CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule
13)
G.R. No. L-45828 June 1, 1992
DIRECTOR OF LANDS, petitioner, vs. THE HONORABLE COURT OF
APPEALS, SILVESTRE MANLAPAZ and NATIVIDAD
PIZARRO, respondents.
This is a petition for review on certiorari seeking the reversal of the
Decision 1 rendered by respondent Court of Appeals in CA-G.R. No.
56788-B, dated March 7, 1977, affirming the Decision 2 of the then Court
of First Instance of Bataan, dated April 6, 1974, in Land Registration
Case No. N-235, adjudicating in favor of herein private respondents the
subject two (2) parcels of land.
The undisputed facts of the case are as follows:
On January 29, 1973, spouses Silvestre Manlapaz and Natividad Pizarro
(herein private respondents) filed an application before the Court of First
Instance of Bataan, seeking the registration and confirmation of titles to
two (2) parcels of land, under Act 496 in relation to Sec. 48 (B) of C.A.
No. 141, designated as Lot No. 2855 and Lot No. 2856. The parcels of
land applied for are portions of Lot 2749 of Orion Cadastre covered by
plans Sgs-4600-D and Sgs-4601-D, situated at Barrio Damulog,
Municipality of Orion, Province of Bataan, containing an area of 49,954
sq. meters and 54,052 sq. meters, respectively. 3
Prior to the initial hearing of the case, the trial court in its Order dated
April 5, 1973, directed the Land Registration Commissioner to submit his
report on whether or not the parcels of land in question had been issued
patents or whether the same are subject of pending decrees. 4 In
compliance with this directive, Acting Geodetic Engineer (Chief Surveyor)
Amado Masicampo, on behalf of the Commissioner of Land Registration,
filed a manifestation dated April 26, 1973 stating that the subject parcels
of land described on Plans Sgs-4600-D and Sgs-4601-D are portions of
Lot 2749, Cad. 241, Orion Cadastre and that the same have been the
subject of registration proceedings in Court Cadastral Case No. 15, LRC
(GLRO) Cadastral Record No. 1021 wherein a decision has been
rendered although there is no existing record of the same on file because
it was among those records lost or destroyed due to the ravages of the
last global war. The record also disclosed that Plans Sgs-4600-D and
Sgs-4601-D, when plotted in the Municipal Index Map through their
respective lines conflict with Lot 1, Sgs-2806 which has been issued
Sales Patent No. 5819. 5
The Director of Lands seasonably filed an opposition on the ground that
neither the applicants nor their predecessor-in-interest possess sufficient
title to acquire ownership in fee simple of the parcels of land applied for;
that they have not been in open, continuous, exclusive and notorious
possession and occupation of the land in question for at least thirthy (30)
years immediately preceding the filing of the present application; and that
these parcels of land are portions of the public domain belonging to the
Republic of the Philippines, and therefore, not subject to appropriation. 6
At the hearing on August 21, 1973, the Court issued an order of special
default with the exception of the Director of Lands. 7 As prayed for by
private respondents' counsel, the parties were allowed to present
evidence before the Clerk of Court who was commissioned to receive the
same and to submit his findings after the termination of the reception of
evidence. 8
In order to establish thirty (30) years of open and continuous possession
over the subject property, private respondents presented Crisanto
Angeles and Monico Balila, Crisanto Angeles claimed that he first took
possession of these two (2) parcels of land in the year 1931 while he was
still twenty (20) years old. He cleared the land and planted different kinds
of fruit-bearing trees such as mango, star apple and bananas, as well as
seasonal crops thereon. He likewise converted 5,000 sq. meters thereof
into a ricefield which was enlarged to one hectare. 9 These parcels of
land were declared for taxation purposes only in 1966. 10 Meanwhile, in
the year 1938, he sold the parcel containing an area of about five (5)
hectares to Pablito Punay, who immediately took possession of the
same, cultivated it and introduced several improvements thereon. 11 In
September 1972, after he had already cleared the whole tract of the
second parcel of land, he sold the same to private respondents. 12 Pablito
Punay also sold the first parcel of land he acquired from Crisanto to
them. 13Angeles further stated that he knew all the owners of the
adjoining parcels of land but, on cross-examination, was unable to
remember their names. 14 Witness Monico Balila testified that he is the
owner of the parcel of land adjoining private respondent's property. He
had seen Angeles clear the same and plant different fruit trees. On cross-
examination, he said that he was twelve (12) years old when he first lived
at Bilolo, Orion, Bataan in 1938. His land holding was five kilometers
away from private respondents' land and it was his uncle who was then in
possession of the land he presently owns. 15
Private respondent Silvestre Manlapaz also testified that upon their
acquisition of the two (2) parcels of land designated as Lots 2855 and
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2856, they immediately took possession of the same, planted coconuts,
camotes and other vegetables and expanded the portion planted to
palay. Some portions were converted into two (2) residential lots, one
with an area of 276 sq. meters and the other, 105 sq. meters. They then
declared those properties in their names and paid the corresponding land
taxes. 16
The Director of Lands, on the other hand, did not present any evidence to
support his opposition.
On April 6, 1974, the lower court rendered its decision, the dispositive
part of which reads as follows:
WHEREFORE, the title to two parcels of land Identified and
shown in plans Sgs-4600-D and 4601-D, situated at Barrio
Damulog, Municipality of Orion, Province of Bataan, containing an
area of 49,954 square meters and 54,052 square meters,
respectively, is ordered confirmed in the name of the spouses
Silvestre Manlapaz and Natividad Pizarro, both of legal age,
Filipino citizens and residents of Pilar, Bataan.
After this decision shall have become final, let an order issue for a
decree of registration in favor of the applicants.SO ORDERED. 17
From said judgment, the Director of Lands interposed an appeal to the
Court of Appeals which promulgated its decision 18 on May 7, 1977,
affirming the decision of the lower court. It found that the defense of res
judicata was belatedly raised on appeal. The omission to include the
same in the answer as one of the affirmative defenses constitutes a
waiver of said defense. The manifestation of Mr. Masicampo stating that
the two (2) parcels of land have been the subject of registration
proceedings was not enough to support res judicata. It concluded that the
30-year period of continuous possession of private respondents'
predecessors-in-interest has been satisfactorily proved, the Director of
Lands not having presented any evidence to contradict, impugn or
impeach the facts established by private respondents.
Hence, this petition which assigns the following errors:
IRespondent Court erred in ruling that petitioner failed to raise the
defense of res judicata in the trial court and, hence, waived the
same.
IIRespondent Court erred in ruling that petitioner failed to
prove res judicata by competent evidence.
IIIRespondent Court erred in ruling that after the cadastral
proceedings and the declaration of the subject parcels of land as
public land therein, the same may be the subject of judicial
confirmation of imperfect title or claim based on adverse and
continuous possession of at least thirty (30) years, citing the case
of Mindanao v. Director of Lands, et al., G.R. No. L-19535, July
10, 1967. 19
The Court of Appeals committed no error in disregarding res judicata. In
the case of Director of Lands v. Court of Appeals, 20 this Court had
addressed a similar contention in this manner:
WE find no legal basis to uphold the foregoing contentions of
Petitioner. It is clear from the evidence on record that in the
proceedings had before the Court of First Instance of Batangas,
acting as a land registration court, the oppositor Director of
Lands. petitioner herein, did not interpose any objection nor set
up the defense of res judicata with respect to the lots in question.
Such failure on the part of oppositor Director of Lands. to OUR
mind, is a procedural infirmity which cannot be cured on
appeal. Section 2, Rule 9, Revised Rules of Court of 1964, in no
uncertain language, provides that:
SEC. 2. Defenses and obligations not pleaded deemed
waived. — Defenses and objections not pleaded either in
a motion to dismiss or in the answer are deemed
waived; . . .
All defenses therefore not interposed in a motion to dismiss or in
an answer are deemed waived. (Santiago, et al. v. Ramirez, et
al.; L-15237, May 31, 1963, 8 SCRA 157, 162; Torrada v.
Bonearos, L-39832, January 30, 1976, 69 SCRA 247, 253).
Thus, the defense of res adjudicata when not set up either in a
motion to dismiss or in answer, is deemed waived. It cannot be
pleaded for the first time at the trial or on appeal. (Phil. Coal
Miners' Union v. CEPOC, et al., L-19007, April 30, 1964, 10
SCRA 784, 789). (Emphasis supplied)
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Furthermore, petitioner advanced the view that it is the intendment of the
law that a person who fails to prove his title to a parcel of land which is
the object of cadastral proceedings or one who does not file his claim
therein is forever barred from doing so in a subsequent proceeding.
Judgment in a cadastral proceeding which is a proceeding
in rem constitutes res judicata even against a person who did not take
part in the proceedings as claimant.
We disagree. The above-cited case likewise settled this contention. It
said:
But granting for a moment, that the defenses of res
adjudicata was properly raised by petitioner herein, WE still hold
that, factually, there is no prior final judgment all to speak of. The
decision in Cadastral Case No. 41 does not constitute a bar to the
application of respondent Manuela Pastor; because a decision in
a cadastral proceeding declaring a lot public land is not the final
decree contemplated in Section 38 and 40 of the Land
Registration Act.
A Judicial declaration that a parcel of land is public, does not
preclude even the same applicant from subsequently seeking a
judicial confirmation of his title to the same land, provided he
thereafter complies with the provisions. of Section 48 of
Commonwealth Act No. 141, as amended, and as long as said
public land remains alienable and disposable (now section 3 and
4, PD No. 1073,) 21 (Emphasis supplied)
As a rule, the Court respects the factual findings of the Court of Appeals,
imparting to them a certain measure of finality. However, the rule is not
without clearly defined exceptions, among which are: ". . . (2) the
inference made is manifestly mistaken; . . . (4) the judgment is based on
misapprehension of facts; . . . and (9) when the finding of fact of the
Court of Appeals is premised on the absence of evidence and is
contradicted by evidence on record." 22
It must be emphasized that the burden is on applicant to prove his
positive averments and not for the government or the private oppositors
to establish a negative proposition insofar as the applicants' specific lots
are concerned. 23 Applying this rule to the instant case, the conclusions
reached by the court a quo and respondent Court of Appeals that the
private respondents through their predecessors-in-interest have been in
open, continuous, exclusive and notorious possession of the subject land
under a bonafide claim of ownership are not persuasive for the following
reasons.
First, the testimony of Crisanto Angeles as to his possession and
ownership of the two (2) parcels of land fails to inspire belief. He claimed
that he was in possession of the land way back in 1930. Yet he declared
the same for taxation purposes only in 1966. Although tax receipts are
not incontrovertible evidence of ownership, they constitute at least proof
that the holder had a claim of title over the property. 24 He stated that he
knew the owners of the adjoining properties, but during the cross-
examination, he was unable to give their names. Nor was he able to
explain how he came into possession of the parcel of land and there is no
showing of any title, perfect or imperfect, granted by the state to him or
his predecessors.
Second, the attempt of Monico Balila to corroborate Angeles' length of
possession over the subject property is less than credible. Having been
an adjoining owner only in 1953 by his own admission, he could not have
known how long Crisanto Angeles owned and possessed the parcels of
land.
Third, Pablito Punay, the second predecessor-in-interest of Lot No. 2855
of the private respondents was not made to testify. No reason was
disclosed for his failure to appear before the court.
Lastly, the documents introduced by the applicants merely evidenced the
fact that the parcels of land applied for were alienable and disposable
lands of the public domain, 25 but no document has been presented that
would clearly establish the length of time of the possession of their
predecessors-in-interest. That the private respondents have paid the
corresponding taxes since 1972 26 when they possessed the same is of
no moment because what is vital to consider is their predecessors-in-
interest's compliance with the 30-year period.
Undoubtedly, the private respondents have failed to submit convincing
proof of their predecessors-in-interest's actual, peaceful and adverse
possession in the concept of owner of the lots in question during the
period required, by law. This is of utmost significance in view of the basic
presumption that lands of whatever classification belong to the State and
evidence of a land grant must be "well-nigh incontrovertible." 27
WHEREFORE, premises considered, the May 7, 1977 decision of the
Court of Appeals is hereby REVERSED and SET ASIDE, and judgment
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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
is rendered DISMISSING the application for registration and confirmation
of titles of Lots No. 2855 and 2656. No pronouncement as to costs. SO
ORDERED.

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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 73039 October 9, 1987
PERFECTA CAVILI, PRIMITIVO CAVILI and QUIRINO
CAVILI, petitioners, vs. HON. TEODORO N. FLORENDO, Presiding
Judge, Branch XXXVI, Regional Trial Court of Negros Oriental, 7th
Judicial Region, CLARITA CAVILI, ULPIANO CAVILI, ESTRELLA
CAVILI, PLACIDA CAVILI, ET AL., respondents.
This is a petition to review and set aside two orders of the then Court of
First Instance of Negros Oriental, namely: (1) the order dated October 11,
1985, disqualifying Perfects Cavili dela Cruz as a witness in Civil Case
No. 6880 entitled "Clarita Cavili, et al. v. Perfecta Cavili, Quirino Cavili,
and Primitivo Cavili" and (2) the order dated November 26, 1985, refusing
to reconsider the previous orders of disqualification and resetting the
reception of evidence for the defendants to December 19 and 20, 1985
with a warning that should defendants' witnesses fail to appear in court
on said date, they will be deemed to have waived their right to be
witnesses in this case.
The private respondents filed Civil Case No. 6880 with the Court of First
Instance of Negros Oriental against herein petitioners for Partition,
Accounting, and Damages. After the case was raffled to Branch I
presided over by Judge Augusto S. Villarin, summons was issued to the
three petitioners, all at Bayawan Negros Oriental which was the address
indicated in the complaint.
After trying to effect service, the process server went back to the court
with the following return of service to Quirino and Primitivo Cavili not
contacted, according to Perfecta Cavili, subject persons is (sic) staying in
Kabangkalan, Negros Occidental."
Meanwhile, Atty. Jose P. Alamino filed a motion for extension to answer
in behalf of the defendants, manifesting the representation of his client
Perfecta Cavili that she will inform her brothers Primitivo and Quirino
about the case.
The defendants, however, failed to file their answer within the request
period and upon motion of the plaintiffs, the defendants were declared in
default, and on October 5, 1979, a judgment by default was promulgated
by Judge Augusto S. Villarin.
The records of the case, however, show that a Manifestation was filed by
Atty. Jose P. Alamino informing the court that since he never met
Primitivo and Quirino Cavili, who are residents of another province, he
desisted from further appearing in the case in their behalf.
On November 7, 1979, Atty. Jose P. Alamillo received a copy of the
decision. On December 7, 1979, he filed a motion for new trial in behalf
of the defendants on grounds of lack of jurisdiction and, with a
meritorious defense that the properties sought to be partitioned have
already been the subject of a written partition agreement between the
direct heirs of the late Bernardo Cavili who are the predecessors of the
parties in this case. In/an order dated April 23, 1980, the court granted
said motion.
The plaintiffs filed a motion for reconsideration of the order granting new
trial and at the same time prayed that a writ of execution be issued but
only in so far as defendant Perfecta Cavili was concerned.
In an order dated July 21, 1981, Judge Cipriano Vamenta of Branch III of
the Court of First Instance of Negros Oriental to whom the case had been
assigned after a re-raffle, set aside the order of April 23, 1980 and
directed the execution of the October 5, 1979 decision without
qualification ruling that the petitioners' remedy should have been appeal
rather than new trial.
Their motion for reconsideration having been denied on August 11, 1981,
the defendants, now petitioners, brought the case to this Court through a
petition for certiorari, G.R. No. 57771, entitled "Quirino Cavili, et al.,
Petitioners vs. Hon. Cipriano Vamenta, et al., Respondents "
On May 31, 1982, this Court rendered a decision, the dispositive portion
of which reads:
WHEREFORE, Our resolution dismissing the petition is
hereby reconsidered; the petition is granted; and the
order dated July 21, 1981, is set aside while that of April
23, 1980, is revived. (No special pronouncement as to
costs. Rollo p. 21)
Thereafter, the pre-trial and trial of Civil Case No. 6880 was scheduled
on October 9, 10, and 11, 1985 before Branch XXXVI of the Regional
Trial Court, presided by respondent Judge Teodoro N. Florendo. The
defendants, (now petitioners), presented Perfects Cavili dela Cruz as
their first witness. The respondents, through counsel moved for her
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disqualification as a witness on the ground that having been declared in
default, Perfects Cavili has lost her standing in court and she cannot be
allowed to participate in all premise the even as a witness. The court,
through the respondent judge, sustained the respondents' contention and
disqualified her from testifying.
The petitioners, through counsel, moved for a reconsideration of the
ruling.
On November 26, 1985, the lower court issued an order denying
reconsideration of its Order dated October 11, 1985 disqualifying
Perfecta Cavili dela Cruz as a witness in Civil Case No. 6880.
Hence, this petition.
Petitioner Perfecta Cavili's competence as a witness is put in issue by the
private respondents.
Section 18, Rule 130 of the Revised Rules of Court states who are
qualified to be witnesses. It provides:
Section 18. Witnesses; their qualifications. — Except as provided in the
next succeeding section, all persons who, having organs of sense, can
perceive, and perceiving, can make known their perception to others,
may be witnesses. Neither parties nor other persons interested in the
outcome of a case shall be excluded; nor those who have been convicted
of crime; nor any person on account of his opinion on matters of religious
belief.
The generosity with which the Rule allows people to testify is apparent.
Interest in the outcome of a case, conviction of a crime unless otherwise
provided by law, and religious belief are not grounds for disqualification.
Sections 19 and 20 of Rule 130 provide for specific disqualifications.
Section 19 disqualifies those who are mentally incapacitated and children
whose tender age or immaturity renders them incapable of being
witnesses. Section 20 provides for disqualification based on conflicts of
interest or on relationship. Section 21 provides for disqualifications based
on privileged communications. Section 15 of Rule 132 may not be a rule
on disqualification of witnesses but it states the grounds when a witness
may be impeached by the party against whom he was called.
There is no provision of the Rules disqualifying parties declared in default
from taking the witness stand for non-disqualified parties. The law does
not provide default as an exception. The specific enumeration of
disqualified witnesses excludes the operation of causes of disability other
than those mentioned in the Rules. It is a maxim of recognized utility and
merit in the construction of statutes that an express exception,
exemption, or saving clause excludes other exceptions. (In Re Estate of
Enriquez, 29 Phil. 167) As a general rule, where there are express
exceptions these comprise the only limitations on the operation of a
statute and no other exception will be implied. (Sutherland on Statutory
Construction, Fourth Edition, Vol. 2A, p. 90) The Rules should not be
interpreted to include an exception not embodied therein.
The respondents, however, cite Section 2, Rule 18 on Defaults, to wit:
Section 2. Effect of order of default. — Except as provided in section 9 of
Rule 13, a party declared in default shall not be entitled to notice of
subsequent proceedings nor to take part in the trial.
They advance the argument that to allow Perfecta Cavili to stand as
witness would be to permit a party in default "to take part in the trial."
An explanation of the Rule is in order.
Loss of standing in court is the consequence of an order of default. Thus,
a party declared in default is considered out of court and cannot appear
therein, adduce evidence, and be heard and for that reason he is not
entitled to notice. (Rule 18, Rules of Court; Lim Toco v. Go Fay, 80 Phil.
166) However, "loss of pending" must be understood to mean only the
forfeiture of one's rights as a party litigant, contestant or legal adversary.
A party in default loses his right to present his defense, control the
proceedings, and examine or cross-examine witnesses. He has no right
to expect that his pleadings would be acted upon by the court nor may he
object to or refute evidence or motions filed against him. There is nothing
in the rule, however, which contemplates a disqualification to be a
witness or a opponent in a case. Default does not make him an
incompetent.
As opposed to a party litigant, a witness is merely a beholder, a spectator
or onlooker, called upon to testify to what he has seen, heard, or
observed. As such, he takes no active part in the contest of rights
between the parties. Cast in the cited role of witness, a party in default
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cannot be considered as " a part in the trial." He remains suffering the
effects of an order of default.

A party in default may thus be cited as a witness by his co-defendants

who have the standing and the right to present evidence which the former
may provide. The incidental benefit giving the party in default the
opportunity to present evidence which may eventually redound to his
advantage or bring about a desired result, through his co-defendants, is
of minor consequence.

Of greater concern or importance in allowing the presence of Perfecta

Cavili as a witness in the case at bar, is the preservation of the right of
petitioners Quirino and Primitivo Cavili to secure the attendance of
witnesses and the production of evidence in their behalf. To reject
Perfects Cavili's presentation of testimonial evidence would be to treat
Primitivo and Quirino, as if they too were in default. There is no reason
why the latter should also be made to bear the consequences of
Perfecta's omission. Moreover, we cannot deprive Quirino and Primitivo
of the only instrument of proof available to them, as Perfecta alone has
been in possession and administration of the claim.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED.

The order of the respondent court disqualifying. Perfects Cavili dela Cruz
as a witness in Civil Case No. 6880 is hereby SET ASIDE. The case is
remanded to the court a quo for Wither proceedings. The temporary
restraining order issued on January 6, 1986 is LIFTED.SO ORDERED.

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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. L-53880 March 17, 1994
ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C.
PACETE, EVELINA C. PACETE and EDUARDO C.
PACETE, petitioners, vs. HON. GLICERIO V. CARRIAGA, JR. and
CONCEPCION (CONCHITA) ALANIS PACETE, respondents.
The issue in this petition for certiorari is whether or not the Court of First
Instance (now Regional Trial Court) of Cotabato, Branch I, in Cotabato
City, gravely abused its discretion in denying petitioners' motion for
extension of time to file their answer in Civil Case No. 2518,
in declaring petitioners in default and in rendering its decision of 17
March 1980 which, among other things, decreed the legal separation of
petitioner Enrico L. Pacete and private respondent Concepcion Alanis
and held to be null and void ab initio the marriage of Enrico L. Pacete to
Clarita de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a
complaint for the declaration of nullity of the marriage between her
erstwhile husband Enrico L. Pacete and one Clarita de la Concepcion, as
well as for legal separation (between Alanis and Pacete), accounting and
separation of property. In her complaint, she averred that she was
married to Pacete on 30 April 1938 before the Justice of the Peace of
Cotabato, Cotabato; that they had a child named Consuelo who was born
on 11 March 1943; that Pacete subsequently contracted (in 1948) a
second marriage with Clarita de la Concepcion in Kidapawan, North
Cotabato; that she learned of such marriage only on 01 August 1979; that
during her marriage to Pacete, the latter acquired vast property
consisting of large tracts of land, fishponds and several motor vehicles;
that he fraudulently placed the several pieces of property either in his
name and Clarita or in the names of his children with Clarita and other
"dummies;" that Pacete ignored overtures for an amicable settlement;
and that reconciliation between her and Pacete was impossible since he
evidently preferred to continue living with Clarita.
The defendants were each served with summons on 15 November 1979.
They filed a motion for an extension of twenty (20) days from 30
November 1979 within which to file an answer. The court granted the
motion. On 18 December 1979, appearing through a new counsel, the
defendants filed a second motion for an extension of another thirty (30)
days from 20 December 1979. On 07 January 1980, the lower court
granted the motion but only for twenty (20) days to be counted from 20
December 1979 or until 09 January 1980. The Order of the court was
mailed to defendants' counsel on 11 January 1980. Likely still unaware of
the court order, the defendants, on 05 February 1980, again filed another
motion (dated 18 January 1980) for an extension of "fifteen (15) days
counted from the expiration of the 30-day period previously sought" within
which to file an answer. The following day, or on 06 February 1980, the
court denied this last motion on the ground that it was "filed after the
original period given . . . as first extension had expired." 1
The plaintiff thereupon filed a motion to declare the defendants in default,
which the court forthwith granted. The plaintiff was then directed to
present her evidence. 2 The court received plaintiff's evidence during the
hearings held on 15, 20, 21 and 22 February 1980.
On 17 March 1980, the court 3 promulgated the herein questioned decision,
disposing of the case, thus —
WHEREFORE, order is hereby issued ordering:
1. The issuance of a Decree of Legal Separation of the marriage
between, the plaintiff, Concepcion (Conchita) Alanis Pacete and
the herein defendants, Enrico L. Pacete, in accordance with the
Philippine laws and with consequences, as provided for by our
laws;
2. That the following properties are hereby declared as the
conjugal properties of the partnership of the plaintiff, Concepcion
(Conchita) Alanis Pacete and the defendant, Enrico L. Pacete,
half and half, to wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel
of land situated in the barrio of Langcong, Municipality of
Matanog (previously of Parang), province of Maguindanao
(previously of Cotabato province) with an area of 45,265 square
meters registered in the name of Enrico Pacete, Filipino, of legal
age, married to Conchita Alanis as shown in Exhibits "B" and "B-
1" for the plaintiff.
2. A parcel of land covered by Transfer Certificate of Title No. T-
20442, with an area of 538 square meters and covered by Tax
Declaration No. 2650 (74) in the name of Enrico Pacete, situated
in the Poblacion of Kidapawan, North Cotabato, together with all
its improvements, which parcel of land, as shown by Exhibits "K-
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1" was acquired by way of absolute deed of sale executed by
Amrosio Mondog on January 14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T-
20424 and covered by Tax Declaration No. 803 (74), with an area
of 5.1670 hectares, more or less, as shown by Exhibit "R", the
same was registered in the name of Enrico Pacete and the same
was acquired by Enrico Pacete last February 17, 1967 from
Ambag Ampoy, as shown by Exhibit "R-1", situated at Musan,
Kidapawan, North Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato,
with an area of 5.0567 hectares, covered by Tax Declaration No.
4332 (74), as shown by Exhibit "S", and registered in the name of
Enrico Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T-
9750, situated at Lika, Mlang, North Cotabato, with an area of
4.9841 hectares and the same is covered by Tax Declaration No.
803 (74) and registered in the name of Enrico Pacete and which
land was acquired by Enrico Pacete from Salvador Pacete on
September 24, 1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-
9944, with an area of 9.9566 and also covered by Tax
Declaration No. 8608 (74) and registered in the name of the
defendant Enrico L. Pacete which Enrico L. Pacete acquired from
Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-
1" and which parcel of land is situated at (Kialab), Kiab, Matalam,
North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T-
9227, situated at Kiab, Matalam, North Cotabato, with an area of
12.04339 hectares, more or less, and also covered by Tax
Declaration No. 8607 (74) both in the name of the defendant
Enrico L. Pacete which he acquired last October 15, 1962 from
Minda Bernardino, as shown by Exhibit "M-1".
8. A parcel of land covered by Transfer Certificate of Title No. T-
9228, situated at Kiab, Matalam, North Cotabato, with an area of
10.8908 hectares, registered in the name of Enrico Pacete and
also covered by Tax Declaration No. 5781 (74) in the name of
Enrico Pacete and which parcel of land he acquired last
September 25, 1962 from Conchita dela Torre, as shown by
Exhibit "P-1".
9. A parcel of land covered by Transfer Certificate of Title No. T-
10301, situated at Linao, Matalam, North Cotabato, with an area
of 7.2547 hectares, registered in the name of Enrico Pacete and
also covered by Tax Declaration No. 8716 (74) also in the name
of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo
last July 16, 1963, as shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No.
12728 in the name of the defendant, Enrico L. Pacete, with an
area of 10.9006 hectares, situated at Linao, Matalam, North
Cotabato and is also covered by Tax Declaration No. 5745 (74) in
the name of Enrico Pacete, as shown on Exhibit "O" and which
Enrico Pacete acquired last December 31, 1963 from Eliseo
Pugni, as shown on Exhibit "0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P-
34243 covering Lot No. 1066, issued in the name of Evelina
Pacete, situated at Kiab, Matalam, North Cotabato, and ordering
the registration of the same in the joint name of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal
property, with address on the part of Concepcion (Conchita)
Alanis Pacete at Parang, Maguindanao and on the part of Enrico
L. Pacete at Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original Certificate of Title
No. V-20101, covering Lot No. 77, in the name of Eduardo C.
Pacete, situated at New Lawaan, Mlang, North Cotabato, and the
issuance of a new Transfer Certificate of Title in the joint name of
(half and half) Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete.
5. Ordering likewise the cancellation of Original Certificate of Title
No. P-29890, covering Lot 1068, situated at Kiab, Matalam, North
Cotabato, with an area of 12.1031 hectares, in the name of
Emelda C. Pacete and the issuance of a new Transfer Certificate
of Title in the joint name (half and half) of Concepcion (Conchita)
Alanis Pacete and Enrico L. Pacete; and declaring that the
fishpond situated at Barrio Tumanan, Bislig, Surigao Del Sur, with
an area of 48 hectares and covered by Fishpond Lease
Agreement of Emelda C. Pacete, dated July 29, 1977 be
9
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
cancelled and in lieu thereof, the joint name of Concepcion
(Conchita) Alanis Pacete and her husband, Enrico L. Pacete, be
registered as their joint property, including the 50 hectares
fishpond situated in the same place, Barrio Timanan, Bislig,
Surigao del Sur.
6. Ordering the following motor vehicles to be the joint properties
of the conjugal partnership of Concepcion (Conchita) Alanis
Pacete and Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor
No. T137-20561; Chassis No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor
No. T214-229547; Chassis No. 10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No.
GRW-116188; Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No.
F70MU5-11111; Chassis No. HOCC-GPW-1161188-G; Type,
Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No.
ED300-45758; Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No.
LTC-780-Dv; Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the
sum of P46,950.00 which is the share of the plaintiff in the
unaccounted income of the ricemill and corn sheller for three
years from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the
plaintiff the monetary equipment of 30% of whether the plaintiff
has recovered as attorney's fees;
9. Declaring the subsequent marriage between defendant Enrico
L. Pacete and Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been
dismissed, for, as also pointed out by private respondents, the proper
remedy of petitioners should have instead been either to appeal from the
judgment by default or to file a petition for relief from judgment. 5 This rule,
however, is not inflexible; a petition for certiorari is allowed when the default
order is improperly declared, or even when it is properly declared, where
grave abuse of discretion attended such declaration. 6 In these exceptional
instances, the special civil action of certiorari to declare the nullity of a
judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:
Art. 101. No decree of legal separation shall be promulgated
upon a stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order
the prosecuting attorney to inquire whether or not a collusion
between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take
care that the evidence for the plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil
Code, 8 and it is, in substance, reproduced in Article 60 of the Family Code. 9
Article 101 reflects the public policy on marriages, and it should easily
explain the mandatory tenor of the law. In Brown v. Yambao, 10 the Court
has observed:
The policy of Article 101 of the new Civil Code, calling for the
intervention of the state attorneys in case of uncontested
proceedings for legal separation (and of annulment of marriages,
under Article 88), is to emphasize that marriage is more than a
mere contract; that it is a social institution in which the state is
vitally interested, so that its continuation or interruption can not be
made to depend upon the parties themselves (Civil Code, Article
52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42
Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with
this policy that the inquiry by the Fiscal should be allowed to
focus upon any relevant matter that may indicate whether the
proceedings for separation or annulment are fully justified or not.
10
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
Article 103 of the Civil Code, now Article 58 of the Family Code, further
mandates that an action for legal separation must "in no case be tried
before six months shall have elapsed since the filing of the petition,"
obviously in order to provide the parties a "cooling-off" period. In this
interim, the court should take steps toward getting the parties to
reconcile.

