Memorandum
drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not been paid by the
drawee.
Section 3. Duty of drawee; rules of evidence. - It shall be the duty of the
drawee of any check, when refusing to pay the same to the holder thereof
upon presentment, to cause to be written, printed, or stamped in plain
language thereon, or attached thereto, the reason for drawee's dishonor or
refusal to pay the same. Provided, that where there are no sufficient funds in
or credit with such drawee bank, such fact shall always be explicitly stated in
the notice of dishonor or refusal. In all prosecutions under this Act, the
introduction in evidence of any unpaid and dishonored check, having 'the
drawee's refusal to pay stamped or written thereon or attached thereto, with
the reason therefor as aforesaid, shall be prima facie evidence of the making
or issuance of said check, and the due presentment to the drawee for
payment and the dishonor thereof, and that the same was properly
dishonored for the reason written, stamped or attached by the drawee on
such dishonored check.
Notwithstanding receipt of an order to stop payment, the drawee shall state
in the notice that there were no sufficient funds in or credit with such bank
for the payment in full of such check, if such be the fact.
B. NEGOTIABLE INSTRUMENTS LAW
ACT NO. 2031
AN ACT ENTITLED "THE NEGOTIABLE INSTRUMENTS LAW."
Section 1. Form of negotiable instruments. - An instrument to be negotiable
must conform to the following requirements:
(a) It must be in writing and signed by the maker or drawer;
(b) Must contain an unconditional promise or order to pay a sum certain in
money;
(c) Must be payable on demand, or at a fixed or determinable future time;
(d) Must be payable to order or to bearer; and
(e) Where the instrument is addressed to a drawee, he must be named or
otherwise indicated therein with reasonable certainty.
Section 126. Bill of exchange, defined. - A bill of exchange is an
unconditional order in writing addressed by one person to another, signed by
the person giving it, requiring the person to whom it is addressed to pay on
demand or at a fixed or determinable future time a sum certain in money to
order or to bearer.
Section 185. Check, defined. - A check is a bill of exchange drawn on a bank
payable on demand. Except as herein otherwise provided, the provisions of
this Act applicable to a bill of exchange payable on demand apply to a check.
C. RULES OF COURT
RULE 132
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Section 34. Offer of evidence. - The court shall consider no evidence which
has not been formally offered. The purpose for which the evidence is offered
must be specified.
Section 35. When to make offer. - As regards the testimony of a witness, the
offer must be made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a
party's testimonial evidence. Such offer shall be done orally unless allowed
by the court to be done in writing.
JURISPRUDENCE
Isip vs. People
G. R. No. 170298, June 26, 2007, 525 SCRA 735
The concept of venue of actions in criminal cases, unlike in civil cases, is
jurisdictional. The place where the crime was committed determines not only
the venue of the action but is an essential element of jurisdiction. It is a
fundamental rule that for jurisdiction to be acquired by courts in criminal
cases, the offense should have been committed or any one of its essential
ingredients should have taken place within the territorial jurisdiction of the
court. Territorial jurisdiction in criminal cases is the territory where the court
has jurisdiction to take cognizance or to try the offense allegedly committed
therein by the accused. Thus, it cannot take jurisdiction over a person
charged with an offense 13llegedly committed outside of that limited
territory. Furthermore, the jurisdiction of a court over the criminal case is
determined by the allegations in the complaint or information. And once it is
so shown, the court may validly take cognizance of the case. However, if the
evidence adduced during the trial shows that the offense was committed
somewhere else, the court should dismiss the action for want of jurisdiction.
Alferez vs. People
G.R. No. 182301, January 31, 2011, 641 SCRA 116
In this case, the prosecution merely presented a copy of the demand letter,
together with the registry receipt and the return card allegedly sent to
petitioner. However, there was no attempt to authenticate or identify the
signature on the registry return card. Receipts for registered letters and
return receipts do not by themselves prove receipt ; they must be properly
authenticated to serve as proof of receipt of the letter, claimed to be a notice
of dishonor. To be sure, the presentation of the registry card with an
unauthenticated signature, does not meet the required proof beyond
reasonable doubt that petitioner received such notice. It is not enough for
the prosecution to prove that a notice of dishonor was sent to the drawee of
