G.R. No.

L-21076 March 31, 1965

WONG WOO YIU alias NG YAO, petitioner-appellee,

vs.
HON. MARTINIANO P. VIVO, ETC., ET AL., respondents-appellants.

Platon A. Baysa for petitioner-appellee.

Office of the Solicitor General for respondents-appellants.

BAUTISTA ANGELO, J.:

On June 28, 1961, the Board of Special Inquiry No. 3 rendered a decision finding petitioner to be legally
married to Perfecto Blas and admitting her into the country as a non-quota immigrant. This decision was
affirmed by the Board of Commissioners on July 12, 1961 of which petitioner was duly informed in a letter sent
on the same date by the Secretary of the Board. However, on June 28, 1962, the same Board of Commissioners,
but composed entirely of a new set of members, rendered a new decision reversing that of the Board of Special
Inquiry No. 3 and ordering petitioner to be excluded from the country. On August 9, 1962, petitioner filed a
motion for new trial requesting an opportunity to clarify certain points taken in the decision, but the same was
denied for lack of merit. Whereupon, on September 14, 1962, petitioner initiated the instant petition for
mandamus with preliminary injunction before the Court of First Instance of Manila which incidentally was
considered by it as a petition for certiorari.

In due time, respondents filed their answer, and, after the parties had submitted a written stipulation of facts,
attaching thereto some documentary evidence, the court a quo rendered a decision granting in, toto the relief
prayed for. Thus, the court declared valid the decision rendered by the Board of Special Inquiry No. 3 while it
restrained respondents from excluding petitioner from the country. Respondents interposed the present appeal.

It appears that in the proceedings held before the Board of Special Inquiry sometime in June, 1961, petitioner
declared that she came to the Philippines in 1961 for the first time to join her husband Perfecto Blas to whom
she was married in Chingkang, China on January 15, 1929; that they had several children all of whom are not in
the Philippines; that their marriage was celebrated by one Chua Tio, a village leader; that on June 28, 1961 the
Board of Special Inquiry No. 3 rendered a decision finding, among others, that petitioner is legally married to
Perfecto Blas, a Filipino Citizen, and admitted her into the country as a non-quota immigrant; that this decision
was affirmed by the Board of Commissioners of which petitioner was duly notified by the Secretary of said
Board in a letter dated July 12, 1961; that in a motu proprio decision rendered by the Board of Commissioners
composed of a new set of members dated June 28, 1962 the latter found that petitioner's claim that she is the
lawful wife of Perfecto Blas was without basis in evidence as it was "bereft of substantial proof of husband-wife
relationship"; that said Board further held that, it appearing that in the entry proceedings of Perfecto Blas had on
January 23, 1947 he declared that he first visited China in 1935 and married petitioner in 1936, it could not
possibly sustain her claim that she married Perfecto Blas in 1929; that in an affidavit dated August 9, 1962
Perfecto Blas claimed that he went to China in 1929, 1935 and 1941, although in his re-entry declaration he
admitted that he first went to China in 1935, then in 1937, then in 1939, and lastly in 1941; and that Perfecto
Blas in the same affidavit likewise claimed that he first went to China when he was merely four years old so
that computed from his date of birth in 1908 it must have been in 1912.1äwphï1.ñët

In view of the discrepancies found in the statements made by petitioner and her alleged husband Perfecto Blas
in the several investigations conducted by the immigration authorities concerning their alleged marriage before
a village leader in China in 1929, coupled with the fact that the only basis in support of petitioner's claim that
she is the lawful wife of Perfecto Blas is "a mass of oral and documentary evidence bereft of substantial proof
of husband-wife relationship," the Board of Commissioners motu proprio reviewed the record concerning the
admission of petitioner into the country resulting in its finding that she was improperly admitted. Thus, said
Board made the following comment:
 The only basis in support of the claim that she is the wife of Perfecto Blas is a mass of oral and
documentary evidence bereft of substantial proof of husband-wife relationship. She relies on the records
of Perfecto Blas in connection with his cancellation case and the testimony of the supposed children in
the previous admission proceeding. But this claim is belied by the admission of Perfecto Blas himself, in
the hearing conducted by a Board of special inquiry in connection with his entry on January 23, 1947,
that he was married to one Ng Yo in Ki Say, Chingkang, China in 1936, his first visit there being in
1935; he could not therefore have been married to herein applicant in 1929.

The above comment cannot be disputed, it finding support in the record. Indeed, not only is there no
documentary evidence to support the alleged marriage of petitioner to Perfecto Blas but the record is punctured
with so many inconsistencies which cannot but lead one to doubt their veracity concerning the pretended
marriage in China in 1929. This claim cannot also be entertained under our law on family relations. Thus,
Article 15 of our new Civil Code provides that laws relating to family rights or to the status of persons are
binding upon citizens of the Philippines, even though living abroad, and it is well-known that in 1929 in order
that a marriage celebrated in the Philippines may be valid it must be solemnized either by a judge of any court
inferior to the Supreme Court, a justice of the peace, or a priest or minister of the gospel of any denomination
duly registered in the Philippine Library and Museum (Public Act 3412, Section 2). Even if we assume,
therefore, that the marriage of petitioner to Perfecto Blas before a village leader is valid in China, the same is
not one of those authorized in our country.

But it may be contended that under Section 4 of General orders No. 68, as reproduced in Section 19 of Act No.
3613, which is now Article 71 of our new Civil Code, a marriage contracted outside of the Philippines which is
valid under the law of the country in which it was celebrated is also valid in the Philippines. But no validity can
be given to this contention because no proof was presented relative to the law of marriage in China. Such being
the case, we should apply the general rule that in the absence of proof of the law of a foreign country it should
be presumed that it is the same as our own.

The statutes of other countries or states must be pleaded and proved the same as any other fact. Courts
cannot take judicial notice of what such laws are. In the absence of pleading and proof the laws of a
foreign country or state will be presumed to be the same as our own. (Yam Ka Lim v. Collector of
Customs, 30 Phil. 46).

In the absence of anything to the contrary as to the character of a foreign law, it will be presumed to be
the same as the domestic law on the same subject. (Lim and Lim vs. Collector of Customs, 36 Phil. 472).

In the absence of evidence to the contrary foreign laws on a particular subject are presumed to be the
same as those of the Philippines. (Miciano v. Brimo, 50 Phil. 867).

Since our law only recognizes a marriage celebrated before any of the officers mentioned therein, and a village
leader is not one of them, it is clear that petitioner's marriage, even if true, cannot be recognized in this
jurisdiction.

WHEREFORE, the decision appealed from is reversed. As a corollary, the petition for mandamus filed before
the court a quo is hereby dismissed. No costs.
G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN
WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and
set aside the Orders1 dated February 19, 2010 and September 1, 2010, respectively, of the Regional Trial Court
of Cebu City (RTC-Cebu), which dismissed the criminal case entitled People of the Philippines v. Ernst Johan
Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503, for violation of Republic Act (R.A.) No.
9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted marriage in
Holland on September 25, 1990.2 On January 19, 1994, they were blessed with a son named Roderigo Norjo
Van Wilsem, who at the time of the filing of the instant petition was sixteen (16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the
appropriate Court of Holland.4 At that time, their son was only eighteen (18) months old.5 Thereafter, petitioner
and her son came home to the Philippines.6

According to petitioner, respondent made a promise to provide monthly support to their son in the amount of
Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or less).7 However, since the
arrival of petitioner and her son in the Philippines, respondent never gave support to the son, Roderigo.8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and since then,
have been residing thereat.9 Respondent and his new wife established a business known as Paree Catering,
located at Barangay Tajao, Municipality of Pinamungahan, Cebu City.10 To date, all the parties, including their
son, Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from respondent.
However, respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial Prosecutor of
Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust
refusal to support his minor child with petitioner.13 Respondent submitted his counter-affidavit thereto, to
which petitioner also submitted her reply-affidavit.14 Thereafter, the Provincial Prosecutor of Cebu City issued
a Resolution recommending the filing of an information for the crime charged against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:

That sometime in the year 1995 and up to the present, more or less, in the Municipality of Minglanilla, Province
of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then
and there wilfully, unlawfully and deliberately deprive, refuse and still continue to deprive his son RODERIGO
NORJO VAN WILSEM, a fourteen (14) year old minor, of financial support legally due him, resulting in
economic abuse to the victim. CONTRARY TO LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against respondent.16
Consequently, respondent was arrested and, subsequently, posted bail.17 Petitioner also filed a
Motion/Application of Permanent Protection Order to which respondent filed his Opposition.18 Pending the
resolution thereof, respondent was arraigned.19 Subsequently, without the RTC-Cebu having resolved the
application of the protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack of
jurisdiction over the offense charged; and (2) prescription of the crime charged.20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing the instant criminal case
against respondent on the ground that the facts charged in the information do not constitute an offense with
respect to the respondent who is an alien, the dispositive part of which states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense with
respect to the accused, he being an alien, and accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is hereby
cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation to support
their child under Article 19523 of the Family Code, thus, failure to do so makes him liable under R.A. No. 9262
which "equally applies to all persons in the Philippines who are obliged to support their minor children
regardless of the obligor’s nationality."24