The significance of the above substantive provisions of the law is further

underscored by the inclusion of the following provision in Rule 18 of the
Rules of Court:

Sec. 6. No defaults in actions for annulments of marriage or for

legal separation. — If the defendant in an action for annulment of
marriage or for legal separation fails to answer, the court shall
order the prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no collusion,
to intervene for the State in order to see to it that the evidence
submitted is not fabricated.

The special prescriptions on actions that can put the integrity of marriage
to possible jeopardy are impelled by no less than the State's interest in
the marriage relation and its avowed intention not to leave the matter
within the exclusive domain and the vagaries of the parties to alone
dictate.

It is clear that the petitioner did, in fact, specifically pray for legal
separation. 11 That other remedies, whether principal or incidental, have
likewise been sought in the same action cannot dispense, nor excuse
compliance, with any of the statutory requirements aforequoted.

WHEREFORE, the petition for certiorari is hereby GRANTED and the

proceedings below, including the Decision of 17 March 1980 appealed
from, are NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

11
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 101789. April 28, 1993.
BHAGWAN RAMNANI, petitioner, vs.COURT OF APPEALS, HON.
BUENAVENTURA J. GUERRERO, as Regional Trial Court Judge of
Makati, Metro Manila, Branch 133, SPOUSES CENON G. DIZON and
JULIETTE B. DIZON, respondents.
On March 13, 1990, the spouses Juliette Dizon and Cenen Dizon filed a
complaint in the Regional Trial Court of Makati against the spouses
Josephine Anne Ramnani and Bhagwan Ramnani for the collection of a
sum of money representing the alleged unremitted value of jewelry
received by Josephine from Juliette on consignment basis.
Josephine Ramnani submitted an answer with counterclaim 2 in which
she alleged inter alia:
(a) That although she did receive pieces of jewelry worth P934,347.00
from Dizon, the latter had likewise received from her jewelries worth
P1,671,842,00, including cash and unpaid checks in the amount of
P159,742.50;
(b) That she paid Dizon P50,000; and
(c) That Dizon still owes her P787,495.00;
The trial court set the case for pre-trial on August 14, 1990, 3 but the
Ramnanis did not appear. Consequently, they were declared in default. 4
On September 12, 1990, they filed a motion to lift the order of default, but
this was denied on November 20, 1990.
On October 26, 1990, conformably to the default order, evidence of the
Dizon spouses was received ex parte. On January 28, 1991, Judge
Buenaventura J. Guerrero rendered judgment against the Ramnanis,
holding them liable to the plaintiffs in the amounts of P884,347.00,
representing the principal obligation plus legal interest thereon from
March 13, 1990, until fully paid; P100,000.00 as moral damages; and
P20,000.00 as exemplary damages. They were also required to pay
P50,000.00 as attorney's fees, and the costs of the suit.
The Ramnanis filed a motion for reconsideration on the ground that a
"personal obligation contracted by the wife without the consent of the
husband (was) being made enforceable against the spouses' conjugal
partnership despite absence of any allegation and proof that the same
redounded to the benefit of the family as required by Article 121 of the
Family Code." 7 The motion was denied on April 11, 1991.
On April 29, 1991, Bhagwan Ramnani filed a petition for certiorari before
the respondent Court of Appeals imputing error to the trial court:
(1) in denying the motion to lift order declaring petitioner as in default
despite a clear showing of a meritorious defense;
(2) in not considering petitioner's reason for failure to attend pre-trial as
excusable neglect.
In a decision dated May 10, 1991, the Court of Appeals dismissed the
petition, holding that certiorari was not the proper remedy. 9
The respondent court said:
Petitioners alleged that the respondent court erred and committed grave
abuse of discretion and/or acted in excess of jurisdiction in assigning its
Branch Clerk of Court as the hearing commissioner for the purpose of the
ex parte reception of plaintiffs' evidence (par. 19, Petition); that the
questioned Decision failed to specify whether defendants are solidarily or
only jointly liable (par. 20, Petition); and that petitioner had a valid and
meritorious defense (par. 21, Petition). These are matters that could very
well be ventilated in an ordinary appeal. It should be stressed that the writ
of certiorari issues for the correction of errors of jurisdiction only or grave
abuse of discretion amounting to lack or excess of jurisdiction. It cannot
be legally used for any other purpose (Silverio vs. Court of Appeals, 141
SCRA 527). Mere error of judgment cannot be a proper subject of the
special civil action for certiorari (Zapata vs. NLRC, 175 SCRA 56).
Further, it is a settled rule that certiorari cannot be made a substitute for
an perform the function of an appeal (People vs. Cuaresma, 172 SCRA
415).
The petitioner has come to this Court to challenge that decision. He avers
that the Court of Appeals erred in upholding the refusal of the trial court
to set aside the order of default and the default judgment thereafter
issued.
The basic rule is found in Section 2, Rule 20, viz: "A party who fails to
appear at a pre-trial conference may be non-suited or considered as in
default."
12
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
As held in Lina v. Court of Appeals, 10 the remedies available to a
defendant in the regional trial court who has been declared in default are:
a) The defendant in default may, at any time after discovery thereof and
before judgment, file a motion, under oath, to set aside the order of
default on the ground that his failure to answer was due to fraud,
accident, mistake or excusable neglect, and that he has a meritorious
defense; (Sec. 3, Rule 18)
b) If the judgment has already been rendered when the defendant
discovered the default, but before the same has become final and
executory, he may file a motion for new trial under Section 1(a) of Rule
37;
c) If the defendant discovered the default after the judgment has become
final and executory, he may file a petition for relief under Section 2 of
Rule 38; and
d) He may also appeal from the judgment rendered against him as
contrary to the evidence or to the law, even if no petition to set aside the
order of default has been presented by him. (Sec. 2, Rule 41)
The first remedy was adopted by the petitioner but his motion to lift the
order of default was denied. According to the trial court:
Defendants' non-appearance is inexcusable. It is unbelievable their
former lawyer did not explain to them the mandatory character of their
appearance. Their invocation of the deteriorating health of defendant
Josephine necessitating her trip abroad for appropriate medical
treatment, is unavailing. There is no medical certificate to attest such
illness. Besides, at the time of the hearing of the motion on October 19,
1990, counsel for the defendants admitted that Josephine had not yet
arrived from the States, despite their averment in their motion she would
"only be back late September or early October of this year." This only
indicates her light regard of her duty to appear in court. Moreover, the
other defendant Bhagwan Ramnani did not submit any other plausible
explanation for his absence in the pre-trial.
A satisfactory showing by the movant of the existence of fraud, accident,
mistake or excusable neglect is an indispensable requirement for the
setting aside of a judgment of default or the order of default. After going
over the pleadings of the parties and the decision of the respondent
court, we find that the motion to lift the order of default was properly
denied for non-compliance with this requirement.
The defendants were less than conscientious in defending themselves
and protecting their rights before the trial court. They did not pay proper
attention and respect to its directive. The petitioner has not shown that
his and his wife's failure to attend the pre-trial hearing as required was
due to excusable neglect, much less to fraud, accident or mistake.
The petitioner insists, however, that they had a meritorious defense
which the trial court should not have disregarded. A meritorious defense
is only one of the two conditions. Even if it be assumed for the sake of
argument that the private respondents did owe Josephine Ramnani
P900,000, as alleged in the counterclaim, that circumstance alone is not
sufficient to justify the lifting of the order of default and the default
judgment. The obvious reason is that a meritorious defense must concur
with the satisfactory reason for the non-appearance of the defaulted
party. There is no such reason in this case.
The appropriate remedy is an ordinary appeal under Section 2 of Rule 41
of the Rules of Court providing in part as follows:
A party who has been declared in default may likewise appeal from the
judgment rendered against him as contrary to the evidence or to the law,
even if no petition for relief to set aside the order of default has been
presented by him in accordance with Rule 38.
In questioning the dismissal of its petition by the respondent court, the
petitioner invokes the case of Pioneer Insurance and Surety Corporation
v. Hontanosas, 11 where the Court sustained the challenge to an order of
default in a petition for certiorari rather than in an ordinary appeal, which
was held as not an adequate remedy.
That case is not applicable to the present petition. Certiorari was allowed
in that case because the petitioner was illegally declared in default. The
Court held that, first, the petitioner could not be compelled to attend an
unnecessary second pre-trial after it had indicated at the earlier pre-trial
that there was no possibility of an amicable settlement; second, the pre-
trial was premature because the last pleading had not yet been filed at
the time; and third, there was insufficient notice of the pre-trial to the
petitioner. In the case at bar, no such irregularities in the pre-trial have
been alleged by the petitioner.
13
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
As we held in Pure Foods Corporation v. NLRC: WHEREFORE, the challenged decision is AFFIRMED as above modified,
with costs against the petitioner. It is so ordered.
It must emphatically be reiterated, since so often is it overlooked, that the
special civil action for certiorari is a remedy designed for the correction of
errors of jurisdiction and not errors of judgment. The reason for the rule is
simple. When a court exercises its jurisdiction, an error committed while
so engaged does not deprive it of the jurisdiction being exercised when
the error is committed. If it did, every error committed by a court would
deprive it of its jurisdiction and every erroneous judgment would be a void
judgment. This cannot be allowed. The administration of justice would not
survive such a rule. Consequently, an error of judgment that the court
may commit in the exercise of its jurisdiction is not correctible through the
original civil action of certiorari.

Even on the supposition that certiorari was an appropriate remedy, the

petition would still fail because it has not been clearly shown that the trial
court committed grave abuse of discretion in refusing to set aside the
default order and the default judgment. We have held in many cases,
including Pahilanga v. Luna, 13 that:

It is within the sound discretion of the court to set aside an order of

default and to permit a defendant to file his answer and to be heard on
the merits even after the reglementary period for the filing of the answer
has expired, but it is not error, or an abuse of discretion, on the part of
the court to refuse to set aside its order of default and to refuse to accept
the answer where it finds no justifiable reason for the delay in the filing of
the answer. In motions for reconsideration of an order of default, the
moving party has the burden of showing such diligence as would justify
his being excused from not filing the answer within the reglementary
period as provided by the Rules of Court, otherwise, these guidelines for
an orderly and expeditious procedure would be rendered meaningless.
Unless it is shown clearly that a party has justifiable reason for the delay
the court will not ordinarily exercise its discretion in his favor.

The above doctrine is applicable to the inexcusable neglect of the herein

petitioner and his wife to appear at the pre-trial hearing duly scheduled
and of which they were properly notified.

We must, however, moderate the award of damages by the trial court as

we feel it is rather harsh upon the petitioner. In the exercise of our
discretion, we hereby reduce the moral damages to P20,000.00 and the
attorney's fees to P10,000.00, and disallow the exemplary damages. The
rest of the award is approved.
14
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 75919 May 7, 1987
MANCHESTER DEVELOPMENT CORPORATION, ET
AL., petitioners, vs. COURT OF APPEALS, CITY LAND
DEVELOPMENT CORPORATION, STEPHEN ROXAS, ANDREW
LUISON, GRACE LUISON and JOSE DE MAISIP, respondents.
Acting on the motion for reconsideration of the resolution of the Second
Division of January 28,1987 and another motion to refer the case to and
to be heard in oral argument by the Court En Banc filed by petitioners,
the motion to refer the case to the Court en banc is granted but the
motion to set the case for oral argument is denied.
Petitioners in support of their contention that the filing fee must be
assessed on the basis of the amended complaint cite the case
of Magaspi vs. Ramolete. 1 They contend that the Court of Appeals erred
in that the filing fee should be levied by considering the amount of
damages sought in the original complaint.
The environmental facts of said case differ from the present in that —
1. The Magaspi case was an action for recovery of ownership and
possession of a parcel of land with damages. 2While the present case is an
action for torts and damages and specific performance with prayer for
temporary restraining order, etc. 3
2. In the Magaspi case, the prayer in the complaint seeks not only the
annulment of title of the defendant to the property, the declaration of
ownership and delivery of possession thereof to plaintiffs but also asks
for the payment of actual moral, exemplary damages and attorney's fees
arising therefrom in the amounts specified therein. 4However, in the
present case, the prayer is for the issuance of a writ of preliminary prohibitory
injunction during the pendency of the action against the defendants'
announced forfeiture of the sum of P3 Million paid by the plaintiffs for the
property in question, to attach such property of defendants that maybe
sufficient to satisfy any judgment that maybe rendered, and after hearing, to
order defendants to execute a contract of purchase and sale of the subject
property and annul defendants' illegal forfeiture of the money of plaintiff,
ordering defendants jointly and severally to pay plaintiff actual, compensatory
and exemplary damages as well as 25% of said amounts as maybe proved
during the trial as attorney's fees and declaring the tender of payment of the
purchase price of plaintiff valid and producing the effect of payment and to
make the injunction permanent. The amount of damages sought is not
specified in the prayer although the body of the complaint alleges the total
amount of over P78 Million as damages suffered by plaintiff. 5
3. Upon the filing of the complaint there was an honest difference of
opinion as to the nature of the action in the Magaspi case. The complaint
was considered as primarily an action for recovery of ownership and
possession of a parcel of land. The damages stated were treated as
merely to the main cause of action. Thus, the docket fee of only P60.00
and P10.00 for the sheriff's fee were paid. 6
In the present case there can be no such honest difference of opinion. As
maybe gleaned from the allegations of the complaint as well as the
designation thereof, it is both an action for damages and specific
performance. The docket fee paid upon filing of complaint in the amount
only of P410.00 by considering the action to be merely one for specific
performance where the amount involved is not capable of pecuniary
estimation is obviously erroneous. Although the total amount of damages
sought is not stated in the prayer of the complaint yet it is spelled out in
the body of the complaint totalling in the amount of P78,750,000.00 which
should be the basis of assessment of the filing fee.
4. When this under-re assessment of the filing fee in this case was
brought to the attention of this Court together with similar other cases an
investigation was immediately ordered by the Court. Meanwhile plaintiff
through another counsel with leave of court filed an amended complaint
on September 12, 1985 for the inclusion of Philips Wire and Cable
Corporation as co-plaintiff and by emanating any mention of the amount
of damages in the body of the complaint. The prayer in the original
complaint was maintained. After this Court issued an order on October
15, 1985 ordering the re- assessment of the docket fee in the present
case and other cases that were investigated, on November 12, 1985 the
trial court directed plaintiffs to rectify the amended complaint by stating
the amounts which they are asking for. It was only then that plaintiffs
specified the amount of damages in the body of the complaint in the
reduced amount of P10,000,000.00. 7 Still no amount of damages were
specified in the prayer. Said amended complaint was admitted.
On the other hand, in the Magaspi case, the trial court ordered the
plaintiffs to pay the amount of P3,104.00 as filing fee covering the
damages alleged in the original complaint as it did not consider the
damages to be merely an or incidental to the action for recovery of
ownership and possession of real property. 8 An amended complaint was
filed by plaintiff with leave of court to include the government of the Republic
15
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
as defendant and reducing the amount of damages, and attorney's fees
prayed for to P100,000.00. Said amended complaint was also admitted. 9
In the Magaspi case, the action was considered not only one for recovery
of ownership but also for damages, so that the filing fee for the damages
should be the basis of assessment. Although the payment of the
docketing fee of P60.00 was found to be insufficient, nevertheless, it was
held that since the payment was the result of an "honest difference of
opinion as to the correct amount to be paid as docket fee" the court "had
acquired jurisdiction over the case and the proceedings thereafter had
were proper and regular." 10 Hence, as the amended complaint
superseded the original complaint, the allegations of damages in the
amended complaint should be the basis of the computation of the filing
fee. 11
In the present case no such honest difference of opinion was possible as
the allegations of the complaint, the designation and the prayer show
clearly that it is an action for damages and specific performance. The
docketing fee should be assessed by considering the amount of
damages as alleged in the original complaint.
As reiterated in the Magaspi case the rule is well-settled "that a case is
deemed filed only upon payment of the docket fee regardless of the
actual date of filing in court . 12 Thus, in the present case the trial court
did not acquire jurisdiction over the case by the payment of only P410.00
as docket fee. Neither can the amendment of the complaint thereby vest
jurisdiction upon the Court. 13 For an legal purposes there is no such
original complaint that was duly filed which could be amended.
Consequently, the order admitting the amended complaint and all
subsequent proceedings and actions taken by the trial court are null and
void.
The Court of Appeals therefore, aptly ruled in the present case that the
basis of assessment of the docket fee should be the amount of damages
sought in the original complaint and not in the amended complaint.
The Court cannot close this case without making the observation that it
frowns at the practice of counsel who filed the original complaint in this
case of omitting any specification of the amount of damages in the prayer
although the amount of over P78 million is alleged in the body of the
complaint. This is clearly intended for no other purpose than to evade the
payment of the correct filing fees if not to mislead the docket clerk in the
assessment of the filing fee. This fraudulent practice was compounded
when, even as this Court had taken cognizance of the anomaly and
ordered an investigation, petitioner through another counsel filed an
amended complaint, deleting all mention of the amount of damages being
asked for in the body of the complaint. It was only when in obedience to
the order of this Court of October 18, 1985, the trial court directed that
the amount of damages be specified in the amended complaint, that
petitioners' counsel wrote the damages sought in the much reduced
amount of P10,000,000.00 in the body of the complaint but not in the
prayer thereof. The design to avoid payment of the required docket fee is
obvious.
The Court serves warning that it will take drastic action upon a repetition
of this unethical practice.
To put a stop to this irregularity, henceforth all complaints, petitions,
answers and other similar pleadings should specify the amount of
damages being prayed for not only in the body of the pleading but also in
the prayer, and said damages shall be considered in the assessment of
the filing fees in any case. Any pleading that fails to comply with this
requirement shall not bib accepted nor admitted, or shall otherwise be
expunged from the record.
The Court acquires jurisdiction over any case only upon the payment of
the prescribed docket fee. An amendment of the complaint or similar
pleading will not thereby vest jurisdiction in the Court, much less the
payment of the docket fee based on the amounts sought in the amended
pleading. The ruling in the Magaspi case 14 in so far as it is inconsistent
with this pronouncement is overturned and reversed.
WHEREFORE, the motion for reconsideration is denied for lack of merit.
SO ORDERED.
16
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. Nos. 79937-38 February 13, 1989
SUN INSURANCE OFFICE, LTD., (SIOL), E.B. PHILIPPS and D.J.
WARBY, petitioners, vs. HON. MAXIMIANO C. ASUNCION, Presiding
Judge, Branch 104, Regional Trial Court, Quezon City and MANUEL
CHUA UY PO TIONG, respondents.
Again the Court is asked to resolve the issue of whether or not a court
acquires jurisdiction over a case when the correct and proper docket fee
has not been paid.
On February 28, 1984, petitioner Sun Insurance Office, Ltd. (SIOL for
brevity) filed a complaint with the Regional Trial Court of Makati, Metro
Manila for the consignation of a premium refund on a fire insurance policy
with a prayer for the judicial declaration of its nullity against private
respondent Manuel Uy Po Tiong. Private respondent as declared in
default for failure to file the required answer within the reglementary
period.
On the other hand, on March 28, 1984, private respondent filed a
complaint in the Regional Trial Court of Quezon City for the refund of
premiums and the issuance of a writ of preliminary attachment which was
docketed as Civil Case No. Q-41177, initially against petitioner SIOL, and
thereafter including E.B. Philipps and D.J. Warby as additional
defendants. The complaint sought, among others, the payment of actual,
compensatory, moral, exemplary and liquidated damages, attorney's
fees, expenses of litigation and costs of the suit. Although the prayer in
the complaint did not quantify the amount of damages sought said
amount may be inferred from the body of the complaint to be about Fifty
Million Pesos (P50,000,000.00).
Only the amount of P210.00 was paid by private respondent as docket
fee which prompted petitioners' counsel to raise his objection. Said
objection was disregarded by respondent Judge Jose P. Castro who was
then presiding over said case. Upon the order of this Court, the records
of said case together with twenty-two other cases assigned to different
branches of the Regional Trial Court of Quezon City which were under
investigation for under-assessment of docket fees were transmitted to
this Court. The Court thereafter returned the said records to the trial court
with the directive that they be re-raffled to the other judges in Quezon
City, to the exclusion of Judge Castro. Civil Case No. Q-41177 was re-
raffled to Branch 104, a sala which was then vacant.
On October 15, 1985, the Court en banc issued a Resolution in
Administrative Case No. 85-10-8752-RTC directing the judges in said
cases to reassess the docket fees and that in case of deficiency, to order
its payment. The Resolution also requires all clerks of court to issue
certificates of re-assessment of docket fees. All litigants were likewise
required to specify in their pleadings the amount sought to be recovered
in their complaints.
On December 16, 1985, Judge Antonio P. Solano, to whose sala Civil
Case No. Q-41177 was temporarily assigned, issuedan order to the Clerk
of Court instructing him to issue a certificate of assessment of the docket
fee paid by private respondent and, in case of deficiency, to include the
same in said certificate.
On January 7, 1984, to forestall a default, a cautionary answer was filed
by petitioners. On August 30,1984, an amended complaint was filed by
private respondent including the two additional defendants aforestated.
Judge Maximiano C. Asuncion, to whom Civil Case No. Q41177 was
thereafter assigned, after his assumption into office on January 16, 1986,
issued a Supplemental Order requiring the parties in the case to
comment on the Clerk of Court's letter-report signifying her difficulty in
complying with the Resolution of this Court of October 15, 1985 since the
pleadings filed by private respondent did not indicate the exact amount
sought to be recovered. On January 23, 1986, private respondent filed a
"Compliance" and a "Re-Amended Complaint" stating therein a claim of
"not less than Pl0,000,000. 00 as actual compensatory damages" in the
prayer. In the body of the said second amended complaint however,
private respondent alleges actual and compensatory damages and
attorney's fees in the total amount of about P44,601,623.70.
On January 24, 1986, Judge Asuncion issued another Order admitting
the second amended complaint and stating therein that the same
constituted proper compliance with the Resolution of this Court and that a
copy thereof should be furnished the Clerk of Court for the reassessment
of the docket fees. The reassessment by the Clerk of Court based on
private respondent's claim of "not less than P10,000,000.00 as actual and
compensatory damages" amounted to P39,786.00 as docket fee. This
was subsequently paid by private respondent.
Petitioners then filed a petition for certiorari with the Court of Appeals
questioning the said order of Judie Asuncion dated January 24, 1986.
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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
On April 24, 1986, private respondent filed a supplemental complaint
alleging an additional claim of P20,000,000.00 as d.qmages so the total
claim amounts to about P64,601,623.70. On October 16, 1986, or some
seven months after filing the supplemental complaint, the private
respondent paid the additional docket fee of P80,396.00. 1
On August 13, 1987, the Court of Appeals rendered a decision ruling,
among others, as follows:
WHEREFORE, judgment is hereby rendered:
1. Denying due course to the petition in CA-G.R. SP No. 1, 09715
insofar as it seeks annulment of the order
(a) denying petitioners' motion to dismiss the complaint, as
amended, and
(b) granting the writ of preliminary attachment, but giving due
course to the portion thereof questioning the reassessment of the
docketing fee, and requiring the Honorable respondent Court to
reassess the docketing fee to be paid by private respondent on
the basis of the amount of P25,401,707.00. 2
Hence, the instant petition.
During the pendency of this petition and in conformity with the said
judgment of respondent court, private respondent paid the additional
docket fee of P62,432.90 on April 28, 1988. 3
The main thrust of the petition is that the Court of Appeals erred in not
finding that the lower court did not acquire jurisdiction over Civil Case No.
Q-41177 on the ground of nonpayment of the correct and proper docket
fee. Petitioners allege that while it may be true that private respondent
had paid the amount of P182,824.90 as docket fee as herein-above
related, and considering that the total amount sought to be recovered in
the amended and supplemental complaint is P64,601,623.70 the docket
fee that should be paid by private respondent is P257,810.49, more or
less. Not having paid the same, petitioners contend that the complaint
should be dismissed and all incidents arising therefrom should be
annulled. In support of their theory, petitioners cite the latest ruling of the
Court in Manchester Development Corporation vs. CA, 4 as follows:
The Court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee. An amendment of the
complaint or similar pleading will not thereby vest jurisdiction in
the Court, much less the payment of the docket fee based on the
amounts sought in the amended pleading. The ruling in the
Magaspi Case in so far as it is inconsistent with this
pronouncement is overturned and reversed.
On the other hand, private respondent claims that the ruling
in Manchester cannot apply retroactively to Civil Case No. Q41177 for at
the time said civil case was filed in court there was no
such Manchester ruling as yet. Further, private respondent avers that
what is applicable is the ruling of this Court in Magaspi v.
Ramolete, 5 wherein this Court held that the trial court acquired jurisdiction
over the case even if the docket fee paid was insufficient.
The contention that Manchester cannot apply retroactively to this case is
untenable. Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and undetermined at the time
of their passage. Procedural laws are retrospective in that sense and to
that extent. 6
In Lazaro vs. Endencia and Andres, 7 this Court held that the payment of
the full amount of the docket fee is an indispensable step for the perfection of
an appeal. In a forcible entry and detainer case before the justice of the
peace court of Manaoag, Pangasinan, after notice of a judgment dismissing
the case, the plaintiff filed a notice of appeal with said court but he deposited
only P8.00 for the docket fee, instead of P16.00 as required, within the
reglementary period of appeal of five (5) days after receiving notice of
judgment. Plaintiff deposited the additional P8.00 to complete the amount of
the docket fee only fourteen (14) days later. On the basis of these facts, this
court held that the Court of First Instance did notacquire jurisdiction to hear
and determine the appeal as the appeal was not thereby perfected.
In Lee vs. Republic, 8 the petitioner filed a verified declaration of intention to
become a Filipino citizen by sending it through registered mail to the Office of
the Solicitor General in 1953 but the required filing fee was paid only in 1956,
barely 5V2 months prior to the filing of the petition for citizenship. This Court
ruled that the declaration was not filed in accordance with the legal
requirement that such declaration should be filed at least one year before the
filing of the petition for citizenship. Citing Lazaro, this Court concluded that
the filing of petitioner's declaration of intention on October 23, 1953 produced
no legal effect until the required filing fee was paid on May 23, 1956.
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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
In Malimit vs. Degamo, the same principles enunciated in Lazaro and Lee
9 opposition notwithstanding, the amended complaint was admitted by the
were applied. It was an original petition for quo warranto contesting the right
to office of proclaimed candidates which was mailed, addressed to the clerk
of the Court of First Instance, within the one-week period after the
proclamation as provided therefor by law. 10 However, the required docket
fees were paid only after the expiration of said period. Consequently, this
Court held that the date of such payment must be deemed to be the real date
of filing of aforesaid petition and not the date when it was mailed.
Again, in Garica vs, Vasquez, 11 this Court reiterated the rule that the
docket fee must be paid before a court will act on a petition or complaint.
However, we also held that said rule is not applicable when petitioner seeks
the probate of several wills of the same decedent as he is not required to file
a separate action for each will but instead he may have other wills probated
in the same special proceeding then pending before the same court.
Then in Magaspi, 12 this Court reiterated the ruling in Malimit and Lee that a
case is deemed filed only upon payment of the docket fee regardless of the
actual date of its filing in court. Said case involved a complaint for recovery of
ownership and possession of a parcel of land with damages filed in the Court
of First Instance of Cebu. Upon the payment of P60.00 for the docket fee and
P10.00 for the sheriffs fee, the complaint was docketed as Civil Case No. R-
11882. The prayer of the complaint sought that the Transfer Certificate of
Title issued in the name of the defendant be declared as null and void. It was
also prayed that plaintiff be declared as owner thereof to whom the proper
title should be issued, and that defendant be made to pay monthly rentals of
P3,500.00 from June 2, 1948 up to the time the property is delivered to
plaintiff, P500,000.00 as moral damages, attorney's fees in the amount of
P250,000.00, the costs of the action and exemplary damages in the amount
of P500,000.00.
The defendant then filed a motion to compel the plaintiff to pay the
correct amount of the docket fee to which an opposition was filed by the
plaintiff alleging that the action was for the recovery of a parcel of land so
the docket fee must be based on its assessed value and that the amount
of P60.00 was the correct docketing fee. The trial court ordered the
plaintiff to pay P3,104.00 as filing fee.
The plaintiff then filed a motion to admit the amended complaint to
include the Republic as the defendant. In the prayer of the amended
complaint the exemplary damages earlier sought was eliminated. The
amended prayer merely sought moral damages as the court may
determine, attorney's fees of P100,000.00 and the costs of the action.
The defendant filed an opposition to the amended complaint. The
trial court. The trial court reiterated its order for the payment of the
additional docket fee which plaintiff assailed and then challenged before
this Court. Plaintiff alleged that he paid the total docket fee in the amount
of P60.00 and that if he has to pay the additional fee it must be based on
the amended complaint.
The question posed, therefore, was whether or not the plaintiff may be
considered to have filed the case even if the docketing fee paid was not
sufficient. In Magaspi, We reiterated the rule that the case was deemed
filed only upon the payment of the correct amount for the docket fee
regardless of the actual date of the filing of the complaint; that there was
an honest difference of opinion as to the correct amount to be paid as
docket fee in that as the action appears to be one for the recovery of
property the docket fee of P60.00 was correct; and that as the action is
also one, for damages, We upheld the assessment of the additional
docket fee based on the damages alleged in the amended complaint as
against the assessment of the trial court which was based on the
damages alleged in the original complaint.
However, as aforecited, this Court
overturned Magaspi in Manchester. Manchester involves an action for
torts and damages and specific performance with a prayer for the
issuance of a temporary restraining order, etc. The prayer in said case is
for the issuance of a writ of preliminary prohibitory injunction during the
pendency of the action against the defendants' announced forfeiture of
the sum of P3 Million paid by the plaintiffs for the property in question, the
attachment of such property of defendants that may be sufficient to
satisfy any judgment that may be rendered, and, after hearing, the
issuance of an order requiring defendants to execute a contract of
purchase and sale of the subject property and annul defendants' illegal
forfeiture of the money of plaintiff. It was also prayed that the defendants
be made to pay the plaintiff jointly and severally, actual, compensatory
and exemplary damages as well as 25% of said amounts as may be
proved during the trial for attorney's fees. The plaintiff also asked the trial
court to declare the tender of payment of the purchase price of plaintiff
valid and sufficient for purposes of payment, and to make the injunction
permanent. The amount of damages sought is not specified in the prayer
although the body of the complaint alleges the total amount of over P78
Millon allegedly suffered by plaintiff.
Upon the filing of the complaint, the plaintiff paid the amount of only
P410.00 for the docket fee based on the nature of the action for specific
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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
performance where the amount involved is not capable of pecuniary
estimation. However, it was obvious from the allegations of the complaint
as well as its designation that the action was one for damages and
specific performance. Thus, this court held the plaintiff must be assessed
the correct docket fee computed against the amount of damages of about
P78 Million, although the same was not spelled out in the prayer of the
complaint.
Meanwhile, plaintiff through another counsel, with leave of court, filed an
amended complaint on September 12, 1985 by the inclusion of another
co-plaintiff and eliminating any mention of the amount of damages in the
body of the complaint. The prayer in the original complaint was
maintained.
On October 15, 1985, this Court ordered the re-assessment of the docket
fee in the said case and other cases that were investigated. On
November 12, 1985, the trial court directed the plaintiff to rectify the
amended complaint by stating the amounts which they were asking for.
This plaintiff did as instructed. In the body of the complaint the amount of
damages alleged was reduced to P10,000,000.00 but still no amount of
damages was specified in the prayer. Said amended complaint was
admitted.
Applying the principle in Magaspi that "the case is deemed filed only
upon payment of the docket fee regardless of the actual date of filing in
court," this Court held that the trial court did not acquire jurisdiction over
the case by payment of only P410.00 for the docket fee. Neither can the
amendment of the complaint thereby vest jurisdiction upon the Court. For
all legal purposes there was no such original complaint duly filed which
could be amended. Consequently, the order admitting the amended
complaint and all subsequent proceedings and actions taken by the trial
court were declared null and void. 13
The present case, as above discussed, is among the several cases of
under-assessment of docket fee which were investigated by this Court
together with Manchester. The facts and circumstances of this case are
similar to Manchester. In the body of the original complaint, the total
amount of damages sought amounted to about P50 Million. In the prayer,
the amount of damages asked for was not stated. The action was for the
refund of the premium and the issuance of the writ of preliminary
attachment with damages. The amount of only P210.00 was paid for the
docket fee. On January 23, 1986, private respondent filed an amended
complaint wherein in the prayer it is asked that he be awarded no less
than P10,000,000.00 as actual and exemplary damages but in the body
of the complaint the amount of his pecuniary claim is approximately
P44,601,623.70. Said amended complaint was admitted and the private
respondent was reassessed the additional docket fee of P39,786.00
based on his prayer of not less than P10,000,000.00 in damages, which
he paid.
On April 24, 1986, private respondent filed a supplemental complaint
alleging an additional claim of P20,000,000.00 in damages so that his
total claim is approximately P64,601,620.70. On October 16, 1986,
private respondent paid an additional docket fee of P80,396.00. After the
promulgation of the decision of the respondent court on August 31, 1987
wherein private respondent was ordered to be reassessed for additional
docket fee, and during the pendency of this petition, and after the
promulgation of Manchester, on April 28, 1988, private respondent paid
an additional docket fee of P62,132.92. Although private respondent
appears to have paid a total amount of P182,824.90 for the docket fee
considering the total amount of his claim in the amended and
supplemental complaint amounting to about P64,601,620.70, petitioner
insists that private respondent must pay a docket fee of P257,810.49.
The principle in Manchester could very well be applied in the present
case. The pattern and the intent to defraud the government of the docket
fee due it is obvious not only in the filing of the original complaint but also
in the filing of the second amended complaint.
However, in Manchester, petitioner did not pay any additional docket fee
until] the case was decided by this Court on May 7, 1987. Thus,
in Manchester, due to the fraud committed on the government, this Court
held that the court a quo did not acquire jurisdiction over the case and
that the amended complaint could not have been admitted inasmuch as
the original complaint was null and void.
In the present case, a more liberal interpretation of the rules is called for
considering that, unlike Manchester, private respondent demonstrated his
willingness to abide by the rules by paying the additional docket fees as
required. The promulgation of the decision in Manchester must have had
that sobering influence on private respondent who thus paid the
additional docket fee as ordered by the respondent court. It triggered his
change of stance by manifesting his willingness to pay such additional
docket fee as may be ordered.
20
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
Nevertheless, petitioners contend that the docket fee that was paid is still
insufficient considering the total amount of the claim. This is a matter
which the clerk of court of the lower court and/or his duly authorized
docket clerk or clerk in-charge should determine and, thereafter, if any
amount is found due, he must require the private respondent to pay the
same.