the check .. The prosecution must also prove actual receipt of said notice,
because the fact of service provided for in the law is reckoned from receipt of
such notice of dishonor by the drawee of the check. The burden of proving
notice rests upon the party asserting its existence. Ordinarily, preponderance
of evidence is sufficient to prove notice. In criminal cases, however, the
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Prodigals Notes
Memorandum
quantum of proof required is proof beyond reasonable doubt. Hence, for B. P.
Big. 22 cases, there should be clear proof of notice. Moreover, for notice by
mail, it must appear that the same was served on the addressee or a duly
authorized agent of the addressee. From the registry receipt alone, it is
possible that petitioner or his authorized agent did receive the demand
letter. Possibilities, however, cannot replace proof beyond reasonable doubt.
The consistent rule is that penal statutes have "to be construed strictly
against the State and liberally in favor of the accused. The absence of a
notice of dishonor necessarily deprives the accused an opportunity to
preclude a criminal prosecution. As there is insufficient proof that petitioner
received the notice of dishonor, the presumption that he had knowledge of
insufficiency of funds cannot arise.
Lozano vs. Hon. Martinez
G.R. Nos. L-63419, L-66839-42, L-71654, L-74524-25, L-75122-49, L-7581213, L-75765-67 and L-75789, December 18, 1986, 146 SCRA 323
The gravemen of the offense punished by B.P. 22 is the act of making and
issuing a worthless check or a check that is dishonored upon its presentation
for payment. It is not the non-payment of an obligation which the law
punishes. The law is not intended or designed to coerce a debtor to pay his
debt. The thrust of the law is to prohibit, under pain of penal sanctions, the
making of worthless checks and putting them in circulation. Because of its
deleterious effects on the public interest, the practice is proscribed by law.
The law punishes the act not as an offense against property, but an offense
against public order.
Ambito vs. People
G.R. No. 127327, February 13, 2009, 579 SCRA 69
The mere act of issuing a worthless check - whether as a deposit, as a
guarantee or even as evidence of pre-existing debt - is malum prohibitum.
Under B.P. Big. 22, the prosecution must prove not only that the accused
issued a check that was subsequently dishonored. It must also establish that
the accused was actually notified that the check was dishonored, and that he
or she failed, within five (5) banking days from receipt of the notice, to pay
the holder of the check the amount due thereon or to make arrangement for
its payment. Absent proof that the accused received such notice, a
prosecution for violation of the Bouncing Checks Law cannot prosper.
The absence of a notice of dishonor necessarily deprives an accused an
opportunity to preclude a criminal prosecution. Accordingly, procedural due
process clearly enjoins that a notice of dishonor be actually sent to and
received by the accused. The accused has a right to demand - and the basic
postulates of fairness require-- that the notice of dishonor be actually sent to
and received by the same to afford him/her the opportunity to avert
prosecution under B.P. Big. 22.
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Prodigals Notes
Memorandum
Gosiaco vs. Ching
G.R. No. 173807, April 16, 2009, 585 SCRA 471
B.P. Big. 22 imposes a distinct civil liability on the signatory of the check
which is distinct from the civil liability of the corporation for the amount
represented from the check. The civil liability attaching to the signatory
arises from the wrongful act of signing the check despite the insufficiency of
funds in the account, while the civil liability attaching to the corporation is
itself the very obligation covered by the check or the consideration for its
execution. Yet these civil liabilities are mistaken to be indistinct. The
confusion is traceable to the singularity of the amount of each.
If we conclude, as we should, that under the current Rules of Criminal
Procedure, the civil action that is impliedly instituted in the B.P. Big. 22 action
is only the civil liability of the signatory, and not that of the corporation itself,
the distinctness of the cause of action against the signatory and that against
the corporation is rendered beyond dispute. It follows that the actions
involving these liabilities should be adjudged according to their respective
standards and merits. In the . B. P. Big. 22 case, what the trial court should
determine is whether or not the signatory had signed the check with
knowledge of the insufficiency of funds or credit in the bank account, while in
the civil case the trial court should ascertain whether or not the obligation
itself is valid and demandable. The litigation
of both questions could, in theory, proceed independently and
simultaneously without being ultimately conclusive on one or the other.