On September 1, 2010, the lower court issued an Order25 denying petitioner’s Motion for Reconsideration and
reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier in the memorandum of
the prosecution. Thus, the court hereby reiterates its ruling that since the accused is a foreign national he is not
subject to our national law (The Family Code) in regard to a parent’s duty and obligation to givesupport to his
child. Consequently, he cannot be charged of violating R.A. 9262 for his alleged failure to support his child.
Unless it is conclusively established that R.A. 9262 applies to a foreigner who fails to give support tohis child,
notwithstanding that he is not bound by our domestic law which mandates a parent to give such support, it is the
considered opinion of the court that no prima faciecase exists against the accused herein, hence, the case should
be dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under Philippine law;
and
 2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his unjustified
failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the fact that the
same was directly lodged with the Supreme Court, consistent with the ruling in Republic v. Sunvar Realty
Development Corporation,28 which lays down the instances when a ruling of the trial court may be brought on
appeal directly to the Supreme Court without violating the doctrine of hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in
case only questions of law are raised or involved. This latter situation was one that petitioners found themselves
in when they filed the instant Petition to raise only questions of law. In Republic v. Malabanan, the Court
clarified the three modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ
of error under Rule 41, whereby judgment was rendered in a civil or criminal action by the RTC in the exercise
of its original jurisdiction; (2) by a petition for review under Rule 42, whereby judgment was rendered by the
RTC in the exercise of its appellate jurisdiction; and (3) by a petition for review on certiorari before the
Supreme Court under Rule 45. "The first mode of appeal is taken to the [Court of Appeals] on questions of fact
or mixed questions of fact and law. The second mode of appeal is brought to the CA on questions of fact, of
law, or mixed questions of fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the probative value of the evidence
presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application
of law and jurisprudence on the matter. The resolution of the issue must rest solely on what the law provides on
the given set of circumstances.29

Indeed, the issues submitted to us for resolution involve questions of law – the response thereto concerns the
correct application of law and jurisprudence on a given set of facts, i.e.,whether or not a foreign national has an
obligation to support his minor child under Philippine law; and whether or not he can be held criminally liable
under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning the
liability of a foreign national who allegedly commits acts and omissions punishable under special criminal laws,
specifically in relation to family rights and duties. The inimitability of the factual milieu of the present case,
therefore, deserves a definitive ruling by this Court, which will eventually serve as a guidepost for future cases.
Furthermore, dismissing the instant petition and remanding the same to the CA would only waste the time,
effort and resources of the courts. Thus, in the present case, considerations of efficiency and economy in the
administration of justice should prevail over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do not fully
agree with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the legal
obligation to support exists.

Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support his
child. Petitioner contends that notwithstanding the existence of a divorce decree issued in relation to Article 26
of the Family Code,31 respondent is not excused from complying with his obligation to support his minor child
with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by petitioner that
she, as well as her minor son, are entitled to financial support.32 Respondent also added that by reason of the
Divorce Decree, he is not obligated topetitioner for any financial support.33
On this point, we agree with respondent that petitioner cannot rely on Article 19534 of the New Civil Code in
demanding support from respondent, who is a foreign citizen, since Article 1535 of the New Civil Code stresses
the principle of nationality. In other words, insofar as Philippine laws are concerned, specifically the provisions
of the Family Code on support, the same only applies to Filipino citizens. By analogy, the same principle
applies to foreigners such that they are governed by their national law with respect to family rights and
duties.36

The obligation to give support to a child is a matter that falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject to the laws
of his country, not to Philippinelaw, as to whether he is obliged to give support to his child, as well as the
consequences of his failure to do so.37

In the case of Vivo v. Cloribel,38 the Court held that –

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the
Philippines, for that Code cleaves to the principle that family rights and duties are governed by their personal
law, i.e.,the laws of the nation to which they belong even when staying in a foreign country (cf. Civil Code,
Article 15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under Article195
of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This does not, however,
mean that respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of
proving the foreign law.40 In the present case, respondent hastily concludes that being a national of the
Netherlands, he is governed by such laws on the matter of provision of and capacity to support.41 While
respondent pleaded the laws of the Netherlands in advancing his position that he is not obliged to support his
son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not impose
upon the parents the obligation to support their child (either before, during or after the issuance of a divorce
decree), because Llorente v. Court of Appeals,42 has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to takejudicial
notice of them. Like any other fact, they must be alleged and proved.43

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of
processual presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded
and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law.44
Thus, since the law of the Netherlands as regards the obligation to support has not been properly pleaded and
proved in the instant case, it is presumed to be the same with Philippine law, which enforces the obligation of
parents to support their children and penalizing the non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained in a foreign land as well as
its legal effects may be recognized in the Philippines in view of the nationality principle on the matter of status
of persons, the Divorce Covenant presented by respondent does not completely show that he is notliable to give
support to his son after the divorce decree was issued. Emphasis is placed on petitioner’s allegation that under
the second page of the aforesaid covenant, respondent’s obligation to support his child is specifically stated,46
which was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents
have no obligation to support their children or that such obligation is not punishable by law, said law would still
not find applicability,in light of the ruling in Bank of America, NT and SA v. American Realty Corporation,47
to wit:

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in
accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al.
vs. Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the
forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, public policy and good customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction
proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon
the merits in any one is available as a ground for the dismissal of the others. Moreover, foreign law should not
be applied when its application would work undeniable injustice to the citizens or residents of the forum. To
give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust
negates the fundamental principles of Conflict of Laws.48

Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his
child nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines
because it would be of great injustice to the child to be denied of financial support when the latter is entitled
thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his former wife,
in consonance with the ruling in San Luis v. San Luis,49 to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe considered
marriedto the alien spouse. Further, she should not be required to perform her marital duties and obligations. It
held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to
private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be
just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal
property. She should not be discriminated against in her own country if the ends of justice are to be served.
(Emphasis added)50

Based on the foregoing legal precepts, we find that respondent may be made liable under Section 5(e) and (i) of
R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and
their children is committed through any of the following acts:
 xxxx

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her
child has the right to desist from or desist from conduct which the woman or her child has the right to engage in,
or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or
threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the
woman or child. This shall include, butnot limited to, the following acts committed with the purpose or effect of
controlling or restricting the woman's or her child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her
family, or deliberately providing the woman's children insufficient financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but
not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor
childrenof access to the woman's child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the child is considered anact of
violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in petitioner’s
claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New Civil Code, applies to
the instant case, which provides that: "[p]enal laws and those of public security and safety shall be obligatory
upon all who live and sojourn in Philippine territory, subject to the principle of public international law and to
treaty stipulations." On this score, it is indisputable that the alleged continuing acts of respondent in refusing to
support his child with petitioner is committed here in the Philippines as all of the parties herein are residents of
the Province of Cebu City. As such, our courts have territorial jurisdiction over the offense charged against
respondent. It is likewise irrefutable that jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a legal basis
for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been extinguished on the
ground of prescription of crime52 under Section 24 of R.A. No. 9262, which provides that:

SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years.
Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing offense,53
which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the instant case has
clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to petitioner’s child calls for an
examination of the probative value of the evidence presented, and the truth and falsehood of facts being
admitted, we hereby remand the determination of this issue to the RTC-Cebu which has jurisdiction over the
case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET ASIDE. The case
is REMANDED to the same court to conduct further proceedings based on the merits of the case.
G.R. No. 156330 November 19, 2014

NEDLLOYD LIJNEN B.V. ROTTERDAM and THE EAST ASIATIC CO., LTD., Petitioners,
vs.
GLOW LAKS ENTERPRISES, LTD., Respondent.

DECISION

PEREZ, J.:

This is a Petition for Review on Certiorari1 filed pursuant to Ruic 45 of the Revised Rules of Comi, primarily
assailing the 11 December 2002 Resolution rendered by the Special Former Sixteenth Division of the Court of
Appeals in CA-G.R. CV No. 48277,2 the decretal portion of which states:

WHEREFORE, the appeal is GRANTED and the April 29. 1994 Decision of the Regional Trial Court of
Manila, Branch 52 thereof' in Civil Case No. 88-45595, SET ASIDE. Nedlloyd Lijncn B.V. Rotterdam and The
East Asiatic Co., Ltd arc ordered to pay Glow l ,aks Enterprises, I ,td. the following:

1. The invoice value of the goodslost worth $53,640.00, or its equivalent in Philippine currency;

2. Attorney’s fees of ₱50,000.00; and

3. Costs.3

The Facts

Petitioner Nedlloyd Lijnen B.V. Rotterdam (Nedlloyd) is a foreign corporation engaged in the business of
carrying goods by sea, whose vessels regularly call at the port of Manila. It is doing business in the Philippines
thru its local ship agent, co-petitioner East Asiatic Co., Ltd. (East Asiatic).

Respondent Glow Laks Enterprises,Ltd., is likewise a foreign corporation organized and existing under the laws
of Hong Kong. It is not licensed to do, and it is not doing business in, the Philippines.

On or about 14 September 1987, respondent loaded on board M/S Scandutch at the Port of Manila a total 343
cartoons of garments, complete and in good order for pre-carriage tothe Port of Hong Kong. The goods covered
by Bills of Lading Nos. MHONX-2 and MHONX-34 arrived in good condition in Hong Kong and were
transferred to M/S Amethyst for final carriage to Colon, Free Zone, Panama. Both vessels, M/S Scandutch and
M/S Amethyst, are owned by Nedlloyd represented in the Phlippines by its agent, East Asiatic. The goods
which were valued at US$53,640.00 was agreed to be released to the consignee, Pierre Kasem, International,
S.A., upon presentation of the original copies of the covering bills of lading.5 Upon arrival of the vessel at the
Port of Colon on 23 October 1987, petitioners purportedly notified the consignee of the arrival of the shipments,
and its custody was turned over tothe National Ports Authority in accordance with the laws, customs regulations
and practice of trade in Panama. By an unfortunate turn ofevents, however, unauthorized persons managed to
forge the covering bills of lading and on the basis of the falsified documents, the ports authority released the
goods.

On 16 July 1988, respondent filed a formal claim with Nedlloyd for the recovery of the amount of
US$53,640.00 representing the invoice value of the shipment but to no avail.6 Claiming that petitioners are
liable for the misdelivery of the goods, respondent initiated Civil Case No. 88-45595 before the Regional Trial
Court (RTC) of Manila, Branch 52, seeking for the recovery of the amount of US$53,640.00, including the legal
interest from the date of the first demand.7
In disclaiming liability for the misdelivery of the shipments, petitioners asserted in their Answer8 that they were
never remiss in their obligation as a common carrier and the goods were discharged in good order and condition
into the custody of the National Ports Authority of Panama in accordance with the Panamanian law. They
averred that they cannot be faulted for the release of the goods to unauthorized persons, their extraordinary
responsibility as a common carrier having ceased at the time the possession of the goods were turned over to the
possession of the port authorities.