Thus, the Court rules as follows:

1. It is not simply the filing of the complaint or appropriate initiatory

pleading, but the payment of the prescribed docket fee, that vests a trial
court with jurisdiction over the subject matter or nature of the action.
Where the filing of the initiatory pleading is not accompanied by payment
of the docket fee, the court may allow payment of the fee within a
reasonable time but in no case beyond the applicable prescriptive or
reglementary period.

2. The same rule applies to permissive counterclaims, third party claims

and similar pleadings, which shall not be considered filed until and unless
the filing fee prescribed therefor is paid. The court may also allow
payment of said fee within a reasonable time but also in no case beyond
its applicable prescriptive or reglementary period.

3. Where the trial court acquires jurisdiction over a claim by the filing of
the appropriate pleading and payment of the prescribed filing fee but,
subsequently, the judgment awards a claim not specified in the pleading,
or if specified the same has been left for determination by the court, the
additional filing fee therefor shall constitute a lien on the judgment. It shall
be the responsibility of the Clerk of Court or his duly authorized deputy to
enforce said lien and assess and collect the additional fee.

WHEREFORE, the petition is DISMISSED for lack of merit. The Clerk of

Court of the court a quo is hereby instructed to reassess and determine
the additional filing fee that should be paid by private respondent
considering the total amount of the claim sought in the original complaint
and the supplemental complaint as may be gleaned from the allegations
and the prayer thereof and to require private respondent to pay the
deficiency, if any, without pronouncement as to costs.

SO ORDERED.

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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. Nos. 88075-77 December 20, 1989
MAXIMO TACAY, PONCIANO PANES and ANTONIA
NOEL, petitioners, vs. REGIONAL TRIAL COURT OF TAGUM Davao
del Norte, Branches 1 and 2, Presided by Hon. Marcial Fernandez
and Hon. Jesus Matas, respectively, PATSITA GAMUTAN, Clerk of
Court, and GODOFREDO PINEDA, respondents.
In the Regional Trial Court at Tagum, Davao del Norte, 1 three(3) actions
for recovery of possession (acciones publicianas 2 ) were separately
instituted by Godofredo Pineda against three (3) defendants, docketed as
follows:
1) vs. Antonia Noel Civil Case No. 2209
2) vs. Ponciano Panes Civil Case No. 2210
3) vs. Maximo Tacay Civil Case No. 2211.
Civil Cases Numbered 2209 and 2211 were raffled to Branch I of the Trial
Court, presided over by Judge Marcial Hernandez. Civil No. 2210 was
assigned to Branch 2, presided over by Judge Jesus Matas.
The complaints 3 all alleged the same essential facts (1) Pineda was the
owner of a parcel of land measuring 790 square meters, his ownership being
evidenced by TCT No. T-46560; (2) the previous owner had allowed the
defendants to occupy portions of the land by mere tolerance; (3) having
himself need to use the property, Pineda had made demands on the
defendants to vacate the property and pay reasonable rentals therefor, but
these demands had been refused; and (4) the last demand had been made
more than a year prior to the commencement of suit. The complaints prayed
for the same reliefs, to wit:
1) that plaintiff be declared owner of the areas occupied by the
defendants;
2) that defendants and their "privies and allies" be ordered to
vacate and deliver the portions of the land usurped by them;
3) that each defendant be ordered to pay:
1 ) P 2,000 as monthly rents from February, 1987;
2 ) Actual damages, as proven;
3 ) Moral and nominal damages as the Honorable Court may fix ;
4) P30,000.00, "as attorney's fees, and representation fees of
P5,000.00 per day of appearance;" 4
and
4) that he (Pineda) be granted such "further relief and remedies
... just and equitable in the premises.
The prayer of each complaint contained a handwritten notation (evidently
made by plaintiff's counsel) reading, "P5,000.00 as and for," immediately
above the typewritten words, "Actual damages, as proven," the intention
apparently being to make the entire phrase read, " P5,000.00 as and for
actual damages as proven. 5
Motions to dismiss were filed in behalf of each of the defendants by common
counsel . 6 Every motion alleged that the Trial Court had not acquired
jurisdiction of the case —
. . . for the reason that the ... complaint violates the mandatory
and clear provision of Circular No. 7 of the ... Supreme Court
dated March 24,1988, by failing to specify all the amounts of
damages which plaintiff is claiming from defendant;" and
. . . for ... failure (of the complaint) to even allege the basic
requirement as to the assessed value of the subject lot in dispute.
Judge Matas denied the motion to dismiss filed in Civil Case No. 2210
but ordered the expunction of the "allegations in paragraph 11 of the ...
complaint regarding moral as well as nominal damages . 7 On motion of
defendant Panes, Judge Matas later ordered the striking out, too, of the
"handwritten amount of 'P5,000. 00 as and for.' including the typewritten
words 'actual damages as proven' ... in sub-paragraph b of paragraph 4 in
the conclusion and prayer of the complaint ..." 8
The motions to dismiss submitted in Civil Cases Numbered 2211 and 2209
were also denied in separate orders promulgated by Judge Marcial
Fernandez. 9 His Order in Case No. 2209 dated March 15, 1989 (a) declared
that since the "action at bar is for Reivindicatoria, Damages and Attorney's
22
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
fees ... (d)efinitely this Court has the exclusive jurisdiction," (b) that the
claims for actual, moral and nominal damages "are only one aspect of the
cause of action," and (c) because of absence of specification of the amounts
claimed as moral, nominal and actual damages, they should be "expunged
from the records."
Ascribing grave abuse of discretion to both Judges Matas and Fernandez
in the rendition of the Orders above described, the defendants in all three
(3) actions have filed with this Court a "Joint Petition" for certiorari,
prohibition and mandamus, with prayer for temporary restraining order
and/or writ of preliminary prohibitory injunction," praying essentially that
said orders be annulled and respondent judges directed to dismiss all the
complaints "without prejudice to private respondent Pineda's re-filing a
similar complaint that complies with Circular No. 7." The joint petition (a)
re-asserted the proposition that because the complaints had failed to
state the amounts being claimed as actual, moral and nominal damages,
the Trial Courts a quo had not acquired jurisdiction over the three (3)
actions in question-indeed, the respondent Clerk of Court should not
have accepted the complaints which initiated said suits, and (b) it was not
proper merely to expunge the claims for damages and allow "the so-
called cause of action for "reivindicatoria" remain for trial" by itself. 10
The joint petition should be, as it is hereby, dismissed.
It should be dismissed for failure to comply with this Court's Circular No.
1-88 (effective January 1, 1989). The copies of the challenged Orders
thereto attached 11 were not certified by the proper Clerk of Court or his duly
authorized representative. Certification was made by the petitioners' counsel,
which is not allowed.
The petition should be dismissed, too, for another equally important
reason. It fails to demonstrate any grave abuse of discretion on the part
of the respondent Judges in rendering the Orders complained of or, for
that matter, the existence of any proper cause for the issuance of the writ
of mandamus. On the contrary, the orders appear to have correctly
applied the law to the admitted facts.
It is true that the complaints do not state the amounts being claimed as
actual, moral and nominal damages. It is also true, however, that the
actions are not basically for the recovery of sums of money. They are
principally for recovery of possession of real property, in the nature of an
accion publiciana. Determinative of the court's jurisdiction in this type of
actions is the nature thereof, not the amount of the damages allegedly
arising from or connected with the issue of title or possession, and
regardless of the value of the property. Quite obviously, an action for
recovery of possession of real property (such as an accion plenaria de
possesion) or the title thereof, 12or for partition or condemnation of, or the
foreclosure of a mortgage on, said real property 13 - in other words, a real
action-may be commenced and prosecuted without an accompanying claim
for actual, moral, nominal or exemplary damages; and such an action would
fall within the exclusive, original jurisdiction of the Regional Trial Court.
Batas Pambansa Bilang 129 provides that Regional Trial Courts shall
exercise exclusive original jurisdiction inter alia over "all civil actions
which involve the title to, or possession of, real property, or any interest
therein, except actions for forcible entry into and unlawful detainer of
lands or buildings, original jurisdiction over which is conferred upon
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts." 14 The rule applies regardless of the value of the real property
involved, whether it be worth more than P20,000.00 or not, infra. The rule
also applies even where the complaint involving realty also prays for an
award of damages; the amount of those damages would be immaterial to the
question of the Court's jurisdiction. The rule is unlike that in other cases e.g.,
actions simply for recovery of money or of personal property, 15 or actions in
admiralty and maritime jurisdiction 16 in which the amount claimed, 17 or the
value of the personal property, is determinative of jurisdiction; i.e., the value
of the personal property or the amount claimed should exceed twenty
thousand pesos (P20,000.00) in order to be cognizable by the Regional Trial
Court.
Circular No. 7 of this Court, dated March 24, 1988, cannot thus be
invoked, as the petitioner does, as authority for the dismissal of the
actions at bar. That circular, avowedly inspired by the doctrine laid down
in Manchester Development Corporation v. Court of appeals, 149 SCRA
562 (May 7, 1987), has but limited application to said actions, as shall
presently be discussed. Moreover, the rules therein laid down have since
been clarified and amplified by the Court's subsequent decision in Sun
Insurance Office, Ltd. (SIOL) v. Asuncion, et al., G.R. Nos. 79937-38,
February 13, 1989.
Circular No. 7 was aimed at the practice of certain parties who omit from
the prayer of their complaints "any specification of the amount of
damages," the omission being "clearly intended for no other purposes
than to evade the payment of the correct filing fees if not to mislead the
docket clerk, in the assessment of the filing fee." The following rules were
therefore set down:
23
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
1. All complaints, petitions, answers, and similar pleadings should specify
the amount of damages being prayed for not only in the body of the
pleading but also in the prayer, and said damages shall be considered in
the assessment of the filing fees in any case.
2. Any pleading that fails to comply with this requirement shall not be
accepted nor admitted, or shall otherwise be expunged from the record.
3. The Court acquires jurisdiction over any case only upon the payment
of the prescribed docket fee. An amendment of the complaint or similar
pleading will not thereby vest jurisdiction in the Court, much less the
payment of the docket fee based on the amount sought in the amended
pleading.
The clarificatory and additional rules laid down in Sun Insurance Office,
Ltd. v. Asuncion, supra, read as follows:
1. It is not simply the filing of the complaint or appropriate initiatory
pleading, but (also) the payment of the prescribed docket fee that vests a
trial court with jurisdiction over the subject-matter or nature of the action.
Where the filing of the initiatory pleading is not accompanied by payment
of the docket fee, the court may allow payment of the fee within a
reasonable time but in no case beyond the applicable prescriptive or
reglementary period.
2. The same rule applies to permissive counterclaims, third-party claims
and similar pleadings, which shall not be considered filed until and unless
the filing fee prescribed therefor is paid. The court may also allow
payment of said fee within a reasonable time but also in no case beyond
its applicable prescriptive or reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of
the appropriate pleading and payment of the prescribed filing fee but,
subsequently, the judgment awards a claim not specified in the pleading,
or if specified, the same has been left for determination by the court, the
additional filing fee therefor shall constitute a lien on the judgment. It shall
be the responsibility of the Clerk of Court or his duly authorized deputy to
enforce said lien and assess and collect the additional fee.
As will be noted, the requirement in Circular No. 7 that complaints,
petitions, answers, and similar pleadings should specify the amount of
damages being prayed for not only in the body of the pleading but also in
the prayer, has not been altered. What has been revised is the rule that
subsequent "amendment of the complaint or similar pleading will not
thereby vest jurisdiction in the Court, much less the payment of the
docket fee based on the amount sought in the amended pleading," the
trial court now being authorized to allow payment of the fee within a
reasonable time but in no case beyond the applicable prescriptive or
reglementary period. Moreover, a new rule has been added, governing
awards of claims not specified in the pleading - i.e., damages arising after
the filing of the complaint or similar pleading-as to which the additional
filing fee therefor shall constitute a lien on the judgment.
Now, under the Rules of Court, docket or filing fees are assessed on the
basis of the "sum claimed," on the one hand, or the "value of the property
in litigation or the value of the estate," on the other. 18 There are, in other
words, as already above intimated, actions or proceedings involving real
property, in which the value of the property is immaterial to the court's
jurisdiction, account thereof being taken merely for assessment of the legal
fees; and there are actions or proceedings, involving personal property or the
recovery of money and/or damages, in which the value of the property or the
amount of the demand is decisive of the trial court's competence (aside from
being the basis for fixing the corresponding docket fees). 19
Where the action is purely for the recovery of money or damages, the docket
fees are assessed on the basis of the aggregate amount claimed, exclusive
only of interests and costs. In this case, the complaint or similar pleading
should, according to Circular No. 7 of this Court, "specify the amount of
damages being prayed for not only in the body of the pleading but also in the
prayer, and said damages shall be considered in the assessment of the filing
fees in any case."
Two situations may arise. One is where the complaint or similar pleading
sets out a claim purely for money or damages and there is no precise
statement of the amounts being claimed. In this event the rule is that the
pleading will "not be accepted nor admitted, or shall otherwise be
expunged from the record." In other words, the complaint or pleading
may be dismissed, or the claims as to which the amounts are unspecified
may be expunged, although as aforestated the Court may, on motion,
permit amendment of the complaint and payment of the fees provided the
claim has not in the meantime become time-barred. The other is where
the pleading does specify the amount of every claim, but the fees paid
are insufficient; and here again, the rule now is that the court may allow a
reasonable time for the payment of the prescribed fees, or the balance
thereof, and upon such payment, the defect is cured and the court may
24
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
properly take cognizance of the action, unless in the meantime
prescription has set in and consequently barred the right of action.

Where the action involves real property and a related claim for damages
as well, the legal fees shall be assessed on the basis of both (a) the
value of the property and (b) the total amount of related damages sought.
The Court acquires jurisdiction over the action if the filing of the initiatory
pleading is accompanied by the payment of the requisite fees, or, if the
fees are not paid at the time of the filing of the pleading, as of the time of
full payment of the fees within such reasonable time as the court may
grant, unless, of course, prescription has set in the meantime. But where-
as in the case at bar-the fees prescribed for an action involving real
property have been paid, but the amounts of certain of the related
damages (actual, moral and nominal) being demanded are unspecified,
the action may not be dismissed. The Court undeniably has jurisdiction
over the action involving the real property, acquiring it upon the filing of
the complaint or similar pleading and payment of the prescribed fee. And
it is not divested of that authority by the circumstance that it may not have
acquired jurisdiction over the accompanying claims for damages because
of lack of specification thereof. What should be done is simply to expunge
those claims for damages as to which no amounts are stated, which is
what the respondent Courts did, or allow, on motion, a reasonable time
for the amendment of the complaints so as to allege the precise amount
of each item of damages and accept payment of the requisite fees
therefor within the relevant prescriptive period.

WHEREFORE, the petition is DISMISSED, without pronouncement as to

costs.