REPUBLIC OF THE PHILIPPINES

METROPOLITAN TRIAL COURT
NATIONAL JUDICIAL CAPITAL REGION
BRANCH NO.____, MANILA CITY

BEN QUE
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Prodigals Notes
Memorandum
Complainant

-versus-

CriminalCase No. 67-12345

For five (5) counts of violation
of
Batas Pambansa
Blg. 22 (B.P.22)

HENRY CHAO
Accused
x-------------------------------------------x
MEMORANDUM FOR THE ACCUSED
Accused, through counsel, respectfully submit this memorandum to
with;
PREFATORY STATEMENT
Every person must, in exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good
faith. (Art. 19, Civil Code).

STATEMENT OF THE CASE

This case refers to a criminal action for violation of Batas Pambansa
Blg. 22 (B.P.22) filed by Mr. Ben Que (Complainant) for the five checks issued
by Mr. Henry Chao (Accused) dishonored by Alloy Bank, for the reason of
account closed. The Accused for its defense claims that the money
barrowed is for the payment of the stocks of Atlas Parts (company), which is
civil liability of the company itself and not by the Accused, under the
principle of separate personality of the corporation.
Both parties have presented their evidences and witnesses. The case is
now submitted for decision.
STATEMENT OF THE FACTS

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Memorandum
On June 1, 2011, the Complainant lent money to the Accused, Manager
of Atlas Parts, the amount of P 50,000.00, with 5% monthly interest, payable
in five (5) equal monthly instalment of P 12,500.00, for the payment of their
stocks. As per agreement, the Accused issued and delivered to the
Complainant five (5) Checks to wit; Check No. 001 dated July 1, 2011; Check
No. 002 dated August 1, 2011 in the same amount; Check No. 003 dated
September 2, 2011; Check No. 004 dated October 1, 2011; and Check No.
005 dated November 1, 2011; all are in the same amount of P 12, 500.00, at
the residence of the Complainant in Mandaluyong City. The checks was
deposited by the Complainant on their respective dates on its account at
BDO Bank, Manila City Hall Branch Manila, however all the checks were
dishonored by the drawee, Alloy Bank, for the reason of Account Closed.
That was owned by the Atlas Parts.
On January 2, 2012, The Complainant consulted a lawyer and advised
him to send a formal demand letter by registered mail to the office of the
Accused, giving him to make good his promise.
However, on the middle of June 2011, the Accused resigned as
manager of Atlas Parts, thus, he was not aware of the dishonor as well the
demand letter sent by the Complainant.
THE STATEMENT OF ISSUE
The issue on this case, as determined by the Honorable Court in its
pre-trial order is WHETHER OR NOT THE ACCUSED IS GUILTY UNDER THE LAW
OF BATAS PAMBANSA BILANG 22. (B.P.22)
ARGUMENTS AND DISCUSSION