After the Pre-Trial Conference, trial on the merits ensued. Both parties offered testimonial and documentary
evidence to support their respective causes. On 29 April 2004, the RTC rendered a Decision9 ordering the
dismissal of the complaint but granted petitioners’ counterclaims. In effect, respondent was directed to pay
petitioners the amount of ₱120,000.00 as indemnification for the litigation expenses incurred by the latter. In
releasing the common carrier from liability for the misdelivery of the goods, the RTC ruled that Panama law
was duly proven during the trial and pursuant to the said statute, carriers of goods destined to any Panama port
of entry have to discharge their loads into the custody of Panama Ports Authority to make effective government
collection of port dues, customs duties and taxes. The subsequent withdrawal effected by unauthorized persons
on the strength of falsified bills of lading does not constitute misdelivery arising from the fault of the common
carrier. The decretal part of the RTC Decision reads: WHEREFORE, judgment is renderedfor [petitioners] and
against [Respondent], ordering the dismissal of the complaint and ordering the latter to pay [petitioners] the
amount of ONE HUNDRED TWENTY THOUSAND PESOS (₱120,000.00) on their counterclaims.

Cost against [Respondent].10

On appeal, the Court of Appeals reversed the findings of the RTC and held that foreign laws were not proven in
the manner provided by Section 24, Rule 132 of the Revised Rules of Court, and therefore, it cannot be given
full faith and credit.11 For failure to prove the foreign law and custom, it is presumed that foreign laws are the
sameas our local or domestic or internal law under the doctrine of processual presumption. Under the New Civil
Code, the discharge of the goods intothe custody of the ports authority therefore does not relieve the
commoncarrier from liability because the extraordinary responsibility of the common carriers lasts until actual
or constructive delivery of the cargoes tothe consignee or to the person who has the right to receive them.
Absent any proof that the notify party or the consignee was informed of the arrival of the goods, the appellate
court held that the extraordinary responsibility of common carriers remains. Accordingly, the Court of Appeals
directed petitioners to pay respondent the value of the misdelivered goods in the amount of US$53,640.00.

The Issues

Dissatisfied with the foregoing disquisition, petitioners impugned the adverse Court of Appeals Decision before
the Court on the following grounds:

I.

THERE IS ABSOLUTELY NO NEED TO PROVE PANAMANIAN LAWS BECAUSE THEYHAD

BEEN JUDICIALLY ADMITTED. AN ADMISSION BY A PARTY IN THE COURSE OF THE
PROCEEDINGS DOES NOT REQUIRE PROOF.

II.

BY PRESENTING AS EVIDENCE THE [GACETA] OFFICIAL OF REPUBLICA DE PANAMA NO.

17.596 WHERE THE APPLICABLE PANAMANIAN LAWS WERE OFFICIALLY PUBLISHED,
AND THE TESTIMONY OF EXPERT WITNESSES, PETITIONERS WERE ABLE TO PROVE THE
LAWS OF PANAMA.

III.
 IF WE HAVE TO CONCEDE TO THE COURT OF APPEALS’ FINDING THAT THERE WAS
FAILURE OF PROOF, THE LEGAL QUESTION PRESENTED TO THE HONORABLE COURT
SHOULD BE RESOLVED FAVORABLY BECAUSE THE CARRIER DISCHARGED ITS DUTY
WHETHER UNDER THE PANAMANIAN LAW OR UNDER PHILIPPINE LAW.12

The Court’s Ruling

We find the petition bereft of merit.

It is well settled that foreign laws do not prove themselves in our jurisdiction and our courts are not authorized
to take judicial notice of them. Like any other fact, they must be alleged and proved.13 To prove a foreign law,
the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the
Revised Rules of Court14 which read: SEC. 24. Proof of official record. — The record of public documents
referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy,
and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody.
If the office in which the record is kept is in a foreigncountry, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the
seal of his office.

SEC. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the
purpose of the evidence, the attestation must state,in substance, that the copy is a correct copy of the original, or
a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer,
if there be any, or if he be the clerk of a court having a seal, under the seal of such court.

For a copy of a foreign public document to be admissible, the following requisites are mandatory: (1) itmust be
attested by the officer having legal custody of the records or by his deputy; and (2) it must be accompanied by a
certificate by a secretary of the embassy or legation, consul general, consul, vice-consular or consular agent or
foreign service officer, and with the seal of his office.15 Such official publication or copy must be
accompanied, if the record is not kept in the Philippines, with a certificate that the attesting officer has the legal
custody thereof.16 The certificate may be issued by any of the authorized Philippine embassy or consular
officials stationed in the foreign country in which the record is kept, and authenticated by the seal of his
office.17 The attestation must state, in substance, that the copy is a correct copy of the original, or a specific
part thereof, as the case may be, and mustbe under the official seal of the attesting officer.18

Contrary to the contention of the petitioners, the Panamanian laws, particularly Law 42 and its Implementing
Order No. 7, were not duly proven in accordance with Rules of Evidence and as such, it cannot govern the
rights and obligations of the parties in the case at bar. While a photocopy of the Gaceta Official of the
Republica de Panama No. 17.596, the Spanish text of Law 42 which is theforeign statute relied upon by the
court a quoto relieve the common carrier from liability, was presented as evidence during the trial of the case
below, the same however was not accompanied by the required attestation and certification.

It is explicitly required by Section 24, Rule 132 of the Revised Rules of Court that a copy of the statute must be
accompanied by a certificate of the officer who has legal custody of the records and a certificate made by the
secretary of the embassy or legation, consul general, consul, vice-consular or by any officer in the foreign
service of the Philippines stationed in the foreign country, and authenticated by the seal of his office. The latter
requirement is not merely a technicality but is intended to justify the giving of full faith and credit to the
genuineness of the document in a foreign country.19 Certainly, the deposition of Mr. Enrique Cajigas, a
maritime law practitioner in the Republic of Panama, before the Philippine Consulate in Panama, is not the
certificate contemplated by law. At best, the deposition can be considered as an opinion of an expert witness
who possess the required special knowledge on the Panamanian laws but could not be recognized as proof of a
foreign law, the deponent not being the custodian of the statute who can guarantee the genuineness of the
document from a foreign country. To admit the deposition as proof of a foreign law is, likewise, a disavowal of
the rationaleof Section 24, Rule 132 of the Revised Rules of Court, which isto ensure authenticity of a foreign
law and its existence so as to justify its import and legal consequence on the event or transaction in issue. The
above rule, however, admits exceptions, and the Court in certain cases recognized that Section 25, Rule132 of
the Revised Rules of Court does not exclude the presentation of other competent evidence to prove the
existence of foreign law. In Willamete Iron and Steel Works v. Muzzal20 for instance, we allowed the foreign
law tobe established on the basis of the testimony in open court during the trial in the Philippines of an attorney-
atlaw in San Francisco, California, who quoted the particular foreign law sought to be established.21 The ruling
is peculiar to the facts. Petitioners cannot invoke the Willamete ruling to secure affirmative relief since their so
called expert witness never appeared during the trial below and his deposition, that was supposed to establish
the existence of the foreign law, was obtained ex-parte.

It is worth reiterating at this point that under the rules of private international law, a foreign law must be
properly pleaded and proved as a fact. In the absence of pleading and proof, the laws of the foreign country or
state will be presumed to be the same as our local or domestic law. This is known as processual presumption.22
While the foreign law was properly pleaded in the case at bar, it was,however, proven not in the manner
provided by Section 24, Rule 132 of the Revised Rules of Court. The decision of the RTC, which proceeds from
a disregard of specific rules cannot be recognized.

Having settled the issue on the applicable Rule, we now resolve the issue of whether or not petitioners are liable
for the misdelivery of goods under Philippine laws.

Under the New Civil Code, common carriers, from the nature of their business and for reasons of public policy,
are bound to observe extraordinary diligencein the vigilance over goods, according to the circumstances of each
case.23 Common carriers are responsible for loss, destruction or deterioration of the goods unless the same is
due to flood, storm, earthquake or other natural disaster or calamity.24 Extraordinary diligence is that extreme
care and caution which persons of unusual prudence and circumspection use for securing or preserving their
own property or rights.25 This expecting standardimposed on common carriers in contract of carrier of goods is
intended to tilt the scales in favor of the shipper who is at the mercy of the common carrier once the goods have
been lodged for the shipment.26 Hence, in case of loss of goods in transit, the common carrier is presumed
under the law to have been in fault or negligent.27

While petitioners concede that, as a common carrier, they are bound to observe extraordinary diligence in the
care and custody of the goods in their possession, they insist that they cannot be held liable for the loss of the
shipments, their extraordinary responsibility having ceased at the time the goods were discharged into the
custody of the customs arrastreoperator, who in turn took complete responsibility over the care, storage and
delivery of the cargoes.28

In contrast, respondent, submits that the fact that the shipments were not delivered to the consignee as statedin
the bill of lading or to the party designated or named by the consignee, constitutes misdelivery thereof, and
under the law it is presumed that the common carrier is at fault or negligent if the goods they transported, as in
this case, fell into the hands of persons who have no right to receive them.

We sustain the position of the respondent.

Article 1736 and Article 1738 are the provisions in the New Civil Code which define the period when the
common carrier is required to exercise diligence lasts, viz:

Article 1736. The extraordinary responsibility of the common carrier lasts from the time the goodsare
unconditionally placed in the possession of, and received by the carrier for transportation until the same are
delivered, actually or constructively, by the carrier to the consignee, or to the person who has a right to receive
them, without prejudice to the provisions of article 1738.

Article 1738. The extraordinary liability of the common carrier continues to be operative even during the time
the goods are stored in a warehouse of the carrier at the place of destination, until the consignee has been
advised of the arrival of the goods and has had reasonable opportunity thereafter to remove them or otherwise
dispose of them.