25
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 89747 July 20, 1990
MAERSK-TABACALERA SHIPPING AGENCY (FILIPINAS),
INC., petitioner, vs. THE HON. COURT OF APPEALS, MONET'S
EXPORT AND MANUFACTURING CORPORATION AND/OR VICENTE
TAGLE, respondents.
This is a petition for review on certiorari of the decision dated July 12,
1989 of the Court of Appeals in CA-G.R. CV No. 18124 affirming that of
the Regional Trial Court of Legaspi City in Civil Case No. 7480 which
awarded damages to the plaintiff, now private respondent, Monet's
Export and Manufacturing (Monet for short) against the petitioner Maersk-
Tabacalera Shipping Agency (Filipinas), Inc., (Maersk for short) for
breach of a (contract of carriage. The facts are stated in the decision of
the Court of Appeals as follows:
On May 21, 1985, a complaint for damages was filed by plaintiff
Monet's Export and Manufacturing Corporation (Monet's) and/or
Vicente Tagle against defendants Maersk Tabacalera Shipping
(Maersk) and the New Asia Enterprises (New Asia) and/or
Manuel Ranola, alleging, among other things, that plaintiff, like
defendant New Asia, is engaged in the export of locally-made
handicrafts and products, while defendant Maersk Line is
engaged in furnishing containerized services through which
Monet's and New Asia normally ship their goods; that on March
11, 1984, plaintiff, after complying with all the export and custom
requirements, loaded its goods in Maersk's container to be
delivered on or before March 15, 1984 to Manila for immediate
trans-shipment to its port of destination; that through fraud and
malice, and without prior notice to Monet's, Maersk unloaded the
goods at New Asia's factory site at Tagas, Daraga, Albay to give
way to the latter's own export shipment; that Monet's shipment
was later returned to its warehouse at Banag, Daraga, Albay; and
that because of this occurrence, Monet's had to secure another
shipper, thereby incurring unnecessary expenses as well as
suffering mental anguish, worry and sleepless nights thinking of
the possibility of losing its trading partners which would seriously
doubt Monet's capacity as a respectable exporter. Monet's
likewise alleged having suffered actual, moral and exemplary
damages (p. 1, Record).
Answering the complaint, Maersk contended that contrary to
Monet's allegations, the latter's shipment was loaded on March
10, 1984 in Maersk container subject to the condition that the bill
of lading would be issued upon Monet's compliance with all the
necessary export papers prior to the departure of the truck
bearing said container for Manila on March 11, 1984. Maersk
further alleged that Monet's knew that the subject goods would
not be brought to Manila without submitting all the necessary
export papers, as without them, Maersk would incur charges on
the cargo when deposited at the customs warehouse in Manila
and would subsequently be not allowed to export the goods by
custom authorities. (p. 16, Record).i•t•c-aüsl
Defendant New Asia, for its part, denied any liability in favor of
Monet's, alleging that Monet's has no cause of action against it
not being a party to the contract of carriage between Monet and
Maersk (p. 24, Record).
Defendants during the hearing of February 17, 1986 were
considered as in default for their failure to attend the scheduled
pre-trial conference despite proper notice. Subsequently, the
order of default in regard to defendant Maersk was lifted and the
latter was allowed to cross-examine all the witnesses of Monet's.
Defendant New Asia did not move for the lifting of the order of
default and accordingly remained as in default. (p. 204, Record.)
On March 28, 1988, the appealed judgment was rendered:
WHEREFORE, premises considered, defendant Maersk Shipping
Line is found to be liable to plaintiff for damages in the following
amounts: For breach of contract of carriage, P50,000.00; for
moral damages brought about by the wanton bad faith employed
by defendant shipping line in the performance of its contractual
obligation, P50,000.00; and as exemplary damages, another
P50,000.00 and for attomey's fees, P20,000.00.
Defendant New Asia Enterprises is exonerated of any liability,
there being no valid cause of action by plaintiff against it. New
Asia Enterprises cannot be made answerable for whatever action
or violation of contracted obligation defendant Maersk Line may
have committed against plaintiff because they are 2 separate
corporations and there is no proof of any collusion between them.
(pp. 27-28, Rollo.)
Maersk appealed to the Court of Appeals which affirmed the
judgment of the trial court on July 12, 1989.
26
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
Hence, the instant petition wherein Maersk raises the following
issues:
1. Respondent court erred in affirming the judgment of the trial
court despite the obvious fact that the trial court never acquired
jurisdiction over the subject-matter of the action because private
respondents did not specify their claims for damages and the
correct filing fees were not paid.
2. It was error for respondent court to have awarded P50,000.00
for "breach of contract" because this is not a form of damage and
petitioner has a right to know for what it is being made to pay.
3. Respondent court erred also in awarding moral damages to a
corporation that was not shown to have a good reputation that
was damaged.
4. Again, respondent court erred in awarding exemplary damages
in the absense of evidence that petitioner acted in a wanton or
malevolent manner.
5. Finally, respondent court erred in awarding attorney's fees
without any explanation for such an award. (pp. 13-14, Rollo.)
Petitioner's allegation that the decisions of the trial court and the
Court of Appeals were void for lack of jurisdiction (p. 75, Rollo) as
Monet did not pay the correct filing fee on its claims for actual,
moral and exemplary damages, the amounts of which were not
specified in the body and prayer of its complaint, is anchored in
the following ruling of this Court in Manchester Development
Corporation vs. CA (149 SCRA 526 [1987]) —
... the trial court did not acquire jurisdiction over the case by the
payment of only P410.00 as docket fee. ...
To put a stop to this irregularity, henceforth all complaints,
petitions, answers and other similar pleadings should specify the
amount of damages being prayed for not only in the body of the
pleading but also in the prayer, and said damages shall be
considered in the assestment of the filing fees in any case. Any
pleading that fails to comply with the requirement shall not be
accepted nor admitted, or shall otherwise be expunged from the
record.
The Court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee. An amendment of the
complaint or similar pleading will not thereby vest jurisdiction in
the court, much less the payment of the docket fee based on the
amounts sought in the amended pleading. (Emphasis supplied;
pp. 568-569.)
Unlike Manchester, however, where the jurisdictional issue arising from
insufficiency of the docket fee paid, was seasonably raised in the answer
of the defendant in the trial court, in this case the issue is being raised for
the first time in this Court. Petitioner submitted to the jurisdiction of the
trial court without question. It filed a counterclaim seeking affirmative
reliefs, and actively took part in the trial (p. 53, Rollo). A party who
voluntarily participates in the trial cannot later on raise the issue of the
court's lack of jurisdiction (Tan Boon Bee & Co. v. Judge Jarencio, 163
SCRA 205).
Maersk should have raised its objection to the trial court s jurisdiction
when the case was still in that court. It should not have waited for an
adverse decision by the Court of Appeals before waking up to raise the
question of jurisdiction. As this Court remarked in Tijam v.
Sibonghanoy, 23 SCRA 29, 37:
Were we to sanction such conduct on its part, We would in effect
be declaring as useless all the proceedings had in the present
case since it was commenced ... and compel the judgment
creditors to go up their Calvary once more. The inequity and
unfairness of this is not only patent but revolting.
A party may be barred by laches from invoking his plea (of lack of
jurisdiction) for the first time on appeal for the purpose of
annulling everything done in the case with the active participation
of said party invoking the plea. (Tijam vs. Sibonghanoy, 23 SCRA
29, 34.)
Since this is a case where some of the claims (for moral and exemplary
damages) were not specified in the plaintiff s pleading and were left for
determination by the court, the applicable rule is the third rule set out in
the decision of this Court in Sun Insurance Office Ltd., et al. vs. Hon.
Maximiano Asuncion, et al., 170 SCRA 274, to wit:
27
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
3. Where the trial court acquires jurisdiction over a claim by the
filing of the appropriate pleading and payment of the prescribed
filing fee but, subsequently, the judgment awards a claim not
specified in the pleading, or if specified the same has been left for
determination by the court, the additional filing fee therefore shall
constitute a lien on the judgment. It shall be the responsibility of
the Clerk of Court or his duly authorized deputy to enforce said
lien and assess and collect the additional fee.

The Clerk of Court of the trial court shall assess and collect the proper
additional fees on the totality of the judgment for the private respondent
(Id).

Monet's counsel in the trial court, Attorney Jesus Salazar, is hereby

reprimanded for his unethical practice of not specifying the amount of
damages sought in the body and prayer of his complaint in order to
defraud the Government of the proper fee for docketing said complaint.
He is warned that a repetition of that malpractice will be dealt with more
severely.

WHEREFORE, the petition for certiorari is denied for lack of merit.

However, the Clerk of Court of the trial court shall assess and collect the
fees due on the judgment as if the same amounts were specified in the
complaint. Costs against the petitioner.

SO ORDERED.

28
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 140954. April 12, 2005
HEIRS OF BERTULDO1 HINOG: Bertuldo Hinog II, Bertuldo Hinog III,
Bertuldo Hinog, Jr., Jocelyn Hinog, Bertoldo Hinog IV, Bertoldo
Hinog V, Edgardo Hinog, Milagros H. Pabatao, Lilian H. King,
Victoria H. Engracia, Terisita C. Hinog, Paz H. Besana, Roberto C.
Hinog, Vicente C. Hinog, Roel C. Hinog, Marilyn C. Hinog, Bebot C.
Hinog, lordes C. Hinog, Pablo Chiong, Arlene Lanasang (All
respresented by Bertuldo Hinog III), Petitioners, vs. HON. ACHILLES
MELICOR, in his capacity as Presiding Judge, RTC, Branch 4, 7th
Judicial Region, Tagbiliran City, Bohol, and CUSTODIO BALANE,
RUFO BALANE, HONORIO BALANE, and TOMAS
BALANE, Respondents.
Before us is a petition for certiorari and prohibition under Rule 65 of the
Rules of Court which assails the Orders dated March 22, 1999, August
13, 1999 and October 15, 1999 of the Regional Trial Court, Branch 4, of
Tagbilaran City, Bohol in Civil Case No. 4923.
The factual background of the case is as follows:
On May 21, 1991, private respondents Custodio, Rufo, Tomas and
Honorio, all surnamed Balane, filed a complaint for "Recovery of
Ownership and Possession, Removal of Construction and Damages"
against Bertuldo Hinog (Bertuldo for brevity). They alleged that: they own
a 1,399- square meter parcel of land situated in Malayo Norte, Cortes,
Bohol, designated as Lot No. 1714; sometime in March 1980, they
allowed Bertuldo to use a portion of the said property for a period of ten
years and construct thereon a small house of light materials at a nominal
annual rental of P100.00 only, considering the close relations of the
parties; after the expiration of the ten-year period, they demanded the
return of the occupied portion and removal of the house constructed
thereon but Bertuldo refused and instead claimed ownership of the entire
property.
Accordingly, private respondents sought to oust Bertuldo from the
premises of the subject property and restore upon themselves the
ownership and possession thereof, as well as the payment of moral and
exemplary damages, attorney’s fees and litigation expenses "in amounts
justified by the evidence." 2
On July 2, 1991, Bertuldo filed his Answer. He alleged ownership of the
disputed property by virtue of a Deed of Absolute Sale dated July 2,
1980, executed by one Tomas Pahac with the knowledge and conformity
of private respondents.3
After the pre-trial, trial on the merits ensued. On November 18, 1997,
private respondents rested their case. Thereupon, Bertuldo started his
direct examination. However, on June 24, 1998, Bertuldo died without
completing his evidence.
On August 4, 1998, Atty. Sulpicio A. Tinampay withdrew as counsel for
Bertuldo as his services were terminated by petitioner Bertuldo Hinog III.
Atty. Veronico G. Petalcorin then entered his appearance as new
counsel for Bertuldo.4
On September 22, 1998, Atty. Petalcorin filed a motion to expunge the
complaint from the record and nullify all court proceedings on the ground
that private respondents failed to specify in the complaint the amount of
damages claimed so as to pay the correct docket fees; and that
under Manchester Development Corporation vs. Court of Appeals,5 non-
payment of the correct docket fee is jurisdictional.6
In an amended motion, filed on October 2, 1998, Atty. Petalcorin further
alleged that the private respondents failed to pay the correct docket fee
since the main subject matter of the case cannot be estimated as it is for
recovery of ownership, possession and removal of construction.7
Private respondents opposed the motion to expunge on the following
grounds: (a) said motion was filed more than seven years from the
institution of the case; (b) Atty. Petalcorin has not complied with Section
16, Rule 3 of the Rules of Court which provides that the death of the
original defendant requires a substitution of parties before a lawyer can
have legal personality to represent a litigant and the motion to expunge
does not mention of any specific party whom he is representing; (c)
collectible fees due the court can be charged as lien on the judgment;
and (d) considering the lapse of time, the motion is merely a dilatory
scheme employed by petitioners.8
In their Rejoinder, petitioners manifested that the lapse of time does not
vest the court with jurisdiction over the case due to failure to pay the
correct docket fees. As to the contention that deficiency in payment of
docket fees can be made as a lien on the judgment, petitioners argued
that the payment of filing fees cannot be made dependent on the result of
the action taken.9
29
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
On January 21, 1999, the trial court, while ordering the complaint to be
expunged from the records and the nullification of all court proceedings
taken for failure to pay the correct docket fees, nonetheless, held:
The Court can acquire jurisdiction over this case only upon the payment
of the exact prescribed docket/filing fees for the main cause of action,
plus additional docket fee for the amount of damages being prayed for in
the complaint, which amount should be specified so that the same can be
considered in assessing the amount of the filing fees. Upon the complete
payment of such fees, the Court may take appropriate action in the light
of the ruling in the case of Manchester Development Corporation vs.
Court of Appeals, supra.10
Accordingly, on January 28, 1999, upon payment of deficiency docket
fee, private respondents filed a manifestation with prayer to reinstate the
case.11 Petitioners opposed the reinstatement12 but on March 22, 1999,
the trial court issued the first assailed Order reinstating the case.13
On May 24, 1999, petitioners, upon prior leave of court, filed their
14
supplemental pleading, appending therein a Deed of Sale dated
November 15, 1982.15 Following the submission of private respondents’
opposition thereto,16the trial court, in its Order dated July 7, 1999, denied
the supplemental pleading on the ground that the Deed of Absolute Sale
is a new matter which was never mentioned in the original answer dated
July 2, 1991, prepared by Bertuldo’s original counsel and which Bertuldo
verified; and that such new document is deemed waived in the light of
Section 1, Rule 917 of the Rules of Court. The trial court also noted that
no formal substitution of the parties was made because of the failure of
defendant’s counsel to give the names and addresses of the legal
representatives of Bertuldo, so much so that the supposed heirs of
Bertuldo are not specified in any pleading in the case. 18
On July 14, 1999, petitioners manifested that the trial court having
expunged the complaint and nullified all court proceedings, there is no
valid case and the complaint should not be admitted for failure to pay the
correct docket fees; that there should be no case to be reinstated and no
case to proceed as there is no complaint filed.19
After the submission of private respondents’ opposition20 and petitioners’
rejoinder,21 the trial court issued the second assailed Order on August 13,
1999, essentially denying petitioners’ manifestation/rejoinder. The trial
court held that the issues raised in such manifestation/rejoinder are
practically the same as those raised in the amended motion to expunge
which had already been passed upon in the Order dated January 21,
1999. Moreover, the trial court observed that the Order dated March 22,
1999 which reinstated the case was not objected to by petitioners within
the reglementary period or even thereafter via a motion for
reconsideration despite receipt thereof on March 26, 1999.22
On August 25, 1999, petitioners filed a motion for reconsideration23 but
the same was denied by the trial court in its third assailed Order dated
October 15, 1999. The trial court held that the Manchester rule was
relaxed in Sun Insurance Office, Ltd. vs. Asuncion.24 Noting that there
has been no substitution of parties following the death of Bertuldo, the
trial court directed Atty. Petalcorin to comply with the provisions of
Section 16, Rule 3 of the Rules of Court. The trial court also reiterated
that the Order dated March 22, 1999 reinstating the case was not
assailed by petitioners within the reglementary period, despite receipt
thereof on March 26, 1999.25
On November 19, 1999, Atty. Petalcorin complied with the directive of the
trial court to submit the names and addresses of the heirs of Bertuldo.26
On November 24, 1999, petitioners filed before us the present petition
for certiorari and prohibition.27 They allege that the public respondent
committed grave abuse of discretion in allowing the case to be reinstated
after private respondents paid the docket fee deficiency since the trial
court had earlier expunged the complaint from the record and nullified all
proceedings of the case and such ruling was not contested by the private
respondents. Moreover, they argue that the public respondent committed
grave abuse of discretion in allowing the case to be filed and denying the
manifestation with motion to dismiss, despite the defect in the complaint
which prayed for damages without specifying the amounts, in violation of
SC Circular No. 7, dated March 24, 1988.
In their Comment, private respondents aver that no grave abuse of
discretion was committed by the trial court in reinstating the complaint
upon the payment of deficiency docket fees because petitioners did not
object thereto within the reglementary period. Besides, Atty. Petalcorin
possessed no legal personality to appear as counsel for the heirs of
Bertuldo until he complies with Section 16, Rule 3 of the Rules of Court.28
At the outset, we note the procedural error committed by petitioners in
directly filing the instant petition before this Court for it violates the
established policy of strict observance of the judicial hierarchy of courts.
30
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
Although the Supreme Court, Court of Appeals and the Regional Trial
Courts have concurrent jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction,
such concurrence does not give the petitioner unrestricted freedom of
choice of court forum.29 As we stated in People vs. Cuaresma:30
This Court's original jurisdiction to issue writs of certiorari is not exclusive.
It is shared by this Court with Regional Trial Courts and with the Court of
Appeals. This concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and also serves as a general
determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first
level ("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. A direct invocation of
the Supreme Court’s original jurisdiction to issue these writs should be
allowed only when there are special and important reasons therefor,
clearly and specifically set out in the petition. This is [an] established
policy. It is a policy necessary to prevent inordinate demands upon the
Court’s time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-crowding of
the Court’s docket.31
The rationale for this rule is two-fold: (a) it would be an imposition upon
the precious time of this Court; and (b) it would cause an inevitable and
resultant delay, intended or otherwise, in the adjudication of cases, which
in some instances had to be remanded or referred to the lower court as
the proper forum under the rules of procedure, or as better equipped to
resolve the issues because this Court is not a trier of facts.32
Thus, this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts, and exceptional
and compelling circumstances, such as cases of national interest and of
serious implications, justify the availment of the extraordinary remedy of
writ of certiorari, calling for the exercise of its primary jurisdiction.
Exceptional and compelling circumstances were held present in the
following cases: (a) Chavez vs. Romulo33 on citizens’ right to bear arms;
(b) Government of the United States of America vs. Purganan34 on bail in
extradition proceedings; (c) Commission on Elections vs. Quijano-
Padilla35 on government contract involving modernization and
computerization of voters’ registration list; (d) Buklod ng Kawaning EIIB
vs. Zamora36 on status and existence of a public office; and (e) Fortich vs.
Corona37 on the so-called "Win-Win Resolution" of the Office of the
President which modified the approval of the conversion to agro-industrial
area.
In this case, no special and important reason or exceptional and
compelling circumstance analogous to any of the above cases has been
adduced by the petitioners so as to justify direct recourse to this Court.
The present petition should have been initially filed in the Court of
Appeals in strict observance of the doctrine on the hierarchy of courts.
Failure to do so is sufficient cause for the dismissal of the petition at bar.
In any event, even if the Court disregards such procedural flaw, the
petitioners’ contentions on the substantive aspect of the case fail to invite
judgment in their favor.
The unavailability of the writ of certiorari and prohibition in this case is
borne out of the fact that petitioners principally assail the Order dated
March 22, 1999 which they never sought reconsideration of, in due time,
despite receipt thereof on March 26, 1999. Instead, petitioners went
through the motion of filing a supplemental pleading and only when the
latter was denied, or after more than three months have passed, did they
raise the issue that the complaint should not have been reinstated in the
first place because the trial court had no jurisdiction to do so, having
already ruled that the complaint shall be expunged.
After recognizing the jurisdiction of the trial court by seeking affirmative
relief in their motion to serve supplemental pleading upon private
respondents, petitioners are effectively barred by estoppel from
challenging the trial court’s jurisdiction.38 If a party invokes the jurisdiction
of a court, he cannot thereafter challenge the court’s jurisdiction in the
same case.39 To rule otherwise would amount to speculating on the
fortune of litigation, which is against the policy of the Court.40
Nevertheless, there is a need to correct the erroneous impression of the
trial court as well as the private respondents that petitioners are barred
from assailing the Order dated March 22, 1999 which reinstated the case
because it was not objected to within the reglementary period or even
thereafter via a motion for reconsideration despite receipt thereof on
March 26, 1999.
31
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
It must be clarified that the said order is but a resolution on an incidental
matter which does not touch on the merits of the case or put an end to
the proceedings.41 It is an interlocutory order since there leaves
something else to be done by the trial court with respect to the merits of
the case.42 As such, it is not subject to a reglementary period.
Reglementary period refers to the period set by the rules for appeal or
further review of a final judgment or order, i.e., one that ends the litigation
in the trial court.
Moreover, the remedy against an interlocutory order is generally not to
resort forthwith to certiorari, but to continue with the case in due course
and, when an unfavorable verdict is handed down, to take an appeal in
the manner authorized by law.43 Only when the court issued such order
without or in excess of jurisdiction or with grave abuse of discretion and
when the assailed interlocutory order is patently erroneous and the
remedy of appeal would not afford adequate and expeditious relief
will certiorari be considered an appropriate remedy to assail an
interlocutory order.44 Such special circumstances are absolutely wanting
in the present case.
Time and again, the Court has held that the Manchester rule has been
modified in Sun Insurance Office, Ltd. (SIOL) vs. Asuncion45 which
defined the following guidelines involving the payment of docket fees:
1. It is not simply the filing of the complaint or appropriate initiatory
pleading, but the payment of the prescribed docket fee, that vests a trial
court with jurisdiction over the subject-matter or nature of the action.
Where the filing of the initiatory pleading is not accompanied by payment
of the docket fee, the court may allow payment of the fees within a
reasonable time but in no case beyond the applicable prescriptive or
reglementary period.
2. The same rule applies to permissive counterclaims, third-party claims
and similar pleadings, which shall not be considered filed until and unless
the filing fee prescribed therefor is paid. The court may also allow
payment of said fee within a reasonable time but also in no case beyond
its applicable prescriptive or reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of
the appropriate pleading and payment of the prescribed filing fee but,
subsequently, the judgment awards a claim not specified in the pleading,
or if specified the same has been left for determination by the court, the
additional filing fee therefor shall constitute a lien on the judgment. It shall
be the responsibility of the Clerk of Court or his duly authorized deputy to
enforce said lien and assess and collect the additional fee.
Plainly, while the payment of the prescribed docket fee is a jurisdictional
requirement, even its non-payment at the time of filing does not
automatically cause the dismissal of the case, as long as the fee is paid
within the applicable prescriptive or reglementary period, more so when
the party involved demonstrates a willingness to abide by the rules
prescribing such payment.46 Thus, when insufficient filing fees were
initially paid by the plaintiffs and there was no intention to defraud the
government, the Manchester rule does not apply.47
Under the peculiar circumstances of this case, the reinstatement of the
complaint was just and proper considering that the cause of action of
private respondents, being a real action, prescribes in thirty years,48 and
private respondents did not really intend to evade the payment of the
prescribed docket fee but simply contend that they could not be faulted
for inadequate assessment because the clerk of court made no notice of
demand or reassessment.49 They were in good faith and simply relied on
the assessment of the clerk of court.
Furthermore, the fact that private respondents prayed for payment of
damages "in amounts justified by the evidence" does not call for the
dismissal of the complaint for violation of SC Circular No. 7, dated March
24, 1988 which required that all complaints must specify the amount of
damages sought not only in the body of the pleadings but also in the
prayer in order to be accepted and admitted for filing. Sun
Insurance effectively modified SC Circular No. 7 by providing that filing
fees for damages and awards that cannot be estimated constitute liens
on the awards finally granted by the trial court.50
Thus, while the docket fees were based only on the real property
valuation, the trial court acquired jurisdiction over the action, and
judgment awards which were left for determination by the court or as may
be proven during trial would still be subject to additional filing fees which
shall constitute a lien on the judgment. It would then be the responsibility
of the Clerk of Court of the trial court or his duly authorized deputy to
enforce said lien and assess and collect the additional fees.51
It is worth noting that when Bertuldo filed his Answer on July 2, 1991, he
did not raise the issue of lack of jurisdiction for non-payment of correct
docket fees. Instead, he based his defense on a claim of ownership and
participated in the proceedings before the trial court. It was only in
32
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
September 22, 1998 or more than seven years after filing the answer,
and under the auspices of a new counsel, that the issue of jurisdiction
was raised for the first time in the motion to expunge by Bertuldo’s heirs.
After Bertuldo vigorously participated in all stages of the case before the
trial court and even invoked the trial court’s authority in order to ask for
affirmative relief, petitioners, considering that they merely stepped into
the shoes of their predecessor, are effectively barred by estoppel from
challenging the trial court’s jurisdiction. Although the issue of jurisdiction
may be raised at any stage of the proceedings as the same is conferred
by law, it is nonetheless settled that a party may be barred from raising it
on ground of laches or estoppel.52
or in excess of jurisdiction,59 not to be used for any other purpose,60 such
as to cure errors in proceedings or to correct erroneous conclusions of
law or fact.61 A contrary rule would lead to confusion, and seriously
hamper the administration of justice.
Petitioners utterly failed to show that the trial court gravely abused its
discretion in issuing the assailed resolutions. On the contrary, it acted
prudently, in accordance with law and jurisprudence.
WHEREFORE, the instant petition for certiorari is DISMISSED for lack of
merit.

Moreover, no formal substitution of the parties was effected within thirty

days from date of death of Bertuldo, as required by Section 16, Rule
353 of the Rules of Court. Needless to stress, the purpose behind the rule
on substitution is the protection of the right of every party to due process.
It is to ensure that the deceased party would continue to be properly
represented in the suit through the duly appointed legal representative of
his estate.54Non-compliance with the rule on substitution would render the
proceedings and judgment of the trial court infirm because the court
acquires no jurisdiction over the persons of the legal representatives or of
the heirs on whom the trial and the judgment would be binding.55 Thus,
proper substitution of heirs must be effected for the trial court to acquire
jurisdiction over their persons and to obviate any future claim by any heir
that he was not apprised of the litigation against Bertuldo or that he did
not authorize Atty. Petalcorin to represent him.

The list of names and addresses of the heirs was submitted sixteen
months after the death of Bertuldo and only when the trial court directed
Atty. Petalcorin to comply with the provisions of Section 16, Rule 3 of the
Rules of Court. Strictly speaking therefore, before said compliance, Atty.
Petalcorin had no standing in the court a quo when he filed his pleadings.
Be that as it may, the matter has been duly corrected by the Order of the
trial court dated October 15, 1999.

To be sure, certiorari under Rule 6556 is a remedy narrow in scope and

inflexible in character. It is not a general utility tool in the legal
workshop.57 It offers only a limited form of review. Its principal function is
to keep an inferior tribunal within its jurisdiction.58 It can be invoked only
for an error of jurisdiction, that is, one where the act complained of was
issued by the court, officer or a quasi-judicial body without or in excess of
jurisdiction, or with grave abuse of discretion which is tantamount to lack
33
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 136325. July 29, 2005
MANUEL M. SERRANO, Petitioners, vs. EUGENIO C.
DELICA, Respondents
At bar is a petition for review on certiorari1 assailing the Decision2 dated
September 30, 1998 and Resolution dated November 13, 1998 of the
Court of Appeals in CA-G.R. SP No. 46632, entitled "Manuel M. Serrano,
petitioner, vs. Hon. Alberto L. Lerma, Presiding Judge, Regional Trial
Court, Branch 256, Muntinlupa City, and Eugenio C. Delica, respondents.
The petition stemmed from the following facts:
On June 30, 1997, Eugenio C. Delica, respondent, filed with the Regional
Trial Court, Branch 256, Muntinlupa City, presided by Judge Alberto L.
Lerma, a complaint for cancellation of Deeds of Sale, Transfer
Certificates of Title, Joint Venture Agreement, and damages, with prayer
for the issuance of a writ of preliminary injunction and temporary
restraining order, docketed as Civil Case No. 97-120. Impleaded as
defendants were Manuel M. Serrano, now petitioner, Manuel P. Blanco,
MBJ Land, Inc., and MARILAQUE Land, Inc.
The complaint alleges inter alia that respondent is the registered owner of
ten parcels of land situated in Bagbagan, Muntinlupa City, with a total
area of 2,062,475 square meters, more or less, covered by ten Transfer
Certificates of Title (TCT) Nos. S-12619 to S-12628 of the Registry of
Deeds, same city. On August 10, 1995, after having been "promised with
financial bonanza" by petitioner and Manuel Blanco, respondent
executed in favor of the latter a special power of attorney. Blanco then
sold to MBJ Land, Inc. respondent’s three parcels of land covered by
TCT Nos. S-12625, S-12626 and S-12628. Thus, these titles were
cancelled and in lieu thereof, TCT Nos. 207282, 207283 and 207284
were issued in the name of MBJ Land, Inc.
On December 4, 1996, MBJ Land, Inc. entered into a Joint Venture
Agreement with MARILAQUE Land, Inc. involving the three parcels of
land.
On December 23, 1996, petitioner Serrano again "unduly influenced,
coerced and intimidated" respondent into executing an affidavit wherein
he confirmed that he sold his remaining seven parcels of land, covered
by TCT Nos. S-12619 to S-126124 and S-12627, to petitioners. Later,
respondent found that these seven titles were cancelled and new titles
(TCT Nos. 209636 to 209642) were issued in petitioner’s name based on
a spurious Deed of Absolute Sale.
Respondent thus prayed in his complaint that the special power of
attorney, affidavit, the new titles issued in the names of petitioner and
MBJ Land, Inc., and contracts of sale be cancelled; and that petitioner
and his co-defendants be ordered to pay respondent, jointly and
severally, actual, moral and exemplary damages in the amount
of P200,000.00, as well as attorney’s fee of P200,000.00 and costs of
litigation. Respondent likewise prayed that, pending trial on the merits, a
temporary restraining order and a writ of preliminary injunction be issued
ordering the defendants to immediately restore him to his possession of
the parcels of land in question; and that after trial, the writ of injunction be
made permanent.
Petitioner then filed his answer with compulsory counterclaim, denying
the material allegations of the complaint.
Respondent later amended his complaint.
On August 5, 1997, the trial court issued a temporary restraining order
and on September 8, 1997, a preliminary injunction directing petitioner
and his co-defendants to immediately restore respondent to his
possession.
Petitioner then filed consolidated motions for reconsideration praying that
the complaint be dismissed for respondent’s failure to pay the required
docket fee; and that Judge Lerma be directed to inhibit himself from
hearing the case.
The trial court, in its Order dated January 7, 1998, denied petitioner’s
consolidated motions.
Petitioner seasonably filed with the Court of Appeals a petition
for certiorari and prohibition with application for a preliminary injunction
and temporary restraining order assailing the trial court’s twin Orders
dated September 8, 1997 ordering the issuance of a writ of preliminary
injunction; and denying his consolidated motions dated January 7, 1998.
Petitioner raised three issues: (a) whether respondent paid the correct
docket fee; (b) whether the trial court’s issuance of the writ of preliminary
injunction is in order; and (c) whether Judge Lerma should inhibit himself
from hearing the case.
34
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
On September 30, 1998, the Court of Appeals rendered a
Decision partially granting the petition by: (1) affirming the trial court’s
ruling that the docket fee was correctly paid; (2) setting aside the trial
court’s Order directing the issuance of a writ of preliminary injunction; and
(3) leaving the matter of inhibition to the discretion of Judge Lerma.
Petitioner then filed a motion for partial reconsideration of the Court of
Appeals’ ruling that respondent correctly paid the docket fee and that the
motion for inhibition should be addressed to Judge Lerma’s sound
discretion.
In a Resolution dated November 13, 1998, the Appellate Court denied
the motion.
Hence the instant petition for review on certiorari.
The core issues for our resolution are:
1. Whether respondent paid the correct docket fee when he filed his
complaint in Civil Case No. 97-120; and
2. Whether the matter of inhibition should be addressed to Judge Lerma’s
discretion.
On the first issue, we cannot overemphasized the importance of paying
the correct docket fees. Such fees are intended to take care of court
expenses in the handling of cases in terms of cost of supplies, use of
equipment, salaries and fringe benefits of personnel, etc., computed as to
man-hours used in the handling of each case. The payment of said fees,
therefore, cannot be made dependent on the result of the action taken,
without entailing tremendous losses to the government and to the
judiciary in particular.3
Thus, the rule is that "upon the filing of the pleading or other application
which initiates an action or proceeding, the fees prescribed therefor shall
be paid in full."4 However, a litigant who is a pauper is exempt from the
payment of the docket fees. But the fees shall be a lien on the judgment
rendered in favor of said pauper litigant, unless the court otherwise
provides.5
It is not simply the filing of the complaint or appropriate initiatory pleading,
but the payment of the prescribed docket fees that vests a trial court with
jurisdiction over the subject matter or nature of the action.6
In the case at bar, petitioner impugns the Court of Appeals’ ruling that
respondent’s complaint in Civil Case No. 97-120 is not capable of
pecuniary estimation and that, therefore, the docket fee is fixed
at P600.00 pursuant to Section 7(b)(1), Rule 141 of the Revised Rules of
Court.
We agree with petitioner that the Court of Appeals erred in issuing such
ruling. It should have considered the allegations of the complaint and
the character of the reliefs sought, the criteria in determining the nature
of an action.7
A careful examination of respondent’s complaint is that it is a real action.
In Paderanga vs. Buissan,8 we held that "in a real action, the plaintiff
seeks the recovery of real property, or, as stated in Section 2(a), Rule 4
of the Revised Rules of Court,9 a real action is one ‘affecting title to real
property or for the recovery of possession of, or for partition or
condemnation of, or foreclosure of a mortgage on a real property.’"
Obviously, respondent’s complaint is a real action involving not only the
recovery of real properties, but likewise the cancellation of the titles
thereto.
Considering that respondent’s complaint is a real action, the Rule
requires that "the assessed value of the property, or if there is none,
the estimated value thereof shall be alleged by the claimant and shall
be the basis in computing the fees."10
We note, however, that neither the "assessed value" nor the "estimated
value" of the questioned parcels of land were alleged by respondent in
both his original and amended complaint. What he stated in his amended
complaint is that the disputed realties have a "BIR zonal valuation"
of P1,200.00 per square meter. However, the alleged "BIR zonal
valuation" is not the kind of valuation required by the Rule. It is
the assessed value of the realty.11 Having utterly failed to comply with
the requirement of the Rule that he shall allege in his complaint the
assessed value of his real properties in controversy, the correct docket
fee cannot be computed. As such, his complaint should not have been
accepted by the trial court. We thus rule that it has not acquired
jurisdiction over the present case for failure of herein respondent to pay
35
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
the required docket fee. On this ground alone, respondent’s complaint is
vulnerable to dismissal.