I. THERE
WAS
DEMAND
MADE
COMPLAINANT

NO
VALID
BY
THE

As it can be gleaned from the records that the Complainant made a

demand thru registered mail to the Accused. However, the Complainant does
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Prodigals Notes
Memorandum
not sure or assumed that the demand letter sent to the Accused was
received by the latter, under the Rules of Court, it is the fundamental
principle that, there should be a proof of service which should be made by
such affidavit and registry receipt issued by the mailing officer as well the
registry return card. This principle was enlightenment in the case of Alferez
vs. People, G.R. No. 182301, January 31, 2011, 641 SCRA 116 states that;
XXX Receipts for registered letters and return receipts do not
themselves prove receipt; they must be properly authenticated
to serve as proof of receipt of the letter, claimed to be a notice of
dishonor.XXX The prosecution must also prove actual receipt of
the said notice, because the fact of service provided for in the
law is reckoned from receipt of such notice of dishonor by the
drawee of the check.
Furthermore, in the same case it states that the consistent rule is that
penal statutes have to be construed strictly against the State and liberally
in favor of the Accused. Under the facts, there is insufficient proof that the
Accused received the notice of dishonored as well the demand letter, the
presumption that the Accused had a knowledge Account Closed cannot arise.
Thus, the Complainant failed to inform the Accused about the
dishonored checks which deprive the Accused his right of due process for
there was no valid notice and demand made by the Complainant against the
Accused.
II. THE CHECKS WAS ISSUED BY
THE ACCUSED IN HIS CAPACITY
AS SIGNATORY IN BEHALF OF
THE ATLAS PARTS.
Granting arguendo that the accused issued the checks, the facts
clearly shows that the Accused as his capacity as the manager of Atlas Parts
(company), he borrowed money to the Complainant for the payment of the
company stocks, it also shows that being a manager he is authorized
signatory in every transactions made by the company. In the Case of Gosiaco
vs. Ching, G.R. No. 173807, April 16, 2009, 585 SCRA 471, the Supreme
Court Held that:
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Prodigals Notes
Memorandum
B.P.22 imposes a distinct civil liability of the check
which is distinct from the civil liability of the corporation for
the amount represented from the check. The civil liability
attaching to the signatory arises from wrongful act of
signing the check despite the insufficiency of finds in the
account, while the civil liability attaching to the corporation
is itself the very obligation covered by the check for its
execution.
Under the principle of separate personality of the corporation to its
officer and stockholders, the facts of this case clearly shows that the act
made by the Accused was for the benefit of the Company itself, thus, as the
ruling of the Supreme Court in the case of Gosiaco vs. Ching, the prosecution
failed to established the fact that Accused use the barrowed money to his
own benefit and also the prosecution also failed to established that the
Accused wrongfully signed the checks despite the knowledge of insufficiency
of funds in the account.
Therefore, from the premises, the Accused does not issued a worthless
checks but he issued the checks to his capacity as signatory because of his
position of being manager to the Company, which shows that the
Complainant does not have any cause of action against the Accused civilly or
criminally, particularly, violation of B.P.22
III. THE ACTION WAS FILED ON
THE WRONG VENUE
In the case of Isip vs. People, G. R. No. 170298, June 26, 2007, 525
SCRA 735 the Supreme Court pronounce that:
The place where the crime was committed
determines not only the venue of the action but is an
essential element of jurisdiction. It is a fundamental rule
that for jurisdiction to be acquired by courts in criminal
cases the offense should have been committed or any one
of its essential ingredients should have taken place within
the territorial jurisdiction of the court. Territorial jurisdiction
in criminal cases is the territory where the court has
jurisdiction to take cognizance or to try the offense
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Prodigals Notes
Memorandum
allegedly committed therein by the accused. Thus, it cannot
take jurisdiction over a person charged with an offense
allegedly committed outside of that limited territory.
The concept of venue of actions in criminal cases, unlike in civil cases,
is jurisdictional. Under the facts of the case the transaction happened on the
residence of the Complainant which is the City of Mandaluyong, it is a
fundamental principle under the Rules of Court that jurisdiction of a court
over the criminal case is determined by the allegations in the complaint or
information. And once it is so shown, the court may validly take cognizance
of the case. However, if the evidence adduced during the trial shows that the
offense was committed somewhere else, the court should dismiss the action
for want of jurisdiction. The facts disclosed that the information was filed in
the City of Manila
Thus, the case against the Accused should be dismissed on the ground
of want of jurisdiction over the subject matter.

PRAYER
WHEREFORE, it is respectfully prayed that this Honorable Court will
decide in favor of the Accused and against Complainant, the following reliefs:
1. Dismiss the Case against the Accused on the ground of lack of Cause
of Action and want of Jurisdiction;
2. Moral damages for the mental anguish, fright and serious anxiety
experienced by the Accused;
3. Exemplary or corrective damages;
4. Cost of litigation
Other measures of reliefs that are just and equitable under the
premises are likewise prayed for.
Manila City, Philippines. November 27, 2011.
ATTY. X
Counsel for Accused
PTR No. 54815, 1/17/2011
IBP No. 589546
Roll of Attorneys No. 8147
MCLE Compliance No. II-843
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Prodigals Notes
Memorandum
The Branch Clerk of Court
RTC, Branch__
Manila City
Greetings:
Please submit
consideration.

the

foregoing

Memorandum

for

the

Courts

Copy furnished:
ATTY Y
Counsel for Complainant
EXPLANATION
In view of time and manpower restrictions (constrained), the above
Memorandum was served via registered mail as personal service could not
be availed of without causing undue hardship to plaintiff.
(Sgd.) ATTY. X
Counsel for Accused

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