Explicit is the rule under Article 1736 of the Civil Code that the extraordinary responsibility of the common
carrier begins from the time the goods are delivered to the carrier.29 This responsibility remains in full force
and effect even when they are temporarily unloaded or stored in transit, unless the shipper or owner exercises
the right of stop page in transitu, and terminates only after the lapse of a reasonable time for the acceptance, of
the goods by the consignee or such other person entitled to receive them.30

It was further provided in the samestatute that the carrier may be relieved from the responsibility for loss or
damage to the goods upon actual or constructive delivery of the same by the carrier to the consignee or to the
person who has the right to receive them.31 In sales, actual delivery has been defined as the ceding of the
corporeal possession by the seller, and the actual apprehension of the corporeal possession by the buyer or by
some person authorized by him to receive the goods as his representative for the purpose of custody or
disposal.32 By the same token, there is actual delivery in contracts for the transport of goods when possession
has been turned over to the consignee or to his duly authorized agent and a reasonable time is given him to
remove the goods.33

In this case, there is no dispute that the custody of the goods was never turned over to the consignee or his
agents but was lost into the hands of unauthorized persons who secured possession thereof on the strength of
falsified documents. The loss or the misdelivery of the goods in the instant case gave rise to the presumption
that the common carrier is at fault or negligent.

A common carrier is presumed to have been negligent if it fails to prove that it exercised extraordinary vigilance
over the goods it transported.34 When the goods shipped are either lost or arrived in damaged condition, a
presumption arises against the carrier of its failure to observe that diligence, and there need not be an express
finding of negligence to hold it liable.35 To overcome the presumption of negligence, the common carrier must
establish by adequateproof that it exercised extraordinary diligence over the goods.36 It must do more than
merely show that some other party could be responsible for the damage.37

In the present case, petitioners failed to prove that they did exercise the degree of diligence required by law over
the goods they transported. Indeed, aside from their persistent disavowal of liability by conveniently posing an
excuse that their extraordinary responsibility isterminated upon release of the goods to the Panamanian Ports
Authority, petitioners failed to adduce sufficient evidence they exercised extraordinary care to prevent
unauthorized withdrawal of the shipments. Nothing in the New Civil Code, however, suggests, even remotely,
that the common carriers’ responsibility over the goods ceased upon delivery thereof to the custom authorities.
To the mind of this Court, the contract of carriage remains in full force and effect even after the delivery of the
goods to the port authorities; the only delivery that releases it from their obligation to observe extraordinary
care is the delivery to the consignee or his agents. Even more telling of petitioners’ continuing liability for the
goods transported to the fact that the original bills of lading up to this time, remains in the possession of the
notify party or consignee. Explicit on this point is the provision of Article 353 of the Code of Commerce which
provides:

Article 353. The legal evidence of the contract between the shipper and the carrier shall be the bills of lading, by
the contents of which the disputes which may arise regarding their execution and performance shall be decided,
no exceptions being admissible other than those of falsity and material error in the drafting.
After the contract has been complied with, the bill of lading which the carrier has issued shall be returned to
him, and by virtue of the exchange of this title with the thing transported, the respective obligations and actions
shall be considered cancelled, unless in the same act the claim which the parties may wish to reserve be reduced
to writing, with the exception of that provided for in Article 366.

In case the consignee, upon receiving the goods, cannot return the bill of lading subscribed by the carrier,
because of its loss or of any other cause, he must give the latter a receiptfor the goods delivered, this receipt
producing the same effects as the return of the bill of lading.

While surrender of the original bill of lading is not a condition precedent for the common carrier to
bedischarged from its contractual obligation, there must be, at the very least, an acknowledgement of the
delivery by signing the delivery receipt, if surrender of the original of the bill of lading is not possible.38 There
was neither surrender of the original copies of the bills of lading nor was there acknowledgment of the delivery
in the present case. This leads to the conclusion that the contract of carriage still subsists and petitioners could
be held liable for the breach thereof.

Petitioners could have offered evidence before the trial court to show that they exercised the highest degree of
care and caution even after the goods was turned over to the custom authorities, by promptly notifying the
consignee of its arrival at the P01i of Cristobal in order to afford them ample opportunity to remove the cargoes
from the port of discharge. We have scoured the records and found that neither the consignee nor the notify
paiiy was informed by the petitioners of the arrival of the goods, a crucial fact indicative of petitioners' failure to
observe extraordinary diligence in handling the goods entrusted to their custody for transport. They could have
presented proof to show that they exercised extraordinary care but they chose in vain, full reliance to their cause
on applicability of Panamanian law to local jurisdiction. It is for this reason that we find petitioners liable for
the misdelivery of the goods. It is evident from the review of the records and by the evidence adduced by the
respondent that petitioners failed to rebut the prima facie presumption of negligence. We find no compelling
reason to depa1i from the ruling of the Court of Appeals that under the contract of carriage, petitioners are liable
for the value of the misdelivcred goods.

WHEREFORE, premises considered, the petition is hereby DENIED. The assailed Resolution of the Court of
Appeals is hereby AFFIRMED.
G.R. No. 128803 September 25, 1998

ASIAVEST LIMITED, petitioner,

vs.
THE COURT OF APPEALS and ANTONIO HERAS, respondents.

DAVIDE, JR., J.:

In issue is the enforceability in the Philippines of a foreign judgment. The antecedents are summarized in the 24
August 1990 Decision1 of Branch 107 of the Regional Trial Court of Quezon City in Civil Case No. Q-52452;
thus:

The plaintiff Asiavest Limited filed a complaint on December 3, 1987 against the defendant
Antonio Heras praying that said defendant be ordered to pay to the plaintiff the amounts awarded
by the Hong Kong Court Judgment dated December 28, 1984 and amended on April 13, 1987, to
wit:

1) US$1,810,265.40 or its equivalent in Hong Kong currency at the

time of payment with legal interest from December 28, 1984 until
fully paid;

2) interest on the sum of US$1,500.00 at 9.875% per annum from

October 31, 1984 to December 28, 1984; and

3) HK$905.00 at fixed cost in the action; and

4) at least $80,000.00 representing attorney's fees, litigation

expenses and cost, with interest thereon from the date of the
judgment until fully paid.

On March 3, 1988, the defendant filed a Motion to Dismiss. However, before the court could
resolve the said motion, a fire which partially razed the Quezon City Hall Building on June 11,
1988 totally destroyed the office of this Court, together with all its records, equipment and
properties. On July 26, 1988, the plaintiff, through counsel filed a Motion for Reconstitution of
Case Records. The Court, after allowing the defendant to react thereto, granted the said Motion
and admitted the annexes attached thereto as the reconstituted records of this case per Order
dated September 6, 1988. Thereafter, the Motion to Dismiss, the resolution of which had been
deferred; was denied by the Court in its Order of October 4, 1988.

On October 19, 1988, defendant filed his Answer. The case was then set for pre-trial conference.
At the conference, the parties could not arrive at any settlement. However, they agreed on the
following stipulations of facts:

1. The defendant admits the existence of the judgment dated

December 28, 1984 as well as its amendment dated April 13, 1987,
but not necessarily the authenticity or validity thereof;

2. The plaintiff is not doing business and is not licensed to do

business in the Philippines;
 3. The residence of defendant, Antonio Heras, is New Manila,
Quezon City.

The only issue for this Court to determine is, whether or not the judgment of the Hong Kong
Court has been repelled by evidence of want of jurisdiction, want of notice to the party,
collusion, fraud or clear mistake of law or fact, such as to overcome the presumption established
in Section 50, Rule 39 of the Rules of Court in favor of foreign judgments.

In view of the admission by the defendant of the existence of the aforementioned judgment (Pls.
See Stipulations of Facts in the Order dated January 5, 1989 as amended by the Order of January
18, 1989), as well as the legal presumption in favor of the plaintiff as provided for in paragraph
(b); Sec. 50, (Ibid.), the plaintiff presented only documentary evidence to show rendition,
existence, and authentication of such judgment by the proper officials concerned (Pls. See
Exhibits "A" thru "B", with their submarkings). In addition, the plaintiff presented testimonial
and documentary evidence to show its entitlement to attorney's fees and other expenses of
litigation. . . . .

On the other hand, the defendant presented two witnesses, namely. Fortunata dela Vega and
Russel Warren Lousich.

The gist of Ms. dela Vega's testimony is to the effect that no writ of summons or copy of a
statement of claim of Asiavest Limited was ever served in the office of the Navegante Shipping
Agency Limited and/or for Mr. Antonio Heras, and that no service of the writ of summons was
either served on the defendant at his residence in New Manila, Quezon City. Her knowledge is
based on the fact that she was the personal secretary of Mr. Heras during his JD Transit days up
to the latter part of 1972 when he shifted or diversified to shipping business in Hong Kong; that
she was in-charge of all his letters and correspondence, business commitments, undertakings,
conferences and appointments, until October 1984 when Mr. Heras left Hong Kong for good;
that she was also the Officer-in-Charge or Office Manager of Navegante Shipping Agency LTD,
a Hong Kong registered and based company acting as ships agent, up to and until the company
closed shop sometime in the first quarter of 1985, when shipping business collapsed worldwide;
that the said company held office at 34-35 Connaught Road, Central Hong Kong and later
transferred to Carton House at Duddel Street, Hong Kong, until the company closed shop in
1985; and that she was certain of such facts because she held office at Caxton House up to the
first quarter of 1985.

Mr. Lousich was presented as an expert on the laws of Hong Kong, and as a representative of the
law office of the defendant's counsel who made a verification of the record of the case filed by
the plaintiff in Hong Kong against the defendant, as well as the procedure in serving Court
processes in Hong Kong.