Since the complaint is dismissible, the second issue on whether Judge

Lerma should inhibit himself from hearing the case has become moot and
academic.

WHEREFORE, the petition is GRANTED. The assailed Decision and

Resolution of the Court of Appeals in CA-G.R. SP No. 46632 are hereby
REVERSED. The complaint in Civil Case No. 97-120 is ordered
DISMISSED without prejudice.

SO ORDERED.

36
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 165147 July 9, 2008
PHILIPPINE FIRST INSURANCE CO., INC. and PARAMOUNT
GENERAL INSURANCE CORPORATION,Petitioners, vs. PYRAMID
LOGISTICS AND TRUCKING CORPORATION (formerly PANACOR
INTEGRATED WAREHOUSING AND TRUCKING
CORPORATION), Respondent.
The issue, in the main, in the present case is whether respondent,
Pyramid Logistics and Trucking Corporation (Pyramid), which filed on
November 7, 2001 a complaint,1 denominated as one for specific
performance and damages, against petitioners Philippine First Insurance
Company, Inc. (Philippine First) and Paramount General Insurance
Corporation (Paramount) before the Regional Trial Court (RTC) of
Makati, docketed as Civil Case No. 01-1609, paid the correct docket fee;
if in the negative, whether the complaint should be dismissed or Pyramid
can still be ordered to pay the fee.
Pyramid sought to recover the proceeds of two insurance policies issued
to it, Policy No. IN-002904 issued by petitioner Paramount, and Policy
No. MN-MCL-HO-00-0000007-00 issued by petitioner Philippine First.
Despite demands, petitioners allegedly failed to settle them, hence, it
filed the complaint subject of the present petition.
In its complaint, Pyramid alleged that on November 8, 2000, its delivery
van bearing license plate number PHL-545 which was loaded with goods
belonging to California Manufacturing Corporation (CMC) valued at
PESOS NINE HUNDRED SEVEN THOUSAND ONE HUNDRED FORTY
NINE AND SEVEN/100 (P907,149.07) left the CMC Bicutan Warehouse
but the van, together with the goods, failed to reach its destination and its
driver and helper were nowhere to be found, to its damage and prejudice;
that it filed a criminal complaint against the driver and the helper for
qualified theft, and a claim with herein petitioners as co-insurers of the
lost goods but, in violation of petitioners’ undertaking under the insurance
policies, they refused without just and valid reasons to compensate it for
the loss; and that as a direct consequence of petitioners’ failure, despite
repeated demands, to comply with their respective undertakings under
the Insurance Policies by compensating for the value of the lost goods, it
suffered damages and was constrained to engage the services of
counsel to enforce and protect its right to recover compensation under
said policies, for which services it obligated itself to pay the sum
equivalent to twenty-five (25%) of any amount recovered as and for
attorney’s fees and legal expenses.2
Pyramid thus prayed
. . . that after due proceedings, judgment be rendered, ordering [herein
petitioners] to comply with their obligation under their respective
Insurance Policies by paying to [it] jointly and severally, the claims arising
from the subject losses.
THAT, [herein petitioners] be adjudged jointly and severally to pay to [it],
in addition to the foregoing, the following:
1. The sum of PHP 50,000.00 plus PHP 1,500.00 for each Court
session attended by counsel until the instant [case] is finally
terminated, as and for attorney’s fees;
2. The costs of suit[;]3 (Underscoring supplied)
and for other reliefs just and equitable in the premises.4
Pyramid was assessed P610 docket fee, apparently on the basis of the
amount of P50,000 specified in the prayer representing attorney’s fees,
which it duly paid.5
Pyramid later filed a 1st Amended Complaint6 containing minor changes
in its body7 but bearing the same prayer.8Branch 148 of the Makati RTC
to which the complaint was raffled admitted the Amended Complaint.9
Petitioners filed a Motion to Dismiss on the ground of, inter alia, lack of
jurisdiction, Pyramid not having paid the docket fees in full, arguing thus:
xxxx
In the body of the Amended Complaint, plaintiff alleged that the goods
belonging to California Manufacturing Co., Inc. (CMC) is [sic] "valued
at Php907,149.07" and consequently, "plaintiff incurred expenses,
suffered damages and was constrained to engage the services of
counsel to enforce and protect its right to recover compensation under
the said policies and for which services, it obligated itself to pay the sum
equivalent to twenty-five (25%) of any recovery in the instant action, as
and for attorney’s fees and legal expenses".
On the other hand, in the prayer in the Complaint, plaintiff deliberately
omitted to specify what these damages are. x x x
37
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
xxxx
Verily, this deliberate omission by the plaintiff is clearly intended for no
other purposes than to evade the payment of the correct filing fee if not to
mislead the docket clerk, in the assessment of the filing fee. In fact, the
docket clerk in the instant case charged the plaintiff a total
of Php610.00 only as a filing fee, which she must have based on the
amount of Php50,000.00 [attorney’s fees] only.10 (Emphasis in the
original; italics and underscoring supplied)
Petitioners cited11 Manchester Development Corporation v. Court of
Appeals12 which held:
x x x [A]ll complaints, petitions, answers and other similar pleadings
should specify the amount of damages being prayed for not only in
the body of the pleading but also in the prayer, and said damages shall
be considered in the assessment of the filing fees in any case. Any
pleading that fails to comply with this requirement shall not be accepted
or admitted, or shall otherwise be expunged from the record.13 (Emphasis
and underscoring supplied)
They cited too Sun Insurance Office, Ltd. v. Asuncion14 which held that
"[i]t is not simply the filing of the complaint or appropriate pleading, but
the payment of the prescribed docket fee, that vests a trial court with
jurisdiction over the subject-matter or nature of the action."15
Petitioners thus concluded:
With the above cases as a backdrop, the Supreme Court, in revising the
rules of pleading and practice in the 1997 Rules of Civil Procedure,
added a tenth ground to a Motion to Dismiss – to wit, "[t]hat a condition
precedent for filing claim [sic] has not been complied with.["]
On the contrary, if plaintiff would insist that its claim against the
defendants is only Php50,000.00 plus Php 1,500.00 as appearance fee
per court hearing, then it follows that it is the Metropolitan Trial Court
which has jurisdiction over this case, not this Honorable Court. Such
amount is way below the minimum jurisdictional amount prescribed by
the rules in order to confer jurisdiction to the Regional Trial
Court.16 (Underscoring supplied)
To the Motion to Dismiss Pyramid filed its Opposition,17 alleging that if
there was a mistake in the assessment of the docket fees, the trial court
was not precluded from acquiring jurisdiction over the complaint as "it has
the authority to direct the mistaken party to complete the docket fees in
the course of the proceedings . . ."18 The Opposition merited a
Reply19 from petitioners.
By Order of June 3, 2002, the trial court20 denied the Motion to Dismiss in
this wise:
xxxx
Indeed, a perusal of the Complaint reveals that while plaintiff made
mention of the value of the goods, which were lost, the prayer of plaintiff
did not indicate its exact claim from the defendants. The Complaint
merely prayed defendants "to comply with their obligation under their
respective insurance policies by paying to plaintiff jointly and severally,
the claims arising from the subject losses" and did not mention the
amount of PHP907,149.07, which is the value of the goods and which is
also the subject of insurance. This resulted to the assessment and
payment of docket fees in the amount of P610 only. The Court, even
without the Motion to Dismiss filed by defendant, actually noted such
omission which is actually becoming a practice for some lawyers. For
whatever purpose it may be, the Court will not dwell into it. In this instant
case, this being for specific performance, it is not dismissible on that
ground but unless proper docket fees are paid, the Court can only grant
what was prayed for in the Complaint.
x x x x21 (Emphasis and underscoring supplied)
Petitioners’ Motion for Reconsideration22 of the denial of their Motion to
Dismiss having been denied23 by Order of August 1, 2002, they filed their
Answer with Compulsory Counterclaim ad Cautelam,24 alleging that they
intended to file a Petition for Certiorari with the Court of Appeals.25
Petitioners did indeed eventually file before the Court of Appeals a
Petition for Certiorari (With Preliminary Injunction and Urgent Prayer for
Restraining Order)26 posing the following two of three queries, viz:
First. Does [Pyramid’s] deliberate omission to pay the required correct
docket and filing fee vest the trial court [with] jurisdiction to entertain the
subject matter of the instant case?
38
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
Second. [Is] the instant case an action for specific performance or simply
one for damages or recovery of a sum of money?
x x x x27
By Decision of June 3, 2004,28 the Court of Appeals partially granted
petitioners’ petition for certiorari by setting aside the trial judge’s assailed
orders and ordering Pyramid to file the correct docket fees within a
reasonable time, it holding that while the complaint was denominated as
one for specific performance, it sought to recover from petitioners
Pyramid’s "claims arising from the subject losses." The appellate court
ratiocinated:
xxxx
Indeed, it has been held that "it is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of the prescribed docket
fee that vests a trial court with jurisdiction over the subject matter or
nature of the action." To determine the docket fees, it is necessary to
determine the true nature of the action by examining the allegations of
the complaint. x x x
xxxx
While the captions of the complaint and 1st amended complaint
denominated the case as one for "Specific Performance and Damages",
the allegations and prayer therein show that the specific performance
sought by private respondent was for petitioners to "comply with their
obligation under their respective Insurance Policies by paying to plaintiff
jointly and severally, the claims arising from the subject losses" as well as
the attorney’s fees and costs of suit. Obviously, what constitutes specific
performance is the payment itself by petitioners of private respondent’s
claims arising from the losses it allegedly incurred. x x x29
xxxx
Public respondent should have ordered private respondent to pay the
correct docket fees on the basis of the allegations of the complaint. x x x
xxxx
While it has been held in Manchester Development Corporation vs. Court
of Appeals x x x that "any pleading that fails to comply with this
requirement of specifying the amount of damages not only in the body of
the pleading but also in the prayer shall not be accepted nor admitted, or
shall otherwise be expunged from the record," this rule was relaxed in
subsequent cases, wherein payment of the correct docket fees was
allowed within a reasonable time. . .
x x x x30 (Emphasis and underscoring supplied)
Thus the appellate court disposed:
WHEREFORE, the petition is partially granted. The Orders dated June 3,
2002 and August 1, 2002 of public respondent are partially set aside
insofar as they dispensed with the payment of the correct docket fees.
Consequently, [Pyramid] is hereby directed to pay the correct docket fees
on the basis of the losses alleged in the body of the complaint, plus the
attorney’s fees mentioned in the prayer, within a reasonable time which
should not go beyond the applicable prescriptive or reglementary period.
In all other respects, the said Orders are affirmed.31(Underscoring
supplied)
Petitioners filed a Motion for Reconsideration32 of the appellate court’s
decision. Pyramid filed its Comment and Opposition to the Motion for
Reconsideration,33 arguing thus:
xxxx
In the present case, [Pyramid] thru its Complaint simply sought from
petitioners compliance with their contractual undertaking as insurers of
the goods insured which were lost in [its] custody. Private respondent did
not specify the extent of petitioners’ obligation as it left the matter entirely
in the judgment of the trial court to consider. Thus, the Complaint was
labeled "Specific Performance" which [Pyramid] submitted to the Clerk of
Court for assessment of the docket fee, after which, it paid the same
based on the said assessment. There was no indication whatsoever that
[Pyramid] had refused to pay; rather, it merely argued against petitioners’
submissions as it maintained the correctness of the assessment
made.34 (Underscoring supplied)
By Resolution of August 23, 2004, the Court of Appeals denied
petitioners’ Motion for Reconsideration;35 hence, the present Petition for
39
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
Review on Certiorari, raising the issues of whether the appellate court
36
erred:
. . . WHEN IT APPLIED IN THE INSTANT CASE THE LIBERAL
RULE ENUNCIATED IN SUN INSURANCE OFFICE, LTD. (SIOL) VS.
ASUNCION, 170 SCRA 274 AND NATIONAL STEEL CORPORATION
VS. COURT OF APPEALS, 302 SCRA 523 (1999) IN RESPECT TO THE
PAYMENT OF THE PRESCRIBED FILING AND DOCKET
FEES DESPITE CLEAR SHOWING OF RESPONDENT’S INTENTION
TO EVADE THE PAYMENT OF THE CORRECT DOCKET FEE WHICH
WARRANTS THE APPLICATION OF THE DOCTRINE LAID DOWN
IN MANCHESTER DEVELOPMENT CORPORATION VS. COURT OF
APPEALS, 149 SCRA 562.
. . . WHEN IT DID NOT APPLY THE RULING OF THIS HONORABLE
TRIBUNAL IN MARCOPPER MINING CORPORATION VS. GARCIA,
143 SCRA 178, TAN VS. DIRECTOR OF FORESTRY, 125 SCRA 302,
AND CHINA ROAD AND BRIDGE CORPORATION VS. COURT OF
APPEALS, 348 SCRA 401.37 (Underscoring supplied)
Petitioners invoke the doctrine in Manchester Development Corporation
v. Court of Appeals38 that a pleading which does not specify in the prayer
the amount sought shall not be admitted or shall otherwise be expunged,
and that the court acquires jurisdiction only upon the payment of the
prescribed docket fee.39
Pyramid, on the other hand, insists, in its Comment on the Petition,40 on
the application of Sun Insurance Office, Ltd. (SIOL) v. Asuncion41 and
subsequent rulings relaxing the Manchester ruling by allowing payment of
the docket fee within a reasonable time, in no case beyond the applicable
prescriptive or reglementary period, where the filing of the initiatory
pleading is not accompanied by the payment of the prescribed docket
fee.42
In Tacay v. Regional Trial Court of Tagum, Davao del Norte,43 the Court
clarified the effect of the Sun Insurance ruling on the Manchester ruling
as follows:
As will be noted, the requirement in Circular No. 7 [of this Court which
was issued based on the Manchester ruling44 ] that complaints, petitions,
answers, and similar pleadings should specify the amount of damages
being prayed for not only in the body of the pleading but also in the
prayer, has not been altered. What has been revised is the rule that
subsequent "amendment of the complaint or similar pleading will not
thereby vest jurisdiction in the Court, much less the payment of the
docket fee based on the amount sought in the amended pleading," the
trial court now being authorized to allow payment of the fee within a
reasonable time but in no case beyond the applicable prescriptive period
or reglementary period. Moreover, a new rule has been added, governing
the awards of claims not specified in the pleading – i.e., damages arising
after the filing of the complaint or similar pleading – as to which the
additional filing fee therefore shall constitute a lien on the judgment.
Now, under the Rules of Court, docket or filing fees are assessed on the
basis of the "sum claimed," on the one hand, or the "value of the property
in litigation or the value of the estate," on the other. . .
Where the action is purely for the recovery of money or damages, the
docket fees are assessed on the basis of the aggregate amount claimed,
exclusive only of interests and costs. In this case, the complaint or similar
pleading should, according to Circular No. 7 of this Court, "specify the
amount of damages being prayed for not only in the body of the pleading
but also in the prayer, and said damages shall be considered in the
assessment of filing fees in any case."
Two situations may arise. One is where the complaint or similar pleading
sets out a claim purely for money and damages and there is no
statement of the amounts being claimed. In this event the rule is that the
pleading will "not be accepted nor admitted, or shall otherwise be
expunged from the record." In other words, the complaint or pleading
may be dismissed, or the claims as to which amounts are unspecified
may be expunged, although as aforestated the Court may, on motion,
permit amendment of the complaint and payment of the fees provided the
claim has not in the meantime become time-barred. The other is where
the pleading does specify the amount of every claim, but the fees paid
are insufficient; and here again, the rule now is that the court may allow a
reasonable time for the payment of the prescribed fees, or the balance
thereof, and upon such payment, the defect is cured and the court may
properly take cognizance of the action, unless in the meantime
prescription has set in and consequently barred the right of
action.45 (Emphasis and underscoring supplied)
Indeed, Pyramid captioned its complaint as one for "specific performance
and damages" even if it was, as the allegations in its body showed,
seeking in the main the collection of its claims-sums of money
representing losses the amount of which it, by its own admission,
40
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
"knew." And, indeed, it failed to specify in its prayer in the complaint the
46
amount of its claims/damages.
When Pyramid amended its complaint, it still did not specify, in its prayer,
the amount of claims/damages it was seeking. In fact it has the audacity
to inform this Court, in its Comment on the present Petition, that
x x x In the natural order of things, when a litigant is given the opportunity
to spend less for a docket fee after submitting his pleading for
assessment by the Office of the Clerk of Court, he would not decline it
inasmuch as to request for a higher assessment under the circumstances
[for such] is against his interest and would be senseless. Placed under
the same situation, petitioner[s] would certainly do likewise. To say
otherwise would certainly be dishonest,47
which comment drew petitioners to conclude as follows:
[This] only shows respondent’s dishonesty and lack of regard of the rules.
Following this line of reasoning, respondent would do everything if only
for it to spend less for the filing fee, even to the extent of circumventing
and defying the rule on the payment of the filing fee.
In spite of the fact that the respondent was already caught in the
quagmire of its own cobweb of deception, it further justified its unethical
act by ratiocinating that "placed under the same situation, petitioner
would certainly do likewise, to say otherwise would certainly be
dishonest". This attitude of the respondent is very alarming! Having been
caught red-handed, the honorable thing that respondent should have
done is admit its own violation rather than justify an act which it knows is
a clear contravention of the rules and jurisprudence.48 (Italics and
emphasis in the original)
Pyramid’s following justification for omitting to specify in the prayer of its
complaint the amount of its claims/damages, viz:
xxxx
x x x While respondent knew its losses and alleged them in the body of
the Complaint, it was not aware of the extent of petitioners’ respective
liability under the two insurance policies. The allegation of respondent’s
losses, albeit, without repeating them in its prayer for relief was not
motivated by an intention to mislead, cheat or defraud the Court. It just
left the matter of liability arising from two separate and distinct Insurance
Policies covering the same insurable risk for the trial court’s
determination, hence, respondent came up with an action for "specific
performance[,]"49 (Emphasis and underscoring supplied)
fails to impress.
As the salient allegations of Pyramid’s complaint show and as priorly
stated, they constitute, in the main, an action for collection of its claims it
admittedly "knew."
Assuming arguendo that Pyramid has other claims the amounts of which
are yet to be determined by the trial court, the rule established
in Manchester which was embodied in this Court’s Circular No. 7-88
issued on March 24, 1988, as modified by the Sun Insurance ruling, still
applies. Consider this Court’s pronouncement bearing on the matter in
Ayala Corporation v. Madayag:50 1aw phil
xxxx
Apparently, the trial court misinterpreted paragraph 3 of the [Sun
Insurance] ruling of this Court wherein it stated that "where the judgment
awards a claim not specified in the pleading, or if specified, the same has
been left for the determination of the court, the additional filing fee
therefor shall constitute a lien on the judgment" by considering it to mean
that where in the body and prayer of the complaint there is a prayer xxx
the amount of which is left to the discretion of the Court, there is no need
to specify the amount being sought, and that any award thereafter shall
constitute a lien on the judgment.
x x x While it is true that the determination of certain damages x x x is left
to the sound discretion of the court, it is the duty of the parties claiming
such damages to specify the amount sought on the basis of which the
court may make a proper determination, and for the proper assessment
of the appropriate docket fees. The exception contemplated as to claims
not specified or to claims although specified are left for determination of
the court is limited only to any damages that may arise after the filing of
the complaint or similar pleading for then it will not be possible for the
claimant to specify nor speculate as to the amount thereof. (Emphasis
and underscoring supplied)
41
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
If respondent Pyramid’s counsel had only been forthright in drafting the
complaint and taking the cudgels for his client and the trial judge
assiduous in applying Circular No. 7 vis a vis prevailing jurisprudence,
the precious time of this Court, as well as of that of the appellate court,
would not have been unnecessarily sapped.

The Court at this juncture thus reminds Pyramid’s counsel to observe

Canon 12 of the Code of Professional Ethics which enjoins a lawyer to
"exert every effort and consider it his duty to assist in the speedy and
efficient administration of justice," and Rule 12.04 of the same Canon
which enjoins a lawyer "not [to] unduly delay a case, impede the
execution of a judgment or misuse court processes." And the Court
reminds too the trial judge to bear in mind that the nature of an action is
determined by the allegations of the pleadings51 and to keep abreast of all
laws and prevailing jurisprudence, consistent with the standard that
magistrates must be the embodiments of competence, integrity and
independence.52

WHEREFORE, in light of the foregoing discussions, the petition is

DENIED.

SO ORDERED.

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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 181842 February 5, 2010
METROPOLITAN BANK AND TRUST CO. and SOLIDBANK
CORPORATION, Petitioners, vs. BERNARDITA H. PEREZ,
represented by her Attorney-in-Fact PATRIA H. PEREZ, Respondent.
On September 17, 1997, petitioner Solidbank Corporation (Solidbank)
forged a lease contract with Bernardita H. Perez (respondent),
represented by her attorney-in-fact Patria H. Perez1, over two parcels of
land located in Sta. Maria, Bulacan for a period of 15 years commencing
on January 1, 1998. Solidbank was to, as it did, construct a one-storey
building specifically suited for bank premises.
Solidbank was later acquired by its co-petitioner Metropolitan Bank and
Trust Company (Metrobank), the latter as the surviving entity.
On September 24, 2002, Metrobank sent a notice of termination of the
lease contract effective September 30, 2002.2 Respondent, objecting to
the termination, filed a complaint for breach of contract and damages
against herein petitioners Solidbank and Metrobank before the Regional
Trial Court (RTC) of Malolos, Bulacan praying that, inter alia, herein
petitioners be ordered to pay her "the would be unrealized income for the
ensuing idle months of the said building."3
Metrobank asserted in its Answer with Counterclaim, however, that the
lease contract did not prohibit pre-termination by the parties.
After respondent rested her case, Metrobank was, by Order of January
12, 2006, declared to have waived its right to present evidence after its
counsel incurred several unexcused absences.
By Decision of April 5, 2006, Branch 22 of the Malolos RTC ruled in favor
of respondent, disposing as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, judgment is hereby
rendered in favor of the plaintiff and against the defendants ordering the
latter, jointly and severally:
1. To pay the plaintiff the amount of P212,322.60 as unrealized
income before the filing of the case (Sept. 2002 to Feb. 2003);
2. To pay the plaintiff the amount of P2,013,753.03 as unrealized
(income) after the filing of the case up to present (March 2003 to
March 2006);
3. To pay the plaintiff the would be unrealized income for the
ensuing idle months of said building amounting to P7,126,494.30
(covering April 2006 until expiration of the contract of lease);
4. To pay plaintiff the amount of P200,000.00 as moral damages;
5. To pay plaintiff the amount of P100,000.00 as exemplary
damages;
6. To pay plaintiff the amount of P100,000.00 as attorney’s fees
and
7. To pay plaintiff as litigation expenses.
SO ORDERED.4 (emphasis and underscoring supplied)
On appeal, Metrobank challenged, in the main, the trial court’s award of
"unrealized income for the ensuing idle months" despite respondent’s
failure to pay docket fees thereon to thus render the complaint
dismissible for lack of jurisdiction.
By Decision5 of November 23, 2007, the appellate court affirmed that of
the trial court6 and denied, by Resolution of February 21, 2008, a
reconsideration thereof. Hence, the present petition for review on
certiorari.
In her Comment, respondent admitted that the filing fees she paid did not
cover her prayer for unrealized income for the ensuing idle months, for
"at the time of filing and payment[,] the period that the building would be
idle could not yet be determined."7
In sustaining respondent’s justification for nonpayment of additional
docket fees, the appellate court held:
For one, plaintiff-appellee Perez could not have been certain at the time
she filed the Complaint that defendant-appellant Metrobank would no
longer return to the Leased Property. It would have been speculative
therefore on the part of plaintiff-appellee Perez to allege in
43
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
her Complaint any unrealized income for the remaining period of
the Lease Contract considering that the possibility of defendant-appellant
Metrobank reconsidering its decision to terminate the said Lease
Contract and returning to the Leased Property at some future time was
not definitively foreclosed when the Complaint was filed. In light of her
predicament, plaintiff-appellee Perez was thus justified in just making a
general prayer for the court a quo to award unrealized income for the
"ensuing idle months" of the Leased Property.8 (italics in the original;
underscoring supplied)
The petition is partly meritorious.
In Manchester Development Corporation v. Court of Appeals,9 the Court
held that a pleading which does not specify in the prayer the amount
sought shall not be admitted or shall be expunged, and that a court
acquires jurisdiction only upon payment of the prescribed docket fee.
This rule was relaxed in Sun Insurance Office, Ltd. v. Asuncion10 which
was echoed in the 2005 case of Heirs of Bertuldo Hinog v. Melico, the
pertinent portion of the decision in the latter case reads:
Plainly, while the payment of prescribed docket fee is a jurisdictional
requirement, even its non-payment at the time of filing does not
automatically cause the dismissal of the case, as long as the fee is paid
within the applicable prescriptive or reglementary period, more so when
the party involved demonstrates a willingness to abide by the rules
prescribing such payment. Thus, when insufficient filing fees were initially
paid by the plaintiffs and there was no intention to defraud the
government, the Manchester rule does not apply.11 (emphasis and
underscoring supplied)
Metrobank takes exception to the application of Sun Insurance Office to
the present case because, by its claim, respondent deliberately
concealed the insufficient payment of docket fees.
Metrobank’s position fails. The ensuing months in which the leased
premises would be rendered vacant could not be determined at the time
of the filing of the complaint. It bears recalling that the building
constructed on respondent’s leased premises was specifically
constructed to house a bank, hence, the idle period before another
occupant with like business may opt to lease would be difficult to project.
On Metrobank’s raising the issue of lack of jurisdiction over the complaint
for respondent’s failure to pay the correct docket fees, apropos is the
ruling in National Steel Corporation v. Court of Appeals: 12
Although the payment of the proper docket fees is a jurisdictional
requirement, the trial court may allow the plaintiff in an action to pay the
same within a reasonable time before the expiration of the applicable
prescriptive or reglementary period. If the plaintiff fails to comply with this
requirement, the defendant should timely raise the issue of jurisdiction or
else he would be considered in estoppel. In the latter case, the balance
between the appropriate docket fees and the amount actually paid by the
plaintiff will be considered a lien on any award he may obtain in his
favor.13 (emphasis and underscoring supplied) 1avvph!1
Metrobank raised the issue of jurisdiction only before the appellate court
after it and its co-petitioner participated in the proceedings before the trial
court. While lack of jurisdiction may be raised at any time, a party may be
held in estoppel if, as in the present case, it has actively taken part in the
proceedings being questioned.
The foregoing disposition notwithstanding, respondent is liable for the
balance between the actual fees paid and the correct payable filing fees
to include an assessment on the award of unrealized income, following
Section 2 of Rule 141 which provides:
SEC. 2. Fees in lien. – Where the court in its final judgment awards a
claim not alleged, or a relief different from, or more than that claimed in
the pleading, the party concerned shall pay the additional fees which
shall constitute a lien on the judgment in satisfaction of said lien. The
clerk of court shall assess and collect the corresponding fee
(underscoring supplied),
and jurisprudence, viz:
The exception contemplated as to claims not specified or to claims
although specified are left for determination of the court is limited only to
any damages that may arise after the filing of the complaint or similar
pleading for then it will not be possible for the claimant to specify nor
speculate as to the amount thereof.14 (emphasis and underscoring
supplied)
44
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
A word on the grant of moral and exemplary damages and attorney’s SO ORDERED.
fees.