In his affidavit (Exh. "2") which constitutes his direct testimony, the said witness stated that:

The defendant was sued on the basis of his personal guarantee of the obligations
of Compania Hermanos de Navegacion S.A. There is no record that a writ of
summons was served on the person of the defendant in Hong Kong, or that any
such attempt at service was made. Likewise, there is no record that a copy of the
judgment of the High Court was furnished or served on the defendant; anyway, it
is not a legal requirement to do so under Hong Kong laws;

a) The writ of summons or claim can be served by the solicitor

(lawyer) of the claimant or plaintiff. In Hong Kong there are no
 Court personnel who serve writs of summons and/or most other
processes.

b) If the writ of summons or claim (or complaint) is not contested,

the claimant or the plaintiff is not required to present proof of his
claim or complaint nor present evidence under oath of the claim in
order to obtain a Judgment.

c) There is no legal requirement that such a Judgment or decision

rendered by the Court in Hong Kong [to] make a recitation of the
facts or the law upon which the claim is based.

d) There is no necessity to furnish the defendant with a copy of the

Judgment or decision rendered against him.

e) In an action based on a guarantee, there is no established legal

requirement or obligation under Hong Kong laws that the creditor
must first bring proceedings against the principal debtor. The
creditor can immediately go against the guarantor.

On cross examination, Mr. Lousich stated that before he was commissioned by the law firm of
the defendant's counsel as an expert witness and to verify the records of the Hong Kong case, he
had been acting as counsel for the defendant in a number of commercial matters; that there was
an application for service of summons upon the defendant outside the jurisdiction of Hong Kong;
that there was an order of the Court authorizing service upon Heras outside of Hong Kong,
particularly in Manila or any other place in the Philippines (p. 9, TSN, 2/14/90); that there must
be adequate proof of service of summons, otherwise the Hong Kong Court will refuse to render
judgment (p. 10, ibid); that the mere fact that the Hong Kong Court rendered judgment, it can be
presumed that there was service of summons; that in this case, it is not just a presumption
because there was an affidavit stating that service was effected in [sic] a particular man here in
Manila; that such affidavit was filed by one Jose R. Fernandez of the firm Sycip Salazar on the
21st of December 1984, and stated in essence that "on Friday, the 23rd of November 1984 he
served the 4th defendant at No. 6 First Street, Quezon City by leaving it at that address with Mr.
Dionisio Lopez, the son-in-law of the 4th defendant the copy of the writ and Mr. Lopez informed
me and I barely believed that he would bring the said writ to the attention of the 4th defendant"
(pp. 11-12, ibid.); that upon filing of that affidavit, the Court was asked and granted judgment
against the 4th defendant; and that if the summons or claim is not contested, the claimant of the
plaintiff is not required to present proof of his claim or complaint or present evidence under oath
of the claim in order to obtain judgment; and that such judgment can be enforced in the same
manner as a judgment rendered after full hearing.

The trial court held that since the Hong Kong court judgment had been duly proved, it is a presumptive
evidence of a right as between the parties; hence, the party impugning it had the burden to prove want of
jurisdiction over his person. HERAS failed to discharge that burden. He did not testify to state categorically and
under oath that he never received summons. Even his own witness Lousich admitted that HERAS was served
with summons in his Quezon City residence. As to De la Vega's testimony regarding non-service of summons,
the same was hearsay and had no probative value.

As to HERAS' contention that the Hong Kong court judgment violated the Constitution and the procedural laws
of the Philippines because it contained no statements of the facts and the law on which it was based, the trial
court ruled that since the issue relate to procedural matters, the law of the forum, i.e., Hong Kong laws, should
govern. As testified by the expert witness Lousich, such legalities were not required under Hong Kong laws.
The trial Court also debunked HERAS' contention that the principle of excussion under Article 2058 of the
Civil Code of the Philippines was violated. It declared that matters of substance are subject to the law of the
place where the transaction occurred; in this case, Hong Kong laws must govern.

The trial court concluded that the Hong Kong court judgment should be recognized and given effect in this
jurisdiction for failure of HERAS to overcome the legal presumption in favor of the foreign judgment. It then
decreed; thus:

WHEREFORE, judgment is hereby rendered ordering defendant to pay to the plaintiff the
following sums or their equivalents in Philippine currency at the time of payment:
US$1,810,265.40 plus interest on the sum of US$1,500,000.00 at 9.875% per annum from
October 31, 1984 to December 28, 1984, and HK$905 as fixed cost, with legal interests on the
aggregate amount from December 28, 1984, and to pay attorney's fees in the sum of P80,000.00.

ASIAVEST moved for the reconsideration of the decision. It sought an award of judicial costs and an increase
in attorney's fees in the amount of US$19,346.45 with interest until full payment of the said obligations. On the
other hand, HERAS no longer opposed the motion and instead appealed the decision to the Court of Appeals,
which docketed the appeal as CA-G.R. CV No. 29513.

In its order2 of 2 November 1990, the trial court granted ASIAVEST's motion for reconsideration by increasing
the award of attorney's fees to "US$19,345.65 OR ITS EQUIVALENT IN PHILIPPINE CURRENCY, AND
TO PAY THE COSTS OF THIS SUIT," provided that ASIAVEST would pay the corresponding filing fees for
the increase. ASIAVEST appealed the order requiring prior payment of filing fees. However, it later withdrew
its appeal and paid the additional filing fees.

On 3 April 1997, the Court of Appeals rendered its decision3 reversing the decision of the trial court and
dismissing ASIAVEST's complaint without prejudice. It underscored the fact that a foreign judgment does not
of itself have any extraterritorial application. For it to be given effect, the foreign tribunal should have acquired
jurisdiction over the person and the subject matter. If such tribunal has not acquired jurisdiction, its judgment is
void.

The Court of Appeals agreed with the trial court that matters of remedy and procedure, such as those relating to
service of summons upon the defendant are governed by the lex fori, which was, in this case, the law of Hong
Kong. Relative thereto, it gave weight to Lousich's testimony that under the Hong Kong law, the substituted
service of summons upon HERAS effected in the Philippines by the clerk of Sycip Salazar Hernandez &
Gatmaitan firm would be valid provided that it was done in accordance with Philippine laws. It then stressed
that where the action is in personam and the defendant is in the Philippines, the summons should be personally
served on the defendant pursuant to Section 7, Rule 14 of the Rules of Court.4 Substituted service may only be
availed of where the defendant cannot be promptly served in person, the fact of impossibility of personal service
should be explained in the proof of service. It also found as persuasive HERAS' argument that instead of
directly using the clerk of the Sycip Salazar Hernandez & Gatmaitan law office, who was not authorized by the
judge of the court issuing the summons, ASIAVEST should have asked for leave of the local courts to have the
foreign summons served by the sheriff or other court officer of the place where service was to be made, or for
special reasons by any person authorized by the judge.

The Court of Appeals agreed with HERAS that "notice sent outside the state to a non-resident is unavailing to
give jurisdiction in an action against him personally for money recovery." Summons should have been
personally served on HERAS in Hong Kong, for, as claimed by ASIAVEST, HERAS was physically present in
Hong Kong for nearly 14 years. Since there was not even an attempt to serve summons on HERAS in Hong
Kong, the Hong Kong Supreme Court did not acquire jurisdiction over HERAS. Nonetheless it did not totally
foreclose the claim of ASIAVEST; thus:
 While We are not fully convinced that [HERAS] has a meritorious defense against
[ASIAVEST's] claims or that [HERAS] ought to be absolved of any liability, nevertheless, in
view of the foregoing discussion, there is a need to deviate front the findings of the lower court
in the interest of justice and fair play. This, however, is without prejudice to whatever action
[ASIAVEST] might deem proper in order to enforce its claims against [HERAS].

Finally, the Court of Appeals also agreed with HERAS that it was necessary that evidence supporting the
validity of the foreign judgment be submitted, and that our courts are not bound to give effect to foreign
judgments which contravene our laws and the principle of sound morality and public policy.

ASIAVEST forthwith filed the instant petition alleging that the Court of Appeals erred in ruling that

I.

. . . IT WAS NECESSARY FOR [ASIAVEST] TO PRESENT EVIDENCE "SUPPORTING

THE VALIDITY OF THE JUDGMENT";

II.

. . . THE SERVICE OF SUMMONS ON [HERAS] WAS DEFECTIVE UNDER PHILIPPINES

LAW;

III.

. . . SUMMONS SHOULD HAVE BEEN PERSONALLY SERVED ON HERAS IN HONG

KONG;

IV.

. . . THE HONG KONG SUMMONS SHOULD HAVE BEEN SERVED WITH LEAVE OF
PHILIPPINE COURTS;

V.

. . . THE FOREIGN JUDGMENT "CONTRAVENES PHILIPPINE LAWS, THE PRINCIPLES

OF SOUND MORALITY, AND THE PUBLIC POLICY OF THE PHILIPPINES.

Being interrelated, we shall take up together the assigned errors.

Under paragraph (b) of Section 50, Rule 39 of the Rules of Court,5 which was the governing law at the time this
case was decided by the trial court and respondent Court of Appeals, a foreign judgment against a person
rendered by a court having jurisdiction to pronounce the judgment is presumptive evidence of a right as
between the parties and their successors in interest by the subsequent title. However, the judgment may be
repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law
or fact.

Also, Section 3(n) of Rule 131 of the New Rules of Evidence provides that in the absence of proof to the
contrary, a court, or judge acting as such, whether in the Philippines or elsewhere, is presumed to have acted in
the lawful exercise of jurisdiction.
Hence, once the authenticity of the foreign judgment is proved, the burden to repel it on grounds provided for in
paragraph (b) of Section 50, Rule 39 of the Rules of Court is on the party challenging the foreign judgment —
HERAS in this case.

At the pre-trial conference, HERAS admitted the existence of the Hong Kong judgment. On the other hand,
ASIAVEST presented evidence to prove rendition, existence, and authentication of the judgment by the proper
officials. The judgment is thus presumed to be valid and binding in the country from which it comes, until the
contrary is shown. 6 Consequently, the first ground relied upon by ASIAVEST has merit. The presumption of
validity accorded foreign judgment would be rendered meaningless were the party seeking to enforce it be
required to first establish its validity.