The Court notes that respondent’s witness-attorney-in-fact testified only

on the existence of the lease agreement and unrealized income due to
pre-termination. Since an award of moral damages is predicated on a
categorical showing from the claimant that emotional and mental
sufferings were actually experienced, absent any evidence thereon in the
present case,15 the award must be disallowed. And so too must the award
of attorney’s fees, absent an indication in the trial court’s Decision of the
factual basis thereof, the award having been merely stated in the
dispositive portion.16 Parenthetically, while respondent prayed in her
complaint for the award of attorney’s fees and testified during the trial
that:

Q: Now, in connection with the filing of this case and hiring your
lawyer, do you have agreement with your counsel with respect to
attorney’s fees?

A: P100,000.00 acceptance fees.

Q: What about appearance fees?

A: I forgot already, sir.,17

there is no showing that she submitted any documentary evidence in

support thereof.

WHEREFORE, the petition is in part GRANTED. The November 23, 2007

Decision of the Court of Appeals is MODIFIED. The Clerk of Court of the
Regional Trial Court of Malolos, Bulacan is ordered to reassess,
determine and collect additional fees that should be paid by respondent
within fifteen (15) days, in accordance with the foregoing discussion of
the Court, provided the applicable prescriptive or reglementary period
has not

yet expired, which additional fees shall constitute a lien on the judgment
in satisfaction of said lien. The award of moral and exemplary damages
and attorney’s fees is DELETED.

In all other respects, the appellate court’s Decision is AFFIRMED.

45
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
G.R. No. 89070 May 18, 1992
BENGUET ELECTRlC COOPERATIVE, INC., petitioner, vs. NATIONAL
LABOR RELATIONS COMMISSION, PETER COSALAN and BOARD
OF DIRECTORS OF BENGUET ELECTRIC COOPERATIVE, INC.,
* respondents.
Private respondent Peter Cosalan was the General Manager of Petitioner
Benguet Electric Cooperative, Inc. ("Beneco"), having been elected as
such by the Board of Directors of Beneco, with the approval of the
National Electrification Administrator, Mr. Pedro Dumol, effective 16
October 1982.
On 3 November 1982, respondent Cosalan received Audit Memorandum
No. 1 issued by the Commission on Audit ("COA"). This Memorandum
noted that cash advances received by officers and employees of
petitioner Beneco in the amount of P129,618.48 had been virtually written
off in the books of Beneco. In the Audit Memorandum, the COA directed
petitioner Beneco to secure the approval of the National Electrification
Administration ("NEA") before writing off or condoning those cash
advances, and recommended the adoption of remedial measures.
On 12 November 1982, COA issued another Memorandum — Audit
Memorandum No. 2 –– addressed to respondent Peter Cosalan, inviting
attention to the fact that the audit of per diems and allowances received
by officials and members of the Board of Directors of Beneco showed
substantial inconsistencies with the directives of the NEA. The Audit
Memorandum once again directed the taking of immediate action in
conformity with existing NEA regulations.
On 19 May 1983, petitioner Beneco received the COA Audit Report on
the financial status and operations of Beneco for the eight (8) month
period ended 30 September 1982. This Audit Report noted and
enumerated irregularities in the utilization of funds amounting to P37
Million released by NEA to Beneco, and recommended that appropriate
remedial action be taken.
Having been made aware of the serious financial condition of Beneco
and what appeared to be mismanagement, respondent Cosalan initiated
implementation of the remedial measures recommended by the COA.
The respondent members of the Board of Beneco reacted by adopting a
series of resolutions during the period from 23 June to 24 July 1984.
These Board Resolutions abolished the housing allowance of respondent
Cosalan; reduced his salary and his representation and commutable
allowances; directed him to hold in abeyance all pending personnel
disciplinary actions; and struck his name out as a principal signatory to
transactions of petitioner Beneco.
During the period from 28 July to 25 September 1984, the respondent
Beneco Board members adopted another series of resolutions which
resulted in the ouster of respondent Cosalan as General Manager of
Beneco and his exclusion from performance of his regular duties as such,
as well as the withholding of his salary and allowances. These
resolutions were as follows:
1. Resolution No. 91-4 dated 28 July 1984:
. . . that the services of Peter M. Cosalan as General
Manager of BENECO is terminated upon approval of the
National Electrification Administration;
2. Resolution No. 151-84 dated September 15, 1984;
. . . that Peter M. Cosalan is hereby suspended from his
position as General Manager of the Benguet Electric
Cooperative, Inc. (BENECO) effective as of the start of
the office hours on September 24, 1984, until a final
decision has been reached by the NEA on his dismissal;
. . . that GM Cosalan's suspension from office shall
remain in full force and effect until such suspension is
sooner lifted, revoked or rescinded by the Board of
Directors; that all monies due him are withheld until
cleared;
3. Resolution No. 176-84 dated September 25, 1984;
. . . that Resolution No. 151-84, dated September 15,
1984 stands as preventive suspension for GM Peter M.
Cosalan. 1
Respondent Cosalan nevertheless continued to work as General
Manager of Beneco, in the belief that he could be suspended or removed
only by duly authorized officials of NEA, in accordance with provisions of
P.D. No, 269, as amended by P.D. No. 1645 (the statute creating the
NEA, providing for its capitalization, powers and functions and
46
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
organization), the loan agreement between NEA and petitioner
Beneco 2 and the NEA Memorandum of 2 July 1980. 3 Accordingly, on 5
October and 10 November 1984, respondent Cosalan requested petitioner
Beneco to release the compensation due him. Beneco, acting through
respondent Board members, denied the written request of respondent
Cosalan.
Respondent Cosalan then filed a complaint with the National Labor
Relations Commission ("NLRC") on 5 December 1984 against
respondent members of the Beneco Board, challenging the legality of the
Board resolutions which ordered his suspension and termination from the
service and demanding payment of his salaries and allowances. On 18
February 1985, Cosalan amended his complaint to implead petitioner
Beneco and respondent Board members, the latter in their respective
dual capacities as Directors and as private individuals.
In the course of the proceedings before the Labor Arbiter, Cosalan filed a
motion for reinstatement which, although opposed by petitioner Beneco,
was granted on 23 October 1987 by Labor Arbiter Amado T. Adquilen.
Petitioner Beneco complied with the Labor Arbiter's order on 28 October
1987 through Resolution No. 10-90.
On 5 April 1988, the Labor Arbiter rendered a decision (a) confirming
Cosalan's reinstatement; (b) ordering payment to Cosalan of his
backwages and allowances by petitioner Beneco and respondent Board
members, jointly and severally, for a period of three (3) years without
deduction or qualification, amounting to P344,000.00; and (3) ordering
the individual Board members to pay, jointly and severally, to Cosalan
moral damages of P50,000.00 plus attorney's fees of ten percent (10%)
of the wages and allowances awarded him.
Respondent Board members appealed to the NLRC, and there filed a
Memorandum on Appeal. Petitioner Beneco did not appeal, but moved to
dismiss the appeal filed by respondent Board members and for execution
of judgment. By this time, petitioner Beneco had a new set of directors.
In a decision dated 21 November 1988, public respondent NLRC
modified the award rendered by the Labor Arbiter by declaring that
petitioner Beneco alone, and not respondent Board members, was liable
for respondent Cosalan's backwages and allowances, and by ruling that
there was no legal basis for the award of moral damages and attorney's
fees made by the Labor Arbiter.
Beneco, through its new set of directors, moved for reconsideration of the
NLRC decision, but without success.
In the present Petition for Certiorari, Beneco's principal contentions are
two-fold: first, that the NLRC had acted with grave abuse of discretion in
accepting and giving due course to respondent Board members' appeal
although such appeal had been filed out of time; and second, that the
NLRC had acted with grave abuse of discretion amounting to lack of
jurisdiction in holding petitioner alone liable for payment of the
backwages and allowances due to Cosalan and releasing respondent
Board members from liability therefor.
We consider that petitioner's first contention is meritorious. There is no
dispute about the fact that the respondent Beneco Board members
received the decision of the labor Arbiter on 21 April 1988. Accordingly,
and because 1 May 1988 was a legal holiday, they had only up to 2 May
1988 within which to perfect their appeal by filing their memorandum on
appeal. It is also not disputed that the respondent Board members'
memorandum on appeal was posted by registered mail on 3 May 1988
and received by the NLRC the following day. 4 Clearly, the memorandum
on appeal was filed out of time.
Respondent Board members, however, insist that their Memorandum on
Appeal was filed on time because it was delivered for mailing on 1 May
1988 to the Garcia Communications Company, a licensed private letter
carrier. The Board members in effect contend that the date of delivery to
Garcia Communications was the date of filing of their appeal
memorandum.
Respondent Board member's contention runs counter to the established
rule that transmission through a private carrier or letter-forwarder ––
instead of the Philippine Post Office –– is not a recognized mode of filing
pleadings. 5The established rule is that the date of delivery of pleadings to a
private letter-forwarding agency is not to be considered as the date of filing
thereof in court, and that in such cases, the date of actual receipt by the
court, and not the date of delivery to the private carrier, is deemed the date of
filing of that pleading. 6
There, was, therefore, no reason grounded upon substantial justice and
the prevention of serious miscarriage of justice that might have justified
the NLRC in disregarding the ten-day reglementary period for perfection
of an appeal by the respondent Board members. Accordingly, the
applicable rule was that the ten-day reglementary period to perfect an
47
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
appeal is mandatory and jurisdictional in nature, that failure to file an
appeal within the reglementary period renders the assailed decision final
and executory and no longer subject to review. 7 The respondent Board
members had thus lost their right to appeal from the decision of the Labor
Arbiter and the NLRC should have forthwith dismissed their appeal
memorandum.
There is another and more compelling reason why the respondent Board
members' appeal should have been dismissed forthwith: that appeal was
quite bereft of merit. Both the Labor Arbiter and the NLRC had found that
the indefinite suspension and termination of services imposed by the
respondent Board members upon petitioner Cosalan was illegal. That
illegality flowed, firstly, from the fact that the suspension of Cosalan was
continued long after expiration of the period of thirty (30) days, which is
the maximum period of preventive suspension that could be lawfully
imposed under Section 4, Rule XIV of the Omnibus Rules Implementing
the Labor Code. Secondly, Cosalan had been deprived of procedural due
process by the respondent Board members. He was never informed of
the charges raised against him and was given no opportunity to meet
those charges and present his side of whatever dispute existed; he was
kept totally in the dark as to the reason or reasons why he had been
suspended and effectively dismissed from the service of Beneco Thirdly,
respondent Board members failed to adduce any cause which could
reasonably be regarded as lawful cause for the suspension and dismissal
of respondent Cosalan from his position as General Manager of Beneco.
Cosalan was, in other words, denied due process both procedural and
substantive. Fourthly, respondent Board members failed to obtain the
prior approval of the NEA of their suspension now dismissal of Cosalan,
which prior approval was required, inter alia, under the subsisting loan
agreement between the NEA and Beneco. The requisite NEA approval
was subsequently sought by the respondent Board members; no NEA
approval was granted.
In reversing the decision of the Labor Arbiter declaring petitioner Beneco
and respondent Board members solidarily liable for the salary,
allowances, damages and attorney's fees awarded to respondent
Cosalan, the NLRC said:
. . . A perusal of the records show that the members of the Board
never acted in their individual capacities. They were acting as a
Board passing resolutions affecting their general manager. If
these resolutions and resultant acts transgressed the law, to then
BENECO for which the Board was acting in behalf should bear
responsibility. The records do not disclose that the individual
Board members were motivated by malice or bad faith, rather, it
reveals an intramural power play gone awry and
misapprehension of its own rules and regulations. For this
reason, the decision holding the individual board members jointly
and severally liable with BENECO for Cosalan's backwages is
untenable. The same goes for the award of damages which does
not have the proverbial leg to stand on.
The Labor Arbiter below should have heeded his own observation
in his decision —
Respondent BENECO as an artificial person could not
have, by itself, done anything to prevent it. But because
the former have acted while in office and in the course of
their official functions as directors of BENECO, . . .
Thus, the decision of the Labor Arbiter should be modified
conformably with all the foregoing holding BENECO solely liable
for backwages and releasing the appellant board members from
any individual liabilities. 8 (Emphasis supplied)
The applicable general rule is clear enough. The Board members and
officers of a corporation who purport to act for and in behalf of the
corporation, keep within the lawful scope of their authority in so acting,
and act in good faith, do not become liable, whether civilly or otherwise,
for the consequences of their acts, Those acts, when they are such a
nature and are done under such circumstances, are properly attributed to
the corporation alone and no personal liability is incurred by such officers
and Board members. 9
The major difficulty with the conclusion reached by the NLRC is that the
NLRC clearly overlooked or disregarded the circumstances under which
respondent Board members had in fact acted in the instant case. As
noted earlier, the respondent Board members responded to the efforts of
Cosalan to take seriously and implement the Audit Memoranda issued by
the COA explicitly addressed to the petitioner Beneco, first by stripping
Cosalan of the privileges and perquisites attached to his position as
General Manager, then by suspending indefinitely and finally dismissing
Cosalan from such position. As also noted earlier, respondent Board
members offered no suggestion at all of any just or lawful cause that
could sustain the suspension and dismissal of Cosalan. They obviously
wanted to get rid of Cosalan and so acted, in the words of the NLRC
48
 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
itself, "with indecent haste" in removing him from his position and denying
him substantive and procedural due process. Thus, the record showed
strong indications that respondent Board members had illegally
suspended and dismissed Cosalan precisely because he was trying to
remedy the financial irregularities and violations of NEA regulations which
the COA had brought to the attention of Beneco. The conclusion reached
by the NLRC that "the records do not disclose that the individual Board
members were motivated by malice or bad faith" flew in the face of the
evidence of record. At the very least, a strong presumption had arisen,
which it was incumbent upon respondent Board members to disprove,
that they had acted in reprisal against respondent Cosalan and in an
effort to suppress knowledge about and remedial measures against the
financial irregularities the COA Audits had unearthed. That burden
respondent Board members did not discharge.
The Solicitor General has urged that respondent Board members may be
held liable for damages under the foregoing circumstance under Section
31 of the Corporation Code which reads as follows:
Sec. 31. Liability of directors, trustees or officers. — Directors or
trustees who willfully and knowingly vote for or assent to patently
unlawful acts of the corporation or who are guilty of gross
negligence or bad faith in directing the affairs of the corporation or
acquire any personal or pecuniary interest in conflict with their
duty as such directors or trustees shall be jointly liable and
severally for all damages resulting therefrom suffered by the
corporation, its stockholders or members and other persons . . .
(Emphasis supplied)
We agree with the Solicitor General, firstly, that Section 31 of the
Corporation Code is applicable in respect of Beneco and other electric
cooperatives similarly situated. Section 4 of the Corporation Code
renders the provisions of that Code applicable in a supplementary
manner to all corporations, including those with special or individual
charters so long as those provisions are not inconsistent with such
charters. We find no provision in P.D. No. 269, as amended, that would
exclude expressly or by necessary implication the applicability of Section
31 of the Corporation Code in respect of members of the boards of
directors of electric cooperatives. Indeed, P.D. No. 269 expressly
describes these cooperatives as "corporations:"
Sec. 15. Organization and Purpose. — Cooperative non-stock,
non-profit membership corporations may be organized,
and electric cooperative corporations heretofore formed or
registered under the Philippine non-Agricultural Co-operative Act
may as hereinafter provided be converted, under this Decree for
the purpose of supplying, and of promoting and encouraging-the
fullest use of, service on an area coverage basis at the lowest
cost consistent with sound economy and the prudent
management of the business of such corporations. 10 (Emphasis
supplied)
We agree with the Solicitor General, secondly, that respondent Board
members were guilty of "gross negligence or bad faith in directing the
affairs of the corporation" in enacting the series of resolutions noted
earlier indefinitely suspending and dismissing respondent Cosalan from
the position of General Manager of Beneco. Respondent Board
members, in doing so, acted belong the scope of their authority as such
Board members. The dismissal of an officer or employee in bad faith,
without lawful cause and without procedural due process, is an act that
is contra legem. It cannot be supposed that members of boards of
directors derive any authority to violate the express mandates of law or
the clear legal rights of their officers and employees by simply purporting
to act for the corporation they control.
We believe and so hold, further, that not only are Beneco and respondent
Board members properly held solidarily liable for the awards made by the
Labor Arbiter, but also that petitioner Beneco which was controlled by
and which could act only through respondent Board members, has a right
to be reimbursed for any amounts that Beneco may be compelled to pay
to respondent Cosalan. Such right of reimbursement is essential if the
innocent members of Beneco are not to be penalized for the acts of
respondent Board members which were both done in bad faith and ultra
vires. The liability-generating acts here are the personal and individual
acts of respondent Board members, and are not properly attributed to
Beneco itself.
WHEREFORE, the Petition for Certiorari is GIVEN DUE COURSE, the
comment filed by respondent Board members is TREATED as their
answer, and the decision of the National Labor Relations Commission
dated 21 November 1988 in NLRC Case No. RAB-1-0313-84 is hereby
SET ASIDE and the decision dated 5 April 1988 of Labor Arbiter Amado
T. Adquilen hereby REINSTATED in toto. In addition, respondent Board
members are hereby ORDERED to reimburse petitioner Beneco any
amounts that it may be compelled to pay to respondent Cosalan by virtue
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of the decision of Labor Arbiter Amado T. Adquilen. No pronouncement
as to costs.

SO ORDERED.

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G.R. No. L-27331 : July 30, 1981
ELISEO ALIMPOOS, CIRIACA ALIMPOOS, SGT. MILLARDO M.
PATES, PEDRO BACLAY, CATALINO YAMILO, RAFAEL
CAPANGPANGAN, DALMACIO YGOT and EUFROCINA ESTORES,
Petitioners, vs. THE HONORABLE COURT OF APPEALS,
HONORABLE JUDGE MONTANO A. ORTIZ, REYNALDO MOSQUITO
and MATILDE ABASTILLAS MOSQUITO, Respondents.
Petitioner-spouses, Eliseo Alimpoos and Ciriaca Alimpoos, shall
hereinafter be called the Offended Parties. Petitioners Pedro Baclay,
Catalino Yamilo, Rafael Capangpangan, Dalmacio Ygot, Eufrocina
Estores and Sgt. Millardo M. Pates may hereinafter be referred to as the
Witnesses.
Respondent Reynaldo Mosquito will hereinafter be called the Accused.
Respondent Matilde A. Mosquito is the Accused’s wife. Respondent
Court of Appeals will be termed the Appellate Tribunal; respondent Judge
Montano A. Ortiz, as respondent Trial Judge, and the Municipal Judge,
as such.
In this Petition for Certiorari, the Offended Parties and the Witnesses
seek the reversal of the Decision of the Appellate Tribunal, upholding the
disallowance of the Offended Parties’ appeal by the Court of First
Instance of Agusan cranad(the Trial Court, for short) in Civil Case No.
1088, entitled “Reynaldo Mosquito, et al. vs. Eliseo Alimpoos, et al,”
wherein respondent Trial Judge granted the Accused’s petition for
Habeas Corpus and declared his detention illegal. He also enjoined the
prosecution of Criminal Case No. 458 of the Municipal Court of Bayugan,
Agusan cranad(hereinafter called Criminal Case) where the Accused had
been arrested.
The Accused was detained by the Chief of Police of Bayugan, Agusan,
by virtue of a Warrant of Arrest issued by the Municipal Judge in the
Criminal Case, which was a prosecution for Robbery with Less Serious
Physical Injuries. The place allegedly robbed belonged to the Offended
Parties. Contending that the Warrant was issued without the observance
of the legal requirements for the issuance thereof, the Accused, then
detained, and his wife instituted the Habeas Corpus case before the Trial
Court. Named as defendants in the original complaint were the Offended
parties and the Witnesses cranad(as witnesses for the prosecution) all of
whom are residents of Agusan. In an amended complaint, the two
arresting policemen, the Chief of Police, and the Municipal Judge were
added as co-defendants.
The Complaint of the Accused was premised on the alleged violation of
Article 32 cranad(4),cranad(8), cranad(15), cranad(16), cranad(17)
and cranad(19) of the Civil Code, and Article 269 of the Revised Penal
Code, by defendants therein who were said to have been instrumental in
causing the detention and arrest of the Accused. It prayed for the
Accused’s release from detention, as well as for the issuance of a Writ of
Preliminary Injunction to enjoin the Offended Parties and the Witnesses,
and the Municipal Judge and/or their representatives, from proceeding
with the Criminal Case. Actual, moral and exemplary damages, attorney’s
fees, and costs were also prayed for.
The Offended Parties and the Witnesses, except Sgt. Pates, were
represented by the law firm of Seno, Mendoza and Associates, with
offices located in Cebu City. They contended that they had nothing to do
with the Accused’s detention and arrest. The Municipal Judge, the Chief
of Police, and Patrolmen Libres and Galimba, who were represented by
the Acting Provincial Fiscal of Butuan City, alleged that the Warrant of
Arrest was validly issued. Sgt. Pates was represented by Capt. Igualdad
Cunanan, and reiterated substantially the same defense.
After due hearing in the Habeas Corpus case, respondent Trial Judge
issued the appealed Order cranad(the ORDER, for short), dated March
26, 1966, declaring the detention of the Accused illegal and granting the
Writ of Habeas Corpus as well as the Preliminary Injunction prayed for
upon the filing of the required bond. The dispositive portion of the
ORDER reads:
“WHEREFORE, judgment is hereby rendered declaring illegal the
detention of plaintiff Reynaldo Mosquito by virtue of a warrant of
arrest issued without the observance of the fundamental legal
requirements prior to the issuance of said Writ. The petition for
habeas corpus is therefore granted and it is hereby ordered that
said detention prisoner be forthwith released from custody, and
set at liberty and that upon the filing of the bond in the amount of
P1,000.00 a writ of preliminary injunction issue restraining the
Municipal Judge of Bayugan, Agusan, defendant Vicente Galicia
and the rest of the defendants, their attorneys, agents or
representatives from proceeding with Criminal Case No. 458
entitled ‘The People of the Philippines versus Reynaldo Mosquito
et als.’, for the crime of Robbery with Less Serious Physical
Injuries, with costs against the defendants in these habeas
corpus and preliminary injunction proceedings.
SO ORDERED.” 1
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The Acting Provincial Fiscal of Agusan received copy of said ORDER on
March 31, 1966, and on April 1, 1966, moved for extension of time within
which to appeal, but eventually desisted from doing so.
On April 4, 1966, counsel for the Offended Parties and the Witnesses
mailed from Cebu City a Notice of Appeal to the Court of Appeals stating
that:
“Undersigned counsel received a copy of the order only
today cranad(April 4, 1966) which copy was handed to him by
defendant cranad(petitioner) Eliseo Alimpoos.”
The appeal was opposed by the Accused on the ground that it was filed
beyond the 48-hour reglementary period within which to perfect an
appeal in Habeas Corpus proceedings.
On April 23, 1966, over the Offended Parties’ objections, respondent Trial
Judge dismissed their appeal thus:
“The notice of appeal of the Provincial Fiscal or of Atty. Seno for
the defendants, having been filed out of time the Order of March
26, 1966 granting the habeas corpus is now final and executory.
The urgent ex-parte motion to grant extension to file notice of
appeal does not interrupt the running of the period fixed by law for
filing an appeal which is forty-eight hours from receipt of the
order.” 2
No reconsideration was prayed for by the Provincial Fiscal.
The Offended Parties, however, resorted to a Mandamus proceeding
before the Court of Appeals seeking to compel respondent Trial Judge to
give due course to said appeal.
On January 11, 1967, the Appellate Tribunal, 3 in CA-G.R. No. 37781-R,
denied Mandamus stating in part:
“As the records show that copy of the questioned Order was
received by counsel on March 30, 1966, the notice of appeal was
not filed within the 48-hour limit. Petitioners’ appeal was therefore
filed out of time and the judgment has become final.
“In view of the foregoing, this petition is hereby denied. Costs
against petitioners.”
Hence, this Petition for Certiorari, filed on March 13, 1967, praying that
the Decision of the Appellate Tribunal be set aside and the appeal
interposed by the Offended Parties in the Habeas Corpus case be
allowed.
We gave due course to the Petition on March 31, 1967, and after the
filing of the respective Briefs, the case was considered submitted for
decision on April 19, 1968.
The Offended Parties and the Witnesses pose the following Assignments
of Error:
“I
The Honorable Court of Appeals erred in finding that ‘counsel,’
however, has not presented a shred of proof to bolster his claim
of actual receipt of the order, Annex ‘B’ on April 4, 1966, save of
his own self-serving assertions, which cannot prevail over the
court record, cranad(Annex 1 of Answer) certified to by the Clerk
of Court, bearing the true actual date when the parties and
counsel herein received their corresponding copies. The same
certified true copy of the order shows that the law office of herein
counsel received its copy on March 30, 1966 not on April 4, 1966;
II
The Honorable Court of Appeals erred in holding that ‘respondent
Judge was fully justified in relying on its own record to determine
the date on which petitioners’ counsel received copy of the order,
without any proof thereof, because courts will take judicial notice
of its records and of the facts which the same records establish
and which are known to judges by reason of their judicial
functions.’
III
The Honorable Court of Appeals erred in finding that ‘as the
records show that copy of the questioned order was received by
counsel on March 30, 1966, the notice of appeal was not filed
within the 48-hour limit.’
IV
The Honorable Court of Appeals erred in finding that ‘petitioners’
appeal was, therefore, filed out of time and the judgment has
become final.’
V
The Honorable Court of Appeals erred in denying the Motion for
Reconsideration without requiring the adverse party to answer the
said Motion for Reconsideration.
VI
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The Honorable Court of Appeals erred in failing to pass upon the Pedro Baklay
issues raised in the lower court and in the Court of Appeals.” Catalino Yamilo
Rafael Capangpangan
The technical issue of timeliness of the appeal will first be considered.
Dalmacio Ygot
Counsel for the Offended Parties alleges that he received a copy of the
Eufrocina Estores
ORDER only on April 4, 1966 from the Offended Party, Eliseo Alimpoos,
who handed him the copy in Cebu City. The latter had received it on
By: cranad(Sgd.) Eliseo Alimpoos
March 31, 1966. Counsel contends that the reglementary period to
March 31, 1966
appeal can not be reckoned from the latter date because, under the
(Sgd.) Illegible
Rules, when a party is represented by counsel, notice should be sent, not
cranad(Sgd.) Illegible
to the party, but to his counsel of record. Counsel for the Offended
Parties and the Witnesses further maintains that the period from which to
For the Chief of Police 3-30-66
reckon the period of appeal should actually be April 14, 1966 when he
TO ATTYS. SENO, MENDOZA,
actually received, through the mails, his copy of the ORDER, as shown
RUIZ & ASS. & CAPT. CUNANAN
by the rubber stamp of his office appearing on the upper right hand
corner of a duplicate copy of the ORDER. 4
BY REG. MAIL #11633 & #11634
Respondent Trial Judge and the Appellate Tribunal alike found the
foregoing assertion self-serving and relied instead on the last page of the A certified true copy:
ORDER, 5 purportedly showing that the law office of counsel for the (s) MACARIO C. CONDE
Offended Parties and the Witnesses received its copy on March 30, 1966 (t) MACARIO C. CONDE
and not on April 4, 1966, hence the disallowance of the appeal by Clerk of Court” 6 (emphasis supplied)
respondent Trial Judge, and its affirmance by the Appellate Court.
Obviously, copies of the ORDER intended for “Attys. Seno, Mendoza,
The crucial last page is reproduced hereunder exactly as it appears:
Ruiz& Ass. & Capt. Cunanan” were sent by registered mail with Receipts
“CIVIL CASE NO. 1088 Nos. 11633 and 11634. Receipt No. 11633 is the registry number
ORDER corresponding to the copy for the law office, and Receipt No. 11634 that
—5— for Capt. Cunanan. This is borne out by the envelope 7 from the “Office
and preliminary injunction proceedings. of the Clerk of Court Butuan City” addressed to “Seno, Mendoza, Ruiz
SO ORDERED. and Associates, Cor. Magallanes-D Jakosalem Sts., Aboitiz Bldg., Cebu
Done this 26th day of March, 1966 at the City of Butuan. City” with the following markings:
(SGD.) MONTANO A. ORTIZ
On the face of the envelope lower left hand corner:
JUDGE
MAO-bb. “REGISTERED
Recd. CITY OF BUTUAN
31/3/66 (initial) PHILIPPINES