The main argument raised against the Hong Kong judgment is that the Hong Kong Supreme Court did not
acquire jurisdiction over the person of HERAS. This involves the issue of whether summons was properly and
validly served on HERAS. It is settled that matters of remedy and procedure such as those relating to the service
of process upon the defendant are governed by the lex fori or the law of the forum, 7 i.e., the law of Hong Kong
in this case. HERAS insisted that according to his witness Mr. Lousich, who was presented as an expert on
Hong Kong laws, there was no valid service of summons on him.

In his counter-affidavit,8 which served as his direct testimony per agreement of the parties,9 Lousich declared
that the record of the Hong Kong case failed to show that a writ of summons was served upon HERAS in Hong
Kong or that any such attempt was made. Neither did the record show that a copy of the judgment of the court
was served on HERAS. He stated further that under Hong Kong laws (a) a writ of summons could be served by
the solicitor of the claimant or plaintiff; and (b) where the said writ or claim was not contested, the claimant or
plaintiff was not required to present proof under oath in order to obtain judgment.

On cross-examination by counsel for ASIAVEST, Lousich' testified that the Hong Kong court authorized
service of summons on HERAS outside of its jurisdiction, particularly in the Philippines. He admitted also the
existence of an affidavit of one Jose R. Fernandez of the Sycip Salazar Hernandez & Gatmaitan law firm stating
that he (Fernandez) served summons on HERAS on 13 November 1984 at No. 6, 1st St., Quezon City, by
leaving a copy with HERAS's son-in-law Dionisio Lopez. 10 On redirect examination, Lousich declared that
such service of summons would be valid under Hong Kong laws provided that it was in accordance with
Philippine laws. 11

We note that there was no objection on the part of ASIAVEST on the qualification of Mr. Lousich as an expert
on the Hong Kong law. Under Sections 24 and 25, Rule 132 of the New Rules of Evidence, the record of public
documents of a sovereign authority, tribunal, official body, or public officer may be proved by (1) an official
publication thereof or (2) a copy attested by the officer having the legal custody thereof, which must be
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. The
certificate may be issued by a secretary of the embassy or legation, consul general, consul, vice consul, or
consular agent, or any officer in the foreign service of the Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal of his office. The attestation must state, in substance, that the
copy is a correct copy of the original, or a specific part thereof, as the case may be, and must be under the
official seal of the attesting officer.

Nevertheless, the testimony of an expert witness may be allowed to prove a foreign law. An authority 12 on
private international law thus noted:

Although it is desirable that foreign law be proved in accordance with the above rule, however,
the Supreme Court held in the case of Willamette Iron and Steel Works v. Muzzal, 13 that Section
41, Rule 123 (Section 25, Rule 132 of the Revised Rules of Court) does not exclude the
presentation of other competent evidence to prove the existence of a foreign law. In that case, the
Supreme Court considered the testimony under oath of an attorney-at-law of San Francisco,
 California, who quoted verbatim a section of California Civil Code and who stated that the same
was in force at the time the obligations were contracted, as sufficient evidence to establish the
existence of said law. Accordingly, in line with this view, the Supreme Court in the Collector of
Internal Revenue v. Fisher et al., 14 upheld the Tax Court in considering the pertinent law of
California as proved by the respondents' witness. In that case, the counsel for respondent
"testified that as an active member of the California Bar since 1951, he is familiar with the
revenue and taxation laws of the State of California. When asked by the lower court to state the
pertinent California law as regards exemption of intangible personal properties, the witness cited
Article 4, Sec. 13851 (a) & (b) of the California Internal and Revenue Code as published in
Derring's California Code, a publication of Bancroft-Whitney Co., Inc. And as part of his
testimony, a full quotation of the cited section was offered in evidence by respondents."
Likewise, in several naturalization cases, it was held by the Court that evidence of the law of a
foreign country on reciprocity regarding the acquisition of citizenship, although not meeting the
prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light
of all the circumstances, the Court is "satisfied of the authenticity of the written proof offered."
15 Thus, in, a number of decisions, mere authentication of the Chinese Naturalization Law by the
Chinese Consulate General of Manila was held to be competent proof of that law. 16

There is, however, nothing in the testimony of Mr. Lousich that touched on the specific law of Hong Kong in
respect of service of summons either in actions in rem or in personam, and where the defendant is either a
resident or nonresident of Hong Kong. In view of the absence of proof of the Hong Kong law on this particular
issue, the presumption of identity or similarity or the so-called processual presumption shall come into play. It
will thus be presumed that the Hong Kong law on the matter is similar to the Philippine law. 17

As stated in Valmonte vs. Court of Appeals, 18 it will be helpful to determine first whether the action is in
personam, in rem, or quasi in rem because the rules on service of summons under Rule 14 of the Rules of Court
of the Philippines apply according to the nature of the action.

An action in personam is an action against a person on the basis of his personal liability. An action in rem is an
action against the thing itself instead of against the person. 19 An action quasi in rem is one wherein an
individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the
obligation or lien burdening the property. 20

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try
and decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in
court can be acquired by personal service of summons as provided under Section 7, Rule 14 of the Rules of
Court. If he cannot be personally served with summons within a reasonable time, substituted service may be
made in accordance with Section 8 of said Rule. If he is temporarily out of the country, any of the following
modes of service may be resorted to: (1) substituted service set forth in Section 8; 21 (2) personal service
outside the country, with leave of court; (3) service by publication, also with leave of court; 22 or (4) any other
manner the court may deem sufficient. 23

However, in an action in personam wherein the defendant is a non-resident who does not voluntarily submit
himself to the authority of the court, personal service of summons within the state is essential to the acquisition
of jurisdiction over her person. 24 This method of service is possible if such defendant is physically present in
the country. If he is not found therein, the court cannot acquire jurisdiction over his person and therefore cannot
validly try and decide the case against him. 25 An exception was laid down in Gemperle v. Schenker 26 wherein
a non-resident was served with summons through his wife, who was a resident of the Philippines and who was
his representatives and attorney-in-fact in a prior civil case filed by him; moreover, the second case was a mere
offshoot of the first case.
On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.
Nonetheless summons must be served upon the defendant not for the purpose of vesting the court with
jurisdiction but merely for satisfying the due process requirements. 27 Thus, where the defendant is a non-
resident who is not found in the Philippines and (1) the action affects the personal status of the plaintiff; (2) the
action relates to, or the subject matter of which is property in the Philippines in which the defendant has or
claims a lien or interest; (3) the action seeks the exclusion of the defendant from any interest in the property
located in the Philippines; or (4) the property of the defendant has been attached in the Philippines — service of
summons may be effected by (a) personal service out of the country, with leave of court; (b) publication, also
with leave of court, or (c) any other manner the court may deem sufficient. 28

In the case at bar, the action filed in Hong Kong against HERAS was in personam, since it was based on his
personal guarantee of the obligation of the principal debtor. Before we can apply the foregoing rules, we must
determine first whether HERAS was a resident of Hong Kong.

Fortunata de la Vega, HERAS's personal secretary in Hong Kong since 1972 until 1985, 29 testified that
HERAS was the President and part owner of a shipping company in Hong Kong during all those times that she
served as his secretary. He had in his employ a staff of twelve. 30 He had "business commitments,
undertakings, conferences, and appointments until October 1984 when [he] left Hong Kong for good," 31
HERAS's other witness, Russel Warren Lousich, testified that he had acted as counsel for HERAS "for a
number of commercial matters." 32 ASIAVEST then infers that HERAS was a resident of Hong Kong because
he maintained a business there.

It must be noted that in his Motion to Dismiss, 33 as well as in his

Answer 34 to ASIAVEST's complaint for the enforcement of the Hong Kong court judgment, HERAS
maintained that the Hong Kong court did not have jurisdiction over him because the fundamental rule is that
jurisdiction in personam over non-resident defendants, so as to sustain a money judgment, must be based upon
personal service of summons within the state which renders the judgment. 35

For its part, ASIAVEST, in its Opposition to the Motion to Dismiss 36 contended: "The question of Hong Kong
court's 'want of jurisdiction' is therefore a triable issue if it is to be pleaded by the defendant to 'repel' the foreign
judgment. Facts showing jurisdictional lack (e.g. that the Hong Kong suit was in personam, that defendant was
not a resident of Hong Kong when the suit was filed or that he did not voluntarily submit to the Hong Kong
court's jurisdiction) should be alleged and proved by the defendant." 37

In his Reply (to the Opposition to Motion to Dismiss), 38 HERAS argued that the lack of jurisdiction over his
person was corroborated by ASIAVEST's allegation in the complaint that he "has his residence at No. 6, 1st St.,
New Manila, Quezon City, Philippines." He then concluded that such judicial admission amounted to evidence
that he was and is not a resident of Hong Kong.

Significantly, in the pre-trial conference, the parties came up with stipulations of facts, among which was that
"the residence of defendant, Antonio Heras, is New Manila, Quezon City." 39

We note that the residence of HERAS insofar as the action for the enforcement of the Hong Kong court
judgment is concerned, was never in issue. He never challenged the service of summons on him through a
security guard in his Quezon City residence and through a lawyer in his office in that city. In his Motion to
Dismiss, he did not question the jurisdiction of the Philippine court over his person on the ground of invalid
service of summons. What was in issue was his residence as far as the Hong Kong suit was concerned. We
therefore conclude that the stipulated fact that HERAS "is a resident of New Manila, Quezon City, Philippines"
refers to his residence at the time jurisdiction over his person was being sought by the Hong Kong court. With
that stipulation of fact, ASIAVEST cannot now claim that HERAS was a resident of Hong Kong at the time.
Accordingly, since HERAS was not a resident of Hong Kong and the action against him was, indisputably, one
in personam, summons should have been personally served on him in Hong Kong. The extraterritorial service in
the Philippines was therefore invalid and did not confer on the Hong Kong court jurisdiction over his person. It
follows that the Hong Kong court judgment cannot be given force and effect here in the Philippines for having
been rendered without jurisdiction.

Even assuming that HERAS was formerly a resident of Hong Kong, he was no longer so in November 1984
when the extraterritorial service of summons was attempted to be made on him. As declared by his secretary,
which statement was not disputed by ASIAVEST, HERAS left Hong Kong in October 1984 "for good." 40 His
absence in Hong Kong must have been the reason why summons was not served on him therein; thus,
ASIAVEST was constrained to apply for leave to effect service in the Philippines, and upon obtaining a
favorable action on the matter, it commissioned the Sycip Salazar Hernandez & Gatmaitan law firm to serve the
summons here in the Philippines.

In Brown v. Brown, 41 the defendant was previously a resident of the Philippines. Several days after a criminal
action for concubinage was filed against him, he abandoned the Philippines. Later, a proceeding quasi in rem
was instituted against him. Summons in the latter case was served on the defendant's attorney-in-fact at the
latter's address. The Court held that under the facts of the case, it could not be said that the defendant was "still
a resident of the Philippines because he ha[d] escaped to his country and [was] therefore an absentee in the
Philippines." As such, he should have been "summoned in the same manner as one who does not reside and is
not found in the Philippines."

Similarly, HERAS, who was also an absentee, should have been served with summons in the same manner as a
non-resident not found in Hong Kong. Section 17, Rule 14 of the Rules of Court providing for extraterritorial
service will not apply because the suit against him was in personam. Neither can we apply Section 18, which
allows extraterritorial service on a resident defendant who is temporarily absent from the country, because even
if HERAS be considered as a resident of Hong Kong, the undisputed fact remains that he left Hong Kong not
only "temporarily" but "for good."

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered DENYING the petition in this case and
AFFIRMING the assailed judgment of the Court of Appeals in CA-G.R. CV No. 29513.

No costs.
MANUFACTURERS HANOVER TRUST CO. and/or CHEMICAL BANK, petitioners, vs. RAFAEL MA.
GUERRERO, respondent.

DECISION

CARPIO, J.:

The Case

This is a petition for review under Rule 45 of the Rules of Court to set aside the Court of Appeals 1[1] Decision of
August 24, 1998 and Resolution of December 14, 1998 in CA-G.R. SP No. 423102[2] affirming the trial courts
denial of petitioners motion for partial summary judgment.

The Antecedents

On May 17, 1994, respondent Rafael Ma. Guerrero (Guerrero for brevity) filed a complaint for damages against
petitioner Manufacturers Hanover Trust Co. and/or Chemical Bank (the Bank for brevity) with the Regional
Trial Court of Manila (RTC for brevity). Guerrero sought payment of damages allegedly for (1) illegally
withheld taxes charged against interests on his checking account with the Bank; (2) a returned check worth
US$18,000.00 due to signature verification problems; and (3) unauthorized conversion of his account. Guerrero
amended his complaint on April 18, 1995.

On September 1, 1995, the Bank filed its Answer alleging, inter alia, that by stipulation Guerreros account is
governed by New York law and this law does not permit any of Guerreros claims except actual damages.
Subsequently, the Bank filed a Motion for Partial Summary Judgment seeking the dismissal of Guerreros claims
for consequential, nominal, temperate, moral and exemplary damages as well as attorneys fees on the same
ground alleged in its Answer. The Bank contended that the trial should be limited to the issue of actual
damages. Guerrero opposed the motion.

The affidavit of Alyssa Walden, a New York attorney, supported the Banks Motion for Partial Summary
Judgment. Alyssa Waldens affidavit (Walden affidavit for brevity) stated that Guerreros New York bank
account stipulated that the governing law is New York law and that this law bars all of Guerreros claims except
actual damages. The Philippine Consular Office in New York authenticated the Walden affidavit.

The RTC denied the Banks Motion for Partial Summary Judgment and its motion for reconsideration on March
6, 1996 and July 17, 1996, respectively. The Bank filed a petition for certiorari and prohibition with the Court
of Appeals assailing the RTC Orders. In its Decision dated August 24, 1998, the Court of Appeals dismissed the
petition. On December 14, 1998, the Court of Appeals denied the Banks motion for reconsideration.

Hence, the instant petition.

The Ruling of the Court of Appeals

The Court of Appeals sustained the RTC orders denying the motion for partial summary judgment. The Court of
Appeals ruled that the Walden affidavit does not serve as proof of the New York law and jurisprudence relied
on by the Bank to support its motion. The Court of Appeals considered the New York law and jurisprudence as
public documents defined in Section 19, Rule 132 of the Rules on Evidence, as follows:

SEC. 19. Classes of Documents. For the purpose of their presentation in evidence, documents are either public
or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of the Philippines, or of a foreign country;

x x x.

The Court of Appeals opined that the following procedure outlined in Section 24, Rule 132 should be followed
in proving foreign law:

SEC. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19,
when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by
the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in
a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul,
vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office.

The Court of Appeals likewise rejected the Banks argument that Section 2, Rule 34 of the old Rules of Court
allows the Bank to move with the supporting Walden affidavit for partial summary judgment in its favor. The
Court of Appeals clarified that the Walden affidavit is not the supporting affidavit referred to in Section 2, Rule
34 that would prove the lack of genuine issue between the parties. The Court of Appeals concluded that even if
the Walden affidavit is used for purposes of summary judgment, the Bank must still comply with the procedure
prescribed by the Rules to prove the foreign law.

The Issues

The Bank contends that the Court of Appeals committed reversible error in -

x x x HOLDING THAT [THE BANKS] PROOF OF FACTS TO SUPPORT ITS MOTION FOR SUMMARY
JUDGMENT MAY NOT BE GIVEN BY AFFIDAVIT;

x x x HOLDING THAT [THE BANKS] AFFIDAVIT, WHICH PROVES FOREIGN LAW AS A FACT, IS
HEARSAY AND THEREBY CANNOT SERVE AS PROOF OF THE NEW YORK LAW RELIED UPON
BY PETITIONERS IN THEIR MOTION FOR SUMMARY JUDGMENT x x x.3[3]

First, the Bank argues that in moving for partial summary judgment, it was entitled to use the Walden affidavit
to prove that the stipulated foreign law bars the claims for consequential, moral, temperate, nominal and
exemplary damages and attorneys fees. Consequently, outright dismissal by summary judgment of these claims
is warranted.
Second, the Bank claims that the Court of Appeals mixed up the requirements of Rule 35 on summary
judgments and those of a trial on the merits in considering the Walden affidavit as hearsay. The Bank points out
that the Walden affidavit is not hearsay since Rule 35 expressly permits the use of affidavits.

Lastly, the Bank argues that since Guerrero did not submit any opposing affidavit to refute the facts contained
in the Walden affidavit, he failed to show the need for a trial on his claims for damages other than actual.

The Courts Ruling

The petition is devoid of merit.

The Bank filed its motion for partial summary judgment pursuant to Section 2, Rule 34 of the old Rules of
Court which reads:

Section 2. Summary judgment for defending party. A party against whom a claim, counterclaim, or cross-claim
is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits for a summary
judgment in his favor as to all or any part thereof.

A court may grant a summary judgment to settle expeditiously a case if, on motion of either party, there appears
from the pleadings, depositions, admissions, and affidavits that no important issues of fact are involved, except
the amount of damages. In such event, the moving party is entitled to a judgment as a matter of law. 4[4]

In a motion for summary judgment, the crucial question is: are the issues raised in the pleadings genuine, sham
or fictitious, as shown by affidavits, depositions or admissions accompanying the motion?5[5]

A genuine issue means an issue of fact which calls for the presentation of evidence as distinguished from an
issue which is fictitious or contrived so as not to constitute a genuine issue for trial.6[6]

A perusal of the parties respective pleadings would show that there are genuine issues of fact that necessitate
formal trial. Guerreros complaint before the RTC contains a statement of the ultimate facts on which he relies
for his claim for damages. He is seeking damages for what he asserts as illegally withheld taxes charged against
interests on his checking account with the Bank, a returned check worth US$18,000.00 due to signature
verification problems, and unauthorized conversion of his account. In its Answer, the Bank set up its defense
that the agreed foreign law to govern their contractual relation bars the recovery of damages other than actual.
Apparently, facts are asserted in Guerreros complaint while specific denials and affirmative defenses are set out
in the Banks answer.

True, the court can determine whether there are genuine issues in a case based merely on the affidavits or
counter-affidavits submitted by the parties to the court. However, as correctly ruled by the Court of Appeals, the
Banks motion for partial summary judgment as supported by the Walden affidavit does not demonstrate that
Guerreros claims are sham, fictitious or contrived. On the contrary, the Walden affidavit shows that the facts
and material allegations as pleaded by the parties are disputed and there are substantial triable issues
necessitating a formal trial.
There can be no summary judgment where questions of fact are in issue or where material allegations of the
pleadings are in dispute.7[7] The resolution of whether a foreign law allows only the recovery of actual damages
is a question of fact as far as the trial court is concerned since foreign laws do not prove themselves in our
courts.8[8] Foreign laws are not a matter of judicial notice.9[9] Like any other fact, they must be alleged and
proven. Certainly, the conflicting allegations as to whether New York law or Philippine law applies to
Guerreros claims present a clear dispute on material allegations which can be resolved only by a trial on the
merits.

Under Section 24 of Rule 132, the record of public documents of a sovereign authority or tribunal may be
proved by (1) an official publication thereof or (2) a copy attested by the officer having the legal custody
thereof. Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with
a certificate that the attesting officer has the legal custody thereof. The certificate may be issued by any of the
authorized Philippine embassy or consular officials stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office. The attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be, and must be under the official seal of the
attesting officer.