Received: March 31, 1966

(Sgd.) Illegible Mun. Judge cranad(Sgd.) Illegible 3/30/66 7:00
evening Superimposed on it in ink is “No. 11633”
3/31/66 cranad(Sgd.) B. Galimba 3/30/00 7:00 On the back of the envelope appears a big diagonal stamp “FOR
cranad(Sgd.) Eliseo Alimpoos OFFICIAL USE ONLY” and two post office stamp marks:
“REGISTERED
Received copy March 31, 1966 8:00 A.M. CITY OF BUTUAN
Ciriaco Alimpoos
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PHILIPPINES
March 31, 1966
“CEBU CITY
Received
April 11, 1966
Philippines
Since the registered mail was received in Cebu City only on April 11,
1966, it is not unlikely that the law office and addressee, as alleged by it,
received the mail only three days after, or on April 14, 1966.
The notation
“(Sgd.) Illegible
3-30-66”
appearing above the following note:
“To Attys. Seno, Mendoza, Ruiz & Ass. &
Capt. Cunanan by reg. mail #11633 & #11634”
can not refer to personal receipt by the said law office for the obvious
reason that its office being at Cebu City, personal service would not have
been possible in Agusan.
It is apparent then that both respondent Trial Judge and the Appellate
Tribunal committed error in holding that the Offended Parties’ appeal was
interposed beyond the reglementary period. Service on the Offended
Party, Eliseo Alimpoos, on March 31, 1966 cannot be deemed as notice
in law to his counsel. 8 Under the circumstances, therefore, reliance may
be placed on the assertion of counsel that the Offended Party, Eliseo
Alimpoos, had given him a copy of the ORDER only on April 4, 1966,
which must be deemed as the date of notice to said counsel of the
ORDER. Counsel lost no time in mailing his Notice of Appeal on the
same day, April 4, 1966 from Cebu. 9 Procedurally, the appeal was
seasonably filed.
Although the Appellate Tribunal had committed error in its appreciation of
the date when the lawyers of the Offended Parties were served notice of
the ORDER, we believe it would not be justifiable to reverse and to direct
respondent Trial Judge to allow the Offended Parties to appeal. Instead,
we are opting to render a practical judgment.
1. The original and amended complaints filed by the Offended Parties
with the Trial Court contained three causes of action, principally for
Habeas Corpus and for damages. However, the proceedings were
conducted purely as a Habeas Corpus case. The original complaint was
filed on February 22, 1966, and resolved on March 26, 1966, in keeping
with the “speedy and effectual” character of Habeas Corpus proceedings.
10
The ORDER treated the case as exclusively a Habeas Corpus
proceeding, ignoring the Accused’s prayer for damages. The lawyers of
the Offended Parties attempted to appeal from the ORDER in
accordance with Section 19 of Rule 41, captioned “who may appeal in
Habeas Corpus cases.” The Appellate Tribunal resolved in the
mandamus case as relating to a Habeas Corpus case.
2. Because the proceedings before the trial Court was a Habeas Corpus
case, the complaint filed was obviously defective. A Habeas Corpus
proceeding is not a suit between parties.
“Not a suit between the parties. — While the issuance of the writ is to all
intents and purposes the commencement of a civil action, a suit, yet
technically the proceedings by Habeas Corpus is in no sense a suit
between private parties. It is an inquisition by the government, at the
suggestion and instance of an individual, most probably, but still in the
name and capacity of the sovereign. It may be analogized to a
proceeding in rem and instituted for the sole purpose of fixing the status
of a person. The person restrained is the central figure in the transaction.
The proceeding is instituted solely for his benefit. As it is not designed to
obtain redress against anybody, and as no judgment can be entered
against anybody, and as there is no real plaintiff and defendant, there
can be no suit in the technical
sense.” chanroblesvirtualawlibrary(Extraordinary Legal Remedies,
Forrest G. Ferris & Forrest G. Ferris, Jr., p. 28)
The Accused, therefore, should have limited his complaint against the
Chief of Police of Bayugan, the person having him in alleged illegal
custody. That is the clear implication in the following provisions of Section
3, Rule 102, which enumerates what should be set forth in a petition for
Habeas Corpus:
“SEC. 3. Requisites of application therefor. — Application for the
writ shall be by petition signed and verified either by the party for
whose relief it is intended, or by some person on his behalf, and
shall set forth:
(a) That the person in whose behalf the application is made is
imprisoned or restrained of his liberty;
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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
(b) The officer or name of the person by whom he is so
imprisoned or restrained; or, if both are unknown or
uncertain, such officer or person may be described by an
assumed appellation, and the person who is served with
the writ shall be deemed the person intended;
(c) The place where he is so imprisoned or restrained, if
known;
(d) A copy of the commitment or cause of detention of such
person, if it can be procured without impairing the
efficiency of the remedy; or, if the imprisonment or
restraint is without any legal authority, such fact shall
appear.”
The Accused’s allegation as to, and prayer for, damages was out of
place. In Habeas Corpus cases, the judgment in favor of the applicant
cannot contain a provision for damages. It has to be confined to what is
provided for in Section 15, Rule 102, which reads:
“SEC. 15. When prisoner discharged if no appeal. — When the
court or Judge has examined into the cause of caption and
restraint of the prisoner, and is satisfied that he is unlawfully
imprisoned or restrained, he shall forthwith order his discharge
from confinement, but such discharge shall not be effective until a
copy of the order has been served on the officer or person
detaining the prisoner. If the officer or person detaining the
prisoner does not desire to appeal, the prisoner shall be forthwith
released.”
It will be observed that there is no provision for serving copy of the
discharge on any other private party defendant, nor for an award of
damages.
As it has been held:
“The sole function of the writ is to relieve from unlawful
imprisonment, and ordinarily it cannot properly be used for any
other purpose. Thus it has been held that the writ cannot properly
be used: To enforce a right to service; to determine whether a
person has committed a crime; in determine a disputed interstate
boundary line; to punish respondent or to afford the injured
person redress, for the illegal detention; to recover damages or
other money award; .cra .” chanroblesvirtualawlibrary(emphasis
supplied) cranad(Vt — In re St. Onge, 108 A203, 93 Vt. 373; NY
— People vs. Prior, 182 NYS 577, 112 Misc. 208 [39 C.J.S. 430]).
3. The Accused has challenged the personality of the Offended Parties to
interpose the appeal, premised on Section 19 of Rule 41 of the Rules of
Court, which provides:
SEC 19. Who may appeal in habeas corpus cases. — The appeal
in habeas corpus cases may be taken in the name of the person
detained or of the officer or person detaining him. But if the
detention is by reason of civil proceedings the party in interest or
the person who caused the detention shall be entitled to control
the appeal; and if, by virtue of criminal proceedings, the provincial
fiscal or the city fiscal as the case may be, is entitled to control
the appeal on behalf of the government, subject to the right of the
Solicitor General to intervene” chanroblesvirtualawlibrary(Rule
41).
It is indisputable that the Habeas Corpus case arose by virtue of criminal
proceedings in the Criminal case. Pursuant to the aforequoted provision,
therefore, it was the Provincial Fiscal who was entitled to control the
appeal on behalf of the Government. In this case, although the Provincial
Fiscal of Agusan, filed a “Motion for Extension of Time to Perfect Appeal”
on April 1, 1966, he had nevertheless abandoned the same. Neither did
he take steps for the reconsideration of respondent Trial Judge’s Order of
April 23, 1966 dismissing the appeal. The inaction of the Fiscal may be
deemed to have been an admission on his part of the unmeritoriousness
of an appeal. As in criminal proceedings, his sound discretion on the
matter should be deemed controlling, and it has to be held that the
Offended Parties were bereft of personality to prosecute the appeal.
Noteworthy is the fact that in the instant case, the Offended Parties had
alleged in their Answer 11 that they were not detaining the Accused and
had nothing to do with the Warrant of Arrest issued against him. With all
the more reason then that they had no personality to interpose an appeal
from a judicial Order granting the Writ of Habeas Corpus and ordering the
release of a person detained.
4. It has been noted that the ORDER contains a provision enjoining the
prosecution of the Accused in the Criminal Case. That is error. If the
Accused was illegally detained because he was arrested without a
preliminary examination, what should have been done was to set aside
the warrant of arrest and order the discharge of the Accused, but without
enjoining the Municipal Judge from conducting a preliminary examination
and afterwards properly issuing a warrant of arrest. Habeas Corpus
proceedings are not meant to determine criminal responsibility. This
principle was enunciated in Lee Ching v. Collector of Customs, 33 Phil.
329 cranad(1916) where it was said:
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 CIVIL PROCEDURE CASES – Default (§3, Rule 9), Payment of Docket Fees and Modes of Service (§ 5-14, Rule 13)
“Proceedings in habeas corpus are separate and distinct from the
main case from which the proceedings spring. They rarely, if
ever, touch the merits of the case and require no pronouncement
with respect thereto.”
When a preliminary investigation is not held, or is improperly held, the
procedure is not to dismiss the case, or enjoin its prosecution, but to
have the preliminary investigation conducted. As stated in People v.
Figueroa, 27 SCRA, 1239, 1247cranad(1969):
“Assuming that the trial court felt that the accused should have
been given more ‘ample chance and opportunity to be heard in
the preliminary investigation,’ then what it could properly have
done, since in its own Order it recognized that Fiscal Abaca had
conducted a preliminary investigation although ‘hurriedly’ in its
opinion, was not to dismiss the information but to hold the case in
abeyance and conduct its own investigation or require the fiscal
to hold a reinvestigation. This Court, speaking through now Mr.
Chief Justice Concepcion in People vs. Casiano, had stressed
this as the proper procedure, pointing out that ‘the absence of
such investigation did not impair the validity of the information or
otherwise render it defective. Much less did it affect the
jurisdiction of the Court of First Instance over the present case.’“
5. As a matter of fact, Habeas Corpus was not the proper remedy for the
Accused. In a case where a warrant of arrest was assailed for an alleged
improper preliminary examination, this Court, in Luna v. Plaza, 26 SCRA,
310, 323 cranad(1968), said:
“At any rate, we believe that, if at all, the remedy available to the
petitioner herein, under the circumstances stated in this opinion,
is not a petition for a writ of habeas corpus but a petition to quash
the warrant of arrest or a petition for reinvestigation of the case by
the respondent Municipal Judge or by the Provincial Fiscal.”
It is the general rule that Habeas Corpus should not be resorted to when
there is another remedy available.
“As a general rule, a writ of habeas corpus will not be granted
where relief may be had or could have been procured by resort to
another general remedy, such as appeal or writ of error. But the
existence of another remedy does not necessarily preclude a
resort to the writ of habeas corpus to obtain relief from illegal
detention, especially where the other remedy is deemed not to be
as effective as that of habeas corpus.” 12
Time and again, it has been explained that Habeas Corpus cannot
function as a writ of error. 13
6. It has further been noted that respondent Trial Judge erred in
adjudging “costs” against defendants in the Habeas Corpus case. “When
a person confined under color of proceedings in a criminal case is
discharged, the costs shall be taxed against the Republic” 14
7. The Accused was charged with Robbery with Less Serious Physical
Injuries in early 1966. Through the error of the Municipal Judge in issuing
the warrant of arrest without conducting a preliminary examination, the
Accused was able to institute the Habeas Corpus case which has pended
to this date, or for fifteen years. The error of the Municipal Judge has
considerably retarded the turning of the wheels of justice. It should be
meet to reiterate the following admonition made in the aforecited Luna-
Plaza case:
“We wish to stress, however, that what has been stated in this
opinion is certainly not intended to sanction the return to the
former practice of municipal judges of simply relying upon
affidavits or sworn statements that are made to accompany the
complaints that are filed before them, in determining whether
there is a probable cause for the issuance of a warrant of arrest.
That practice is precisely what is sought to be voided by the
amendment of Section 87 cranad(c) of Republic Act
296 cranad(Judiciary Act of 1948) which requires that before a
municipal judge issues a warrant of arrest he should first satisfy
himself that there is a probable cause by examining the witnesses
personally, and that the examination must be under oath and
reduced to writing in the form of searching questions and
answers. It is obvious that the purpose of this amendment is to
prevent the issuance of a warrant of arrest against a person
based simply upon affidavits of witnesses who made, and swore
to, their statements before a person or persons other than the
judge before whom the criminal complaint is filed. We wish to
emphasize strict compliance by municipal or city judges of the
provision of Section 87(c) of the Judiciary Act of 1948, as
amended by Republic Act 3828, in order to avoid malicious
and/or unfounded criminal prosecution of persons.”
In view of the foregoing considerations, it should be practical to resolve
this case in a manner that will not further protract the matter brought to
this instance. It will not do merely to reverse and set aside the appealed
decision of the Appellate Tribunal, for it will leave the ORDER of
respondent Trial Judge outstanding with its injunction against the further
prosecution of the Criminal Case.
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WHEREFORE, in the distinct understanding that this Court has not acted
in a proper Habeas Corpus proceeding, the Warrant of Arrest issued
against Reynaldo Mosquito in Criminal Case No. 458 of the Municipal
Court of Bayugan, Agusan, the Order of March 26, 1966 issued in Civil
Case No. 1088 of the Court of First Instance of Agusan, as well as the
Decision of the Court of Appeals in its case CA-G.R. No. 37781-R, are
hereby set aside; and the proceedings in the last two cases mentioned
are invalidated.
Without pronouncement as to costs.
SO ORDERED.

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G.R. No. L-58781 July 31, 1987
TEOFILO MAGNO, ISIDRO CABATIC, HERMINIO CABATIC,
FELICITAS CABATIC, Assisted by her husband, JOSE CARINO,
TOMAS MAGNO, ELPIDIO MAGNO, AURORA MAGNO, Assisted by
her husband, ODELON BUGAYONG, NICANOR MAGNO and LOLITA
MAGNO, petitioners, vs.HONORABLE COURT OF APPEALS, GAVINO
MAGNO, NICETAS MAGNO, and NAZARIA MAGNO, Assisted by her
husband, SIMEON DE GUZMAN, respondents.
This is a special civil action for certiorari seeking to declare void ab
initio the Resolution of respondent Court of Appeals dated September 22,
1981 which ordered the issuance of an Entry of Judgment in CA-G.R. No.
52655-R. The petition also prays for the issuance of a preliminary
injunction to temporarily maintain the status quo by ordering the
provincial sheriff of the province of Pangasinan to desist from enforcing
the writ of execution issued in Civil Case No. A-413 pursuant to the said
Entry of Judgment.
Civil Case No. A-413 is an action for Partition of Certain Properties and
for Damages, filed by private respondents against petitioners in the Court
of First Instance of Pangasinan, Branch VII thereof. In a Decision* dated
October 5, 1972, the lower court ordered the partition of the properties
subject of the complaint in accordance with the schedule therein
appearing. It also ordered the petitioners to pay jointly and severally unto
the private respondents the amount of P3,000.00 as attorney's fees.
Petitioners appealed to the Court of Appeals which appeal was docketed
as CA-G.R. No. 52655-R. On June 30, 1981, the said court promulgated
its Decision** affirming the decision of the lower court.
Notice of the decision was sent to petitioners' counsel Atty. Atinidoro B.
Sison at his given mailing address which is 33 B.M.A. Ave., Tatalon,
Quezon City. The same, however, was returned to the court with the
certification of the postmaster — "Return to sender, Reason — moved."
On September 14, 1981, respondent Court of Appeals issued the
following Resolution: —
Considering that the copy of Decision dated June 30, 1981
addressed to Atty. Atinidoro B. Sison of 33 B.M.A. Tatalon,
Quezon City, counsel for the appellants was returned unclaimed
with the notation on the envelope "MOVED", the Court Resolved
to resend the said copy of the Decision to the appellants
themselves at Alaminos, Pangasinan, and the appellants are
hereby informed that the fifteen (15) days period within which to
file for reconsideration will be counted from the receipt of the
decision herewith attached. (Annex "5-A" p. 54, Rollo).
A copy of this Resolution was sent to petitioners themselves addressed
as follows — Mr. Teofilo Magno et al., Patricio, Alaminos, Pangasinan. It
is not disputed that this address is the address on record of petitioners.
But again the enveloped addressed to them was returned to the court
with the notation — deceased.
On September 22, 1981, the respondent court issued its now assailed
Resolution ordering the issuance of the entry of judgment.
Petitioners' motion for reconsideration was denied hence, they filed the
present petition, which We find to be without merit.
It is well-settled that when a party is represented by counsel, notice
should be made upon the counsel of record at his given address to which
notices of all kinds emanating from the court should be sent in the
absence of a proper and adequate notice to the court of a change of
address. (Cubar vs. Mendoza, 120 SCRA 768). lawph!1
In the case now before Us, the records show that the notice and copy of
the decision of respondent Court of Appeals were sent to petitioners's
counsel of record Atty. Atinidoro E. Sison at his given mailing address
which is 33 B.M.A. Avenue, Tatalon, Quezon City. The first notice to him
by the Postmaster to claim his mail was on July 9, 1981. The rule is that
service of notice becomes effective at the expiration of the five-day
period upon failure of the addresse to claim his mail within five (5) days
from the date of first notice Sec. 8, Rule 13 Rules of Court (Feraren vs.
Santos, 113 SCRA 707). Therefore in this case the service became
effective five days after July 9, 1981 which is July 14, 1981. The decision
became final on August 13, 1981. A xerox copy of the said envelope
properly addressed appears on page 52 of the Rollo. This fact is further
shown by the certification issued by the then Acting Clerk of the Court of
Appeals, Atty. Cesar M. Marzan. (p. 51, Rollo). If Atty. Sison moved to
another address without informing the respondent of his change of
address the omission or neglect will not stay the finality of the decision.
The notice sent to petitioners themselves, under the circumstances is not
even necessary. (Francisco vs. Puno, 108 SCRA 427). It may be stated
though that while petitioners claim that Teofilo Magno to whom the notice
to the petitioners was addressed is already dead, it is not explained why
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their present petition before this Court still includes the name Teofilo
Magno. There is no indication in the record that he has been duly
substituted by his legal representative.
The decision in this case having become final on July 29, 1981, there
being no appeal taken therefrom, respondent court committed no error in
issuing its resolution dated September 22, 1981 ordering the issuance of
the corresponding entry of judgment.
WHEREFORE, for lack of merit, this petition is hereby DISMISSED. The
restraining order earlier issued is lifted.SO ORDERED.
G.R. No. 86819 November 9, 1989
ADAMSON OZANAM EDUCATIONAL INSTITUTION INC., ALSO
KNOWN AS ADAMSON UNIVERSITY, petitioner, vs.ADAMSON
UNIVERSITY FACULTY AND EMPLOYEES ASSOCIATION AND
CONRADO MAGLAYA, COMMISSIONER OF THE NATIONAL LABOR
RELATIONS COMMISSION, respondents.
The Adamson Ozanam Educational Institution, Inc. also known as the
Adamson University (AU) was granted by the then Ministry of Education,
Culture & Sports (MECS), the authority to increase their tuition fees by
10% and 5% for the school year 1983-84. The Adamson University
Faculty and Employees Association (AUFEA) believing that under P.D.
No. 451 60% thereof should be allocated for the increase in salaries and
wages of the members of the faculty and other members of the school
filed a complaint in the Ministry of Labor & Employment (MOLE) against
the AU for the recovery of the said 60%.
The contention of the AU is that P.D. No. 451 was repealed by the
Educational Act of 1982, which took effect on September 12, 1982, and
that assuming that B.P. No. 451 was not repealed, complainant is not
entitled to any benefit considering that there was no actual increment
proceeds in the tuition fee increase for the school year 1983-84 upon
which to base the 60% allocation.
In a decision of the labor arbiter dated March 31, 1986 the complaint was
dismissed for lack of merit. The AUFEA appealed therefrom to the
National Labor Relations Commission (NLRC) wherein in due course a
decision was rendered on September 30, 1988 setting aside the
appealed decision and ordering the AU to remit to the members of
AUFEA the amount of P1,298,160.00 representing the 60% share in the
increment proceeds of the tuition fees collected for the school year 1983-
84. A motion for reconsideration of the said decision filed by the AU was
denied in a resolution dated January 30, 1989 for having been filed out of
time.
Hence, the herein petition for certiorari filed by the AU. On February 22,
1989, the court dismissed the petition for failure to sufficiently show that
respondent commission had committed a grave abuse of discretion in
rendering its questioned judgment. A motion for reconsideration hereof
was filed by petitioner to which respondents were required to file their
comment. The desired comments having been submitted and the reply
thereto filed by petitioner, the court finds a cogent basis to grant the
motion for reconsideration. The petition is based on the following
arguments:
SERVICE OF THE DECISION UPON THE SECURITY GUARD
OF THE TOEFEMI BUILDING, WHERE RESPONDENT'S
FORMER COUNSEL USED TO HOLD OFFICE, IS
INEFFECTIVE AND DOES NOT CAUSE THE RUNNING OF
THE 10-DAY PERIOD FOR AN APPEAL.
BASED ON THE MERITS OF THE CASE, THE SUBJECT
DECISION PROMULGATED ON 30 SEPTEMBER 1988 IS
CONTRARY TO THE DOCTRINE LAID DOWN IN CEBU
INSTITUTE OF TECHNOLOGY ET AL. VS. HON. BLAS OPLE,
ET AL.
On the first issue, it appears that the decision of the NLRC dated
September 30, 1988 was served to the office of the counsel for petitioner
on October 11, 1988 through the security guard of the building. The office
of then counsel for petitioner, Atty. Andres Narvasa (now member of this
Court), was located at the TOEFEMI building. The copy of the decision
was addressed to Atty. Roberto I. Santos of said law office. However, at
the time of said serllice the said law office was already dissolved as Atty.
Narvasa was appointed as a member of this Court. Nevertheless, a copy
of said decision was transmitted by the former office of now Mr. Justice
Narvasa to the present counsel of record for petitioner on November 5,
1988 who promptly filed a motion for reconsideration on November 15,
1988.
In denying the motion for reconsideration the NLRC observed that the
former counsel of petitioner did not withdraw nor file a manifestation that
his office had been dissolved so he cannot continue to act as counsel
thereof.
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Thus the question that arises is whether the service of the copy of the
decision upon the security guard of the building where the former office of
petitioner's counsel was located was sufficient compliance with the
requirements of the law. Section 4, Rule 13 of the Rules of Court which is
suppletory to the rules of the NLRC, provides as follows:
Section 4. Personal Service. — Service of the papers may be
made by delivering personally a copy to the party or his attorney,
or by leaving it in his office with his clerk or with a person having
charge thereof. If no person is found in his office, or his office is
not known, then by leaving the copy, between the hours of eight
in the morning and six in the evening, at the party's or attomey's
residence, if known, with a person of sufficient discretion to
receive the same. (Emphasis supplied)
Under the foregoing rule, service of papers should be delivered
personally to the party or attorney or by leaving it at his office with his
clerk or with a person having charge thereof. The service of the court's
order upon any person other than the party's counsel is not legally
effective. 1 Where the copy of the decision is served on a person who is
neither a clerk or one in charge of the attorney's office, such service is invalid
and the decision does not therefore become executory. 2 The security guard
of the building where the attorney is holding office is neither the office clerk
nor a person in charge thereof as contemplated in the rules. In PLDT vs.
NLRC, 3 this Court ruled that the service of the decision at the ground floor of
a party's building when the office is at the 9th floor is not a valid service.
From the foregoing, it is clear that the service of the decision dated
October 11, 1988 on the security guard of the building where the then
counsel for petitioner was holding office was an invalid service and the
running of the period within which to appeal therefrom or file a motion for
reconsideration cannot be deemed to commence thereby.
While it is true that said former counsel of petitioner failed to withdraw his
appearance, the NLRC can take judicial notice of the fact that Mr. Justice
Narvasa was already elevated to the Supreme Court at the time the
decision in this case was promulgated. Since its decisions are reviewable
by the Supreme Court such matter of public knowledge should be within
the judicial notice of the NLRC because of the nature of their functions. 4
On the second issue, the order of respondent NLRC to petitioner to remit
to the respondent AUFEA the sum of P1,298,160.00 representing its 60%
share in the increment tuition fees collected for the school year 1983-
1984 is predicated on the argument that: 1) MECS Order No. 25 took
effect on April 1, 1985 and prior thereto this Court has ruled that the 60%
incremental proceeds should be applied to the basic salaries and wages;
and 2) inasmuch as the CBA was concluded two (2) days after petitioner
was granted the authority to increase its tuition fees, it does not
necessarily follow that the parties intended that the CBA benefits will be
taken from the said incremental proceeds.
We disagree.
In the case of Cebu Institute of Technology vs. Hon. Blas Ople, 5 this
Court ruled that P.D. No. 451 was repealed by B.P. 232 effective September
11, 1982. From the said date the governing law on the disposition of the 60%
incremental proceeds on the tuition fees are the appropriate provisions of
B.P. Blg. 232, which, in pertinent part provides as follows:
Not less than sixty (60) percent of the incremental tuition
proceeds shall be used for salaries or wages, allowances and
fringe benefits of faculty and support staff, including cost of living
allowance, imputed costs of contributed services, thirteenth (13th)
month pay, retirement fund contributions, social security,
medicare, unpaid school personnel claims, and payment as may
be prescribed by mandated wage orders, collective bargaining
agreements and voluntary employer practices ... (Sec. 42;
Emphasis supplied)
Accordingly, as of September 11, 1982, Section 3(a) of PD 451 which
limits the disposition of said 60% incremental proceeds increase in tuition
fees to those of salaries and wages is deemed abrogated by way of
repeal. 6 Indeed even prior thereto this Court ruled in the University of the
East vs. UE Faculty Association 7 as follows:
We are underscoring such modification because as We see it, it
settles the second main issue We have stated at the outset as to
whether or not increase of salaries of wages or allowances or
benefits secured by collective bargaining may be charged against
the incremental proceeds (60%) under PD 451. We read the
latest Malacañang decision to mean that increase of salaries
even those secured bvcollective bargaining may be charged to
the 60% incremental proceeds of MEC authorized tuition fee
increases. ... (Emphasis supplied)
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MECS Order No. 25 finds legal support in B.P. Blg. 232, otherwise known
as the Educational Act of 1982 as said MECS Order is an implementing
administrative rule interpretative of a pre-existing statute and not
declarative of certain rights with obligation thereunder. The same should
be given retroactive effect and its effectivity should be on September 11,
1982, which is the date of effectivity of B.P. Blg. 232, not April 1, 1985.
Remedial or curative statutes are by nature intended to be retroactive. 8

And this is as it should be as rules and regulations are and should be for
the sole purpose of carrying into effect a general provision of the
law. 9 Thus guided bv the Cebu Institute of Technology which declared the
automatic repeal of P.D. 451 respondent NLRC committed a grave error in
ruling that petitioner cannot charge to the 60% incremental proceeds the
items under paragraph 7.4 of the MECS Order No. 25 including collective
bargaining.

WHEREFORE, the motion for reconsideration is granted and the

resolution of February 22, 1989 is set aside; the petition is GRANTED so
that the questioned decision of the NLRC dated September 30, 1988 and
its resolution dated January 20, 1989 are hereby REVERSED AND SET
ASIDE while the decision of the labor arbiter dated March 31, 1986
dismissing the complaint for lack of merit is hereby AFFIRMED without
pronouncement as to costs.

SO ORDERED.

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G.R. No. L-50711 November 17, 1980
SIMEON ARAMBURO and CORAZON ARAMBURO KO, SALVACION
TAN DE ARAMBURO, JESUS T. ARAMBURO, JULIO T. ARAMBURO,
JOSEPHINE T. ARAMBURO, MARY JANE T. ARAMBURO, AUGUSTO
T. ARAMBURO, JR., JAIME T. ARAMBURO, JULIET T. ARAMBURO,
JACKSON T. ARAMBURO, JOCELYN T. ARAMBURO, JOVY T.
ARAMBURO, petitioners, vs.COURT OF APPEALS, CONCEPCION R.
PEÑA, PROVINCIAL SHERIFF OF ALBAY, respondents.
In this petition for certiorari, mandamus and prohibition, with prayer for a
restraining order filed on May 25, 1979, the petitioners seek to set aside
the decision of the Court of Appeals, dated December 28, 1978, in CA-
GR No. 41251-R entitled "Concepcion R. Peña vs. Salvacion Tan de
Aramburo, et al." and/or to remand the case to the Court of Appeals and
other said court to further proceed with the same by requiring the herein
private respondent, appellant in said Court of Appeals' case, to furnish
the herein petitioners, the appellees in said case, with a copy of the
appellant's brief and to allow petitioners-appellees to file their brief within
90 days from receipt of said copy before rendering a new decision on
said appeal. Petitioners further pray that the Provincial Sheriff of Albay be
restrained from enforcing the writ of execution issued by the Court of First
Instance of Albay ordering said Provincial Sheriff to execute the said
decision of the Court of Appeals.
The procedural antecedents of this petition are as follow: On January 14,
1963, the herein petitioners filed with the Court of First Instance of Albay
an application for registration of lots Nos. 2361 and 4725 of the Cadastral
Survey of Malinao. Docketed as Land Registration Case No. 311, the
application for registration was opposed by the herein private respondent,
Concepcion R. Peña who prayed that she be declared the owner of said
lots. On May 23, 1964, said private respondent filed with the same Court
of First Instance of Albay an action for reivindicacion with damages
seeking to recover from the herein petitioners the two lots covered by the
application for registration together with lot No. 2360 of the same
cadastral survey. As the latter lot was found to be in the possession of a
certain Jose Atadero, the complaint was amended to include said new
defendant. Said complaint was docketed as Civil Case No. 2850 and was
jointly tried with Land Registration Case No. 311. On February 14, 1968,
a decision was rendered by the Court of First Instance of Albay
dismissing both cases. From said decision, the herein private respondent
appealed to the Court of Appeals. The appeal was docketed in the Court
of Appeals as CA-G.R. No. 41251-R. Respondent-appellant filed with
said appellate court her appeal brief; petitioners-appellee did not file any
brief. Consequently, on September 23, 1971, the Court of Appeals,
Special Eight Division (composed of Justices Ramon 0. Nolasco, Andres
Reyes and Manuel P. Barcelona), issued a resolution considering the
case as submitted for decision without appellee's brief. More than seven
years thereafter, a decision was rendered by the Court of Appeals, Ninth
Division (composed of Justices Carlos L. Sundiam, Samuel F. Reyes and
Pacifico P. de Castro — now Associate Justice of the Supreme Court),
the dispositive portion of which reads as follows:
PREMISES CONSIDERED, the plaintiff-appellant having established her
ownership over the three parcels of land in issue and her possession,
including those of her predecessors-in-interest before the year 1961, the
decision appealed from is hereby REVERSED:
(1) Declaring plaintiff-appellant the absolute owner of the three lots in
question;
(2) Ordering the defendants to vacate said lots and deliver the
possession thereof to the plaintiff-appellant;
(3) Ordering defendants Aramburos to deliver to plaintiff-appellant 30
sacks of palay from Lot 2361 and 50 sacks of palay from Lot 4725,
annually, from 1961 until they vacate or pay their value at P12.00 per
sack;
(4) Ordering defendant Jose Atadero to deliver to plaintiff-appellant 12
sacks of palay from Lot 2360, annually, from 1961 until he vacates said
lot or pay its value at P12.00 per sack and
(5) Ordering defendants to pay the costs.
Petitioners-appellees now assail the decision of the Court of Appeals on
the ground of lack of procedural due process. They contend that they
were deprived of their day in court when the appeal was submitted for
decision without their brief. Allegedly they were not able to file their brief
because the respondent-appellant did not furnish them with a copy of the
appellant's brief. They further contend that they did not receive both the
resolution of the Court of Appeals dated September 23, 1971, which
considered the case as submitted for decision without appellee's brief, as
well as the decision of said court dated December 28, 1978, and that it
was only on May 9, 1979, that they learned of the judgment of said court
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when the Deputy Provincial Sheriff of Albay served upon them a copy of
the writ of execution enforcing said judgment.
On June 15, 1979, We required the respondents to comment on the
petition and issued an order temporarily restraining the Provincial Sheriff
of Albay from enforcing the writ of execution issued by the Court of First
Instance of Albay .
Respondents filed their comment on the petition on August 3, 1979.
Denying petitioners' claim of lack of procedural due process, respondents
allege that the counsel for the petitioners-appellees were furnished with
copies of the appellant's brief per registry receipts nos. 6724 and 6725
(Quiapo, Manila) dated January 20, 1971, which were filed with the Court
of Appeals along with the appellant's brief and were attached to the Rollo
of the appealed case. Respondents further noted that the counsel for
petitioners-appellees likewise received copies of the Court of Appeals'
resolution dated September 23, 1971, and of its decision dated
December 28, 1978, per registry return cards attached to the Rollo of the
case which show receipt by the authorized representatives of the
petitioners-appellees' counsel of the said resolution and decision on
October 7, 1971, and January 10, 1979, respectively. Respondents finally
contend that since the petitioners-appellees did not appeal from the
decision of the Court of Appeals nor move for reconsideration thereof,
said decision became final and executory and that, consequently, the
execution of said decision is in order and should not be restrained by this
Court. Accordingly, respondents pray that the temporary restraining order
be lifted and that the petition be denied for lack of merit.
On December 7, 1979, We required the petitioners to file a reply to the
comment of the respondents. Petitioners, through their counsel, Atty.
Delfin de Vera, filed their reply on January 17, 1980, wherein they
reiterated their claim that their former counsel, Atty. Antonio C. Alfane,
never received a copy of the appellant's brief and of the Court of Appeals'
resolution and decision dated September 23, 1971 and December 28,
1978, respectively.
On April 30, 1980, We required the Court of Appeals to ascertain
carefully the allegations of the petitioners regarding the non-service of the
appellant's brief and of the resolution and decision of the said Court and
to report on the same without unnecessary delay. In compliance
therewith, the Division Clerk of Court of the Ninth Division of the Court of
Appeals, Atty. Arturo A. Marave, submitted a report on May 27, 1980,
stating that:
1. The brief for the plaintiff-appellant filed with this Court on January 26,
1971 does not have a registry return receipt from petitioners' counsel
attached to it. Said brief bears only the registry return receipt from Atty.
Jose Atadero. However, attached to the same brief are two (2) registry
receipts bearing numbers 6724 and 6725, both dated January 26, 1971,
ostensibly for the two opposing counsels. (p. 90, Rollo).
2. The Resolution of this Court dated September 23, 1971 considering
the case submitted for decision without defendants-appellees' brief was
received by Attys. Antonio Alfane and Delfin de Vera on October 7, 1971
per registry return receipt attached to the back of resolution (p. 100,
Rollo). Copy of said registry return receipt is attached hereto as Annex 'A'
and made an integral part hereof.
3. The decision of this Court, incidentally, was received by counsel for
petitioner on January 10, 1979, as evidenced by the registry return
receipt, copy of with is attached hereto and made an integral part hereof
as Annex 'B'.
On June 11, 1980, We required the Division Clerk of Court of the Court of
Appeals to submit his report over the signature of Justice Carlos L.
Sundiam, the ponente of the assailed decision of the Court of Appeals.
On June 19, 1980, Atty. Delfin de Vera, counsel for the petitioners, filed a
manifestation stating that Atty. Antonio Alfane was the counsel for the
petitioners in the Court of Appeals and that neither he nor said Atty.
Alfane received the registered communications (resolution and decision)
covered by annexes "A" and "B" of the report of the Division Clerk of
Court of the Court of Appeals. Noting said manifestation, We ordered
Justice Carlos L. Sundiam on July 16, 1980, to submit a comprehensive
and reasoned report as required in the resolution of June 11, 1980, in
relation to the resolution of April 30, 1980, taking into consideration the
statements contained in the manifestation. In compliance therewith,
Justice Carlos L. Sundiam filed on September 1, 1980, his comment. He
reproduced in said comment the report of the Division Clerk of Court and
noted further that since the resolution and decision of the Court of
Appeals were sent to the petitioners-appellees' counsel thru a
government agency, the postal services of the country, it may be
presumed, pursuant to Sec. 5 (m), Rule 131 of the Rules of Court that the
postmaster of Legaspi City performed his official duties and delivered the
mail matter to the authorized representatives of the addressees.
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The only issue to be resolved in this special civil action for certiorari,
mandamus and prohibition is whether or not the herein petitioners were
deprived of procedural due process when the Court of Appeals decided
CA-G.R. No. 41251-R without their briefs as the appellees therein.
We are inclined to believe petitioners' allegation that they were not
served with a copy of the appellant's brief. For it must be observed that
the duty of proving service of the appellant's brief upon the appellee lies
with the appellant, the private respondent herein, who, regretably, failed
to comply with the same. Section 10, Rule 14 of the Rules of Court
provides
SEC 10. PROOF OF SERVICE. — Proof of personal service shall consist
of a written admission of the party served, or the affidavit of the party
serving, containing a full statement of the date, place and manner of
service, ... If service is made by registered mail, proof shall be made by
such affidavit and the registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon receipt thereof by the
sender, or in lieu thereof the letter unclaimed together with the certified or
sworn copy of the notice given by the postmaster to the addressee.
Conformably with the foregoing provision, sufficient proof of service of the
appellant's brief upon the appellees, which was allegedly effected thru
registered mail, consists of: (1) the affidavit of the party serving,
containing a full statement of the date, place and manner of service; (2)
the registry receipt issued by the mailing office; and (3) the registry return
card or, in lieu thereof, the letter unclaimed together with the certified or
sworn copy of the notice given by the postmaster to the addressee. The
records of the case, however, reveal that only the registry receipts
allegedly issued by the mailing office were presented by the respondent-
appellant as proof of service of her brief upon petitioners-appellees. Such
registry receipts cannot be considered as sufficient proof of service of the
appellant's brief. Firstly, to hold otherwise would be to disregard the
explicit requirements of the aforequoted provision of the Rules of Court.
Secondly, said registry receipts are evidence of the posting of the mail
matter with the post office of the sender — not of the delivery of said mail
matter by the post office of the addressee. Thirdly, the date of actual
delivery to the addressee cannot be ascertained from such registry
receipts, And, finally, the possibility of presenting registry receipts
covering mail matters different from those involved in the litigation cannot
be discounted. (See: resolution of the Supreme Court, Second Division,
dated May 21, 1980, in G.R. No. 51378 entitled "American President
Lines vs. The Honorable Court of Appeals, et al.")
Since respondent-appellant had not sufficiently proven service of the
appellant's brief upon the petitioners-appellees, it was, therefore, an error
on the part of the Court of Appeals to consider the appeal as submitted
for decision without appellees' brief. But such procedural defect was not
fatal when, as in this case, the party adversely affected thereby had
sufficient opportunity to seek correction of such error. For, here, the
petitioners-appellees' counsel were notified of the resolution of the Court
of Appeals which considered the case as submitted for decision without
appellees' brief more than seven years before the rendition of the
decision. (The registry return card attached to page 100 of the Rollo of
CA-G.R. No. 41251-R shows receipt by the authorized agent of
petitioners-appellees' counsel, Attys. Antonio Alfane and Delfin de Vera,
of the subject resolution of the Court of Appeals on October 7, 1971; the
decision of the Court of Appeals was promulgated on December 28,
1978.) Certainly, such length of time was more than sufficient for
petitioners-appellees to seek reconsideration of the resolution of the
Court of Appeals. But, this, they failed to do. And such failure could only
be construed as a waiver by petitioners-appellees of their right to file their
brief in said appeal and their consent to have the case decided on the
basis of the records thereof which were elevated to the appellate court
and of whatever pleadings already filed with said court.
Petitioners-appelles coucel had persistently denied having received the
subject resolution of the Court of Appeals and claimed that the signature
appearing on the registry return card, purportedly that of their authorized
agent, was unknown to them. But such naked denials cannot stand in the
face of the presumption established in Sec. 5(m) of Rule 131 of the Rules
of Court that official duties had been regularly performed his official
duties and delivered the subject resolution to the authorized
representative of petitioners-appelles' counsel.
As the foregoing onbservations likewise hold true with respect to the
decision of the Court of Appeals which appears to have been received by
the authorized representaive of petitioners-appelles' counsel on January
10, 1979, per registry return card attached to page 101 of the rollo of CA-
G.R. No. 41251-R, it follows that said decision become final and
executory on January 25, 1979. Consequently, the executory of said
decision is in order.
WHEREFORE, the temporary restraining order issued on June 15, 1979,
is hereby lifted and the petition for certiorari, mandamus and prohibition is
hereby denied for lack of merit. Cost against petitioners.SO ORDERED.
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G.R. No. 132007 August 5, 1998
SOLAR TEAM ENTERTAINMENT, INC., petitioner, vs.HON. HELEN
BAUTISTA RICA-FORT, in her capacity as Presiding Judge of the
Regional Trial Court of Parañaque, Metro Manila (Branch 260), TEAM
IMAGE ENTERTAINMENT, INC., FELIX S. CO, JEFFREY C. CAL, and
KING CUISIA, respondents.
At issue is whether respondent judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction in denying
petitioner's motion to expunge private respondents' answer with
counterclaims on the ground that said pleading was not served
personally; moreover, there was no written explanation as to why
personal service was not accomplished, as required by Section 11 of
Rule 13 of the 1997 Rules of Civil Procedure.
The antecedents are not disputed.
On 10 July 1997, petitioner, as plaintiff, filed before the Regional Trial
Court (RTC) in Parañaque, Metro Manila, a complaint for recovery of
possession and damages with prayer for a writ of replevin 1 against
herein private respondents. The case was docketed as Civil Case No.
97-0304 and was assigned to Branch 260 of said court, presided over by
public respondent Judge Helen Bautista-Ricafort.
Summonses and copies of the complaint were forthwith served on private
respondents. On 25 July 1997, their counsel filed a notice of appearance
with urgent ex-parte motion for extension of time to plead, 2 which the
court granted in its order of 4 August 1997. 3
On 8 August 1997, private respondents, as defendants, filed their
"Answer (with Counterclaims).'' 4 A copy thereof was furnished counsel
for petitioner by registered mail; however, the pleading did not contain
any written explanation as to why service was not made personally upon
petitioner-plaintiff, as required by Section 11 of Rule 13 of the 1997 Rules
of Civil Procedure.
On 11 August 1997, petitioner filed a motion to expunge the "Answer
(with Counterclaims)" and to declare herein private respondents in
default, 5 alleging therein that the latter did not observe the mandate of
the aforementioned Section 11, and that there was:
[A]bsolutely no valid reason why defendant[s] should not
have personally served plaintiff's . . . counsel with [a] copy
of their answer [as] (t)he office of defendant's (sic)
counsel, Atty. Froilan Cabaltera, is just a stone [sic] throw
away from the office of [petitioner's] counsel, with an
estimate (sic) distance of about 200 meters more or less.
Petitioner further alleged that the post office was "about ten (10) times
farther from the office of Atty. Cabaltera,"
On 15 August 1997, private respondents filed their opposition 6 to the
abovementioned motion, alleging that petitioner's "rigid and inflexible
reliance on the provisions of Section 11, Rule 13 . . . is an adventitious
resort to technicality and is contrary to Section 6 of Rule 3 . . . which
admonishes that said Rules 'shall be liberally construed in order to
promote their objective in securing a just, speedy and inexpensive
disposition of [e]very action and proceeding;'" and that Section 11, Rule
13 notwithstanding, private respondents "religiously complied with
[Section 5 of Rule 13] by personally present[ing] to the clerk of court their
said Answer . . . furnishing a copy thereof to the counsel for [petitioner]
by way of registered mail."
On 8 September 1997, public respondent Judge Bautista-Ricafort issued
an order 7 stating that under Section 11 of Rule 13 "it is within the
discretion of the [trial court] whether to consider the pleading as filed or
not," and denying, for lack of merit, petitioner's motion to expunge the
"Answer (with Counterclaims)" and to declare private respondents in
default.
Petitioner immediately moved for reconsideration 8 of the order, but public
respondent Judge Bautista-Ricafort denied this motion in her order 9 of
17 November 1997. The order justified the denial in this wise:
Sec. 6 [of] Rule 1 of the 1997 Rules of Civil Procedure
ordains that the Rules shall be liberally construed in order
to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding.
Liberal construction of the rules and the pleading is the
controlling principle to effect substantial justice.
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As pointed out by the Supreme Court in Alonso vs.
Villamor, 16 Phil. 315, "the error in this case is purely
technical. To take advantage of it for other purposes than
to cure it, does not appeal to a fair sense of justice. Its
presentation as fatal to plaintiff a [sic] case smacks of skill
rather than right. A litigation is not a game of technicalities
in which one, more deeply schooled and skilled in the
subtle art of movement and position, entraps and
destroys the other. It is rather, a contest in which each
contending party fully and fairly lays before the Court the
facts in issue and then, brushing aside as wholly trivial
and indecisive all imperfections or form of technicalities of
procedure, asks that justice be done upon the merits.
Lawsuits, unlike duels, are not to be won by a rapier's
thrust."
While it is desirable that the above Rules be faithfully and
even meticulously observed, courts should not strict about
procedural lapses that do not really impair the proper
administration of justice. Furthermore, it is well settled
that litigations should, as much as possible be decided on
their merits and not on technicalities.
Petitioner thus filed the instant special civil action of certiorari, contending
that public respondent Judge Bautista-Ricafort committed grave abuse of
discretion amounting to lack or excess of jurisdiction when she admitted
private respondents' "Answer (with Counterclaims)" notwithstanding
private respondents' clear, admitted and inexcusable violation of Section
11, Rule 13 of the 1997 Rules of Civil Procedure, in that: (a) the "Answer
(with Counterclaims)" was not served personally upon petitioner's
counsel despite the undisputed fact that the offices of private
respondents' counsel and that of petitioner's counsel are only about 200
meters away from each other; and (b) the Answer did not contain any
explanation as to why the answer was not served personally.
In their Comment, filed in compliance with the resolution of 2 February
1998, and to which petitioner filed a Reply, private respondents aver that
public respondent Judge Bautista-Ricafort correctly admitted private
respondents' "Answer (with Counterclaims)" in light of Section 6, Rule 1
of the 1997 Rules of Civil Procedure; that Section 11 of Rule 13 begins
with the phrase "whenever practicable," thereby suggesting that service
by mail may still be effected depending on the relative priority of the
pleading sought to be filed; and when service is not done personally, it is
more prudent and judicious for the courts to require a written explanation
rather than to expunge the pleading outright or consider the same as not
being filed.
In view of the importance of the issue raised, which is, undoubtedly, one
of the first impression, the Court resolved to give due course to the
petition and consider it submitted for decision on the basis of the
pleadings filed by the parties.
Sec. 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes two
modes of service of pleadings, motions, notices, orders, judgments and
other papers, namely: (1) personal service; and (2) service by mail. The
first is governed by Section 6, while the second, by Section 7 of said
Rule. If service cannot be done either personally or by mail, substituted
service may be resorted to under Section 8 thereof.
Pursuant, however, to Section 11 of Rule 13, service and filing of
pleadings and other papers must, whenever practicable, be done
personally; and if made through other modes, the party concerned must
provide a written explanation as to why the service or filing was not done
personally. The section reads:
Sec. 11. Priorities in modes of service and filing. —
Whenever practicable, the service and filing of pleadings
and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to
other modes must be accompanied by a written
explanation why the service or filing was not done
personally. A violation of this Rule may be cause to
consider the paper as not filed. (n)
Note that Section 11 refers to both service of pleadings and other
papers on the adverse party or his counsel as provided for in
Sections 6, 7 and 8; and to the filing of pleadings and other
papers in court.
Personal service and filing are preferred for obvious reasons. Plainly,
such should expedite action or resolution on a pleading, motion or other
paper; and conversely, minimize, if not eliminate, delays likely to be
incurred if service or filing is done by mail, considering the inefficiency of
the postal service. Likewise, personal service will do away with the
practice of some lawyers who, wanting to appear clever, resort to the
following less than ethical practices: (1) serving or filing pleadings by mail
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to catch opposing counsel off-guard, thus leaving the latter with little or
no time to prepare, for instance, responsive pleadings or an opposition;
or (2) upon receiving notice from the post office that the registered parcel
containing the pleading of or other paper from the adverse party may be
claimed, unduly procrastinating before claiming the parcel, or, worse, not
claiming it at all, thereby causing undue delay in the disposition of such
pleading or other papers.
If only to underscore the mandatory nature of this innovation to our set of
adjective rules requiring personal service whenever practicable, Section
11 of Rule 13 then gives the court the discretion to consider a pleading or
paper as not filed if the other modes of service or filing were resorted to
and no written explanation was made as to why personal service was not
done in the first place. The exercise of discretion must, necessarily,
consider the practicability of personal service, for Section 11 itself begins
with the clause "whenever practicable."
We thus take this opportunity to clarify that under Section 11, Rule 13 of
the 1997 Rules of Civil Procedure, personal service and filing is the
general rule, and resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or filing is practicable,
in light of the circumstances of time, place and person, personal service
or filing is mandatory. Only when personal service or filing is not
practicable may resort to other modes be had, which must then be
accompanied by a written explanation as to why personal service or filing
was not practicable to begin with. In adjudging the plausibility of an
explanation, a court shall likewise consider the importance of the subject
matter of the case or the issues involved therein, and the prima
facie merit of the pleading sought to be expunged for violation of Section
11. This Court cannot rule otherwise, lest we allow circumvention of the
innovation introduced by the 1997 Rules in order to obviate delay in the
administration of justice.
Here, the proximity between the offices of opposing counsel was
established; moreover, that the office of private respondents' counsel was
"ten times farther" from the post office than the distance separating the
offices of opposing counsel. Of course, proximity would seem to make
personal service most practicable, but exceptions may nonetheless
apply. For instance, where the adverse party or opposing counsel to be
served with a pleading seldom reports to office and no employee is
regularly present to receive pleadings, or where service is done on the
last day of the reglementary period and the office of the adverse party or
opposing counsel to be served is closed, for whatever reason.
Returning, however, to the merits of this case, in view of the proximity
between the offices of opposing counsel and the absence of any
attendant explanation as to why personal service of the answer was not
effected, indubitably, private respondents' counsel violated Section 11 of
Rule 13 and the motion to expunge was prima facie meritorious.
However, the grant or denial of said motion nevertheless remained within
the sound exercise of the trial court's discretion. Thus, as guided by
Section 6, Rule 1 of the 1997 Rules of Civil Procedure, which ordains that
the Rules shall be liberally construed in order to promote their objective
of securing a just, speedy and inexpensive disposition of every action or
proceeding, as well as by the dictum laid down in Alonso v. Villamor, 16
Phil. 315 [1910], the trial court opted to exercise its discretion in favor of
admitting the "Answer (with Counterclaims)," instead of expunging it from
the record.
To our mind, if motions to expunge or strike out pleadings for violation of
Section 11 of Rule 13 were to be indiscriminately resolved under Section
6 of Rule 1 or Alonzo v. Villamor and other analogous cases, then
Section 11 would become meaningless and its sound purpose negated.
Nevertheless, we sustain the challenged ruling of the trial court, but for
reasons other than those provided for in the challenged order.
The 1997 Rules of Civil Procedure took effect only on 1 July 1997, while
the questioned "Answer (with Counterclaims)" was filed only on 8 August
1997, or on the 39th day following the effectivity of the 1997 Rules.
Hence, private respondents' counsel may not have been fully aware of
the requirements and ramifications of Section 11, Rule 13. In fact, as
pointed out by petitioner's counsel, in another case where private
respondents' counsel was likewise opposing counsel, the latter similarly
failed to comply with Section 11.
It has been several months since the 1997 Rules of Civil Procedure took
effect. In the interim, this Court has generally accommodated parties and
counsel who failed to comply with the requirement of a written
explanation whenever personal service or filing was not practicable,
guided, in the exercise of our discretion, by the primary objective of
Section 11, the importance of the subject matter of the case, the issues
involved and the prima facie merit of the challenged pleading. However,
as we have in the past, for the guidance of the Bench and Bar, strictest
compliance with Section 11 of Rule 13 is mandated one month from
promulgation of this Decision.
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WHEREFORE, the instant petition is DISMISSED considering that while
the justification for the denial of the motion to expunge the "Answer (with
Counterclaims)" may not necessarily be correct, yet, for the reasons
above stated, the violation of Section 11 of Rule 13 may be condoned.

No pronouncement as to costs.

SO ORDERED.

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