Certain exceptions to this rule were recognized in Asiavest Limited v. Court of Appeals10[10] which held that:

x x x:

Although it is desirable that foreign law be proved in accordance with the above rule, however, the Supreme
Court held in the case of Willamette Iron and Steel Works v. Muzzal, that Section 41, Rule 123 (Section 25,
Rule 132 of the Revised Rules of Court) does not exclude the presentation of other competent evidence to prove
the existence of a foreign law. In that case, the Supreme Court considered the testimony under oath of an
attorney-at-law of San Francisco, California, who quoted verbatim a section of California Civil Code and who
stated that the same was in force at the time the obligations were contracted, as sufficient evidence to establish
the existence of said law. Accordingly, in line with this view, the Supreme Court in the Collector of Internal
Revenue v. Fisher et al., upheld the Tax Court in considering the pertinent law of California as proved by the
respondents witness. In that case, the counsel for respondent testified that as an active member of the California
Bar since 1951, he is familiar with the revenue and taxation laws of the State of California. When asked by the
lower court to state the pertinent California law as regards exemption of intangible personal properties, the
witness cited Article 4, Sec. 13851 (a) & (b) of the California Internal and Revenue Code as published in
Derrings California Code, a publication of Bancroft-Whitney Co., Inc. And as part of his testimony, a full
quotation of the cited section was offered in evidence by respondents. Likewise, in several naturalization cases,
it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of
citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable
action, if, in the light of all the circumstances, the Court is satisfied of the authenticity of the written proof
offered. Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese
Consulate General of Manila was held to be competent proof of that law. (Emphasis supplied)

The Bank, however, cannot rely on Willamette Iron and Steel Works v. Muzzal or Collector of Internal
Revenue v. Fisher to support its cause. These cases involved attorneys testifying in open court during the trial
in the Philippines and quoting the particular foreign laws sought to be established. On the other hand, the
Walden affidavit was taken abroad ex parte and the affiant never testified in open court. The Walden affidavit
cannot be considered as proof of New York law on damages not only because it is self-serving but also because
it does not state the specific New York law on damages. We reproduce portions of the Walden affidavit as
follows:

3. In New York, [n]ominal damages are damages in name only, trivial sums such as six cents or $1. Such
damages are awarded both in tort and contract cases when the plaintiff establishes a cause of action against the
defendant, but is unable to prove actual damages. Dobbs, Law of Remedies, 3.32 at 294 (1993). Since Guerrero
is claiming for actual damages, he cannot ask for nominal damages.

4. There is no concept of temperate damages in New York law. I have reviewed Dobbs, a well-respected
treatise, which does not use the phrase temperate damages in its index. I have also done a computerized search
for the phrase in all published New York cases, and have found no cases that use it. I have never heard the
phrase used in American law.

5. The Uniform Commercial Code (UCC) governs many aspects of a Banks relationship with its depositors. In
this case, it governs Guerreros claim arising out of the non-payment of the $18,000 check. Guerrero claims that
this was a wrongful dishonor. However, the UCC states that justifiable refusal to pay or accept as opposed to
dishonor, occurs when a bank refuses to pay a check for reasons such as a missing indorsement, a missing or
illegible signature or a forgery, 3-510, Official Comment 2. .. to the Complaint, MHT returned the check
because it had no signature card on . and could not verify Guerreros signature. In my opinion, consistent with
the UCC, that is a legitimate and justifiable reason not to pay.

6. Consequential damages are not available in the ordinary case of a justifiable refusal to pay. UCC 1-106
provides that neither consequential or special or punitive damages may be had except as specifically provided in
the Act or by other rule of law. UCC 4-103 further provides that consequential damages can be recovered only
where there is bad faith. This is more restrictive than the New York common law, which may allow
consequential damages in a breach of contract case (as does the UCC where there is a wrongful dishonor).

7. Under New York law, requests for lost profits, damage to reputation and mental distress are considered
consequential damages. Kenford Co., Inc. v. Country of Erie, 73 N.Y.2d 312, 319, 540 N.Y.S.2d 1, 4-5 (1989)
(lost profits); Motif Construction Corp. v. Buffalo Savings Bank, 50 A.D.2d 718, 374 N.Y.S..2d 868, 869-70
(4th Dept 1975) damage to reputation); Dobbs, Law of Remedies 12.4(1) at 63 (emotional distress).

8. As a matter of New York law, a claim for emotional distress cannot be recovered for a breach of contract.
Geler v. National Westminster Bank U.S.A., 770 F. Supp. 210, 215 (S.D.N.Y. 1991); Pitcherello v. Moray
Homes, Ltd., 150 A.D.2d 860,540 N.Y.S.2d 387, 390 (3d Dept 1989) Martin v. Donald Park Acres, 54 A.D.2d
975, 389 N.Y.S..2d 31, 32 (2nd Dept 1976). Damage to reputation is also not recoverable for a contract. Motif
Construction Corp. v. Buffalo Savings Bank, 374 N.Y.S.2d at 869-70.

9. In cases where the issue is the breach of a contract to purchase stock, New York courts will not take into
consideration the performance of the stock after the breach. Rather, damages will be based on the value of the
stock at the time of the breach, Aroneck v. Atkin, 90 A.D.2d 966, 456 N.Y.S.2d 558, 559 (4th Dept 1982), app.
den. 59 N.Y.2d 601, 449 N.E.2d 1276, 463 N.Y.S.2d 1023 (1983).

10. Under New York law, a party can only get consequential damages if they were the type that would naturally
arise from the breach and if they were brought within the contemplation of parties as the probable result of the
breach at the time of or prior to contracting. Kenford Co., Inc. v. Country of Erie, 73 N.Y.2d 312, 319, 540
N.Y.S.2d 1, 3 (1989), (quoting Chapman v. Fargo, 223 N.Y. 32, 36 (1918).

11. Under New York law, a plaintiff is not entitled to attorneys fees unless they are provided by contract or
statute. E.g., Geler v. National Westminster Bank, 770 F. Supp. 210, 213 (S.D.N.Y. 1991); Camatron Sewing
Mach, Inc. v. F.M. Ring Assocs., Inc., 179 A.D.2d 165, 582 N.Y.S.2d 396 (1st Dept 1992); Stanisic v. Soho
Landmark Assocs., 73 A.D.2d 268, 577 N.Y.S.2d 280, 281 (1st Dept 1991). There is no statute that permits
attorneys fees in a case of this type.

12. Exemplary, or punitive damages are not allowed for a breach of contract, even where the plaintiff claims the
defendant acted with malice. Geler v. National Westminster Bank, 770 F.Supp. 210, 215 (S.D.N.Y. 1991);
Catalogue Service of chester11[11]_v. Insurance Co. of North America, 74 A.D.2d 837, 838, 425 N.Y.S.2d 635,
637 (2d Dept 1980); Senior v. Manufacturers Hanover Trust Co., 110 A.D.2d 833, 488 N.Y.S.2d 241, 242 (2d
Dept 1985).

13. Exemplary or punitive damages may be recovered only where it is alleged and proven that the wrong
supposedly committed by defendant amounts to a fraud aimed at the public generally and involves a high moral
culpability. Walker v. Sheldon, 10 N.Y.2d 401, 179 N.E.2d 497, 223 N.Y.S.2d 488 (1961).

14. Furthermore, it has been consistently held under New York law that exemplary damages are not available
for a mere breach of contract for in such a case, as a matter of law, only a private wrong and not a public right is
involved. Thaler v. The North Insurance Company, 63 A.D.2d 921, 406 N.Y.S.2d 66 (1st Dept 1978).12[12]

The Walden affidavit states conclusions from the affiants personal interpretation and opinion of the facts of the
case vis a vis the alleged laws and jurisprudence without citing any law in particular. The citations in the
Walden affidavit of various U.S. court decisions do not constitute proof of the official records or decisions of
the U.S. courts. While the Bank attached copies of some of the U.S. court decisions cited in the Walden
affidavit, these copies do not comply with Section 24 of Rule 132 on proof of official records or decisions of
foreign courts.

The Banks intention in presenting the Walden affidavit is to prove New York law and jurisprudence. However,
because of the failure to comply with Section 24 of Rule 132 on how to prove a foreign law and decisions of
foreign courts, the Walden affidavit did not prove the current state of New York law and jurisprudence. Thus,
the Bank has only alleged, but has not proved, what New York law and jurisprudence are on the matters at
issue.

Next, the Bank makes much of Guerreros failure to submit an opposing affidavit to the Walden affidavit.
However, the pertinent provision of Section 3, Rule 35 of the old Rules of Court did not make the submission of
an opposing affidavit mandatory, thus:

SEC. 3. Motion and proceedings thereon. The motion shall be served at least ten (10) days before the time
specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. After
the hearing, the judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on
file, together with the affidavits, show that, except as to the amount of damages, there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law. (Emphasis supplied)

It is axiomatic that the term may as used in remedial law, is only permissive and not mandatory. 13[13]

Guerrero cannot be said to have admitted the averments in the Banks motion for partial summary judgment and
the Walden affidavit just because he failed to file an opposing affidavit. Guerrero opposed the motion for partial
summary judgment, although he did not present an opposing affidavit. Guerrero may not have presented an
opposing affidavit, as there was no need for one, because the Walden affidavit did not establish what the Bank
intended to prove. Certainly, Guerrero did not admit, expressly or impliedly, the veracity of the statements in
the Walden affidavit. The Bank still had the burden of proving New York law and jurisprudence even if
Guerrero did not present an opposing affidavit. As the party moving for summary judgment, the Bank has the
burden of clearly demonstrating the absence of any genuine issue of fact and that any doubt as to the existence
of such issue is resolved against the movant.14[14]

Moreover, it would have been redundant and pointless for Guerrero to submit an opposing affidavit considering
that what the Bank seeks to be opposed is the very subject matter of the complaint. Guerrero need not file an
opposing affidavit to the Walden affidavit because his complaint itself controverts the matters set forth in the
Banks motion and the Walden affidavit. A party should not be made to deny matters already averred in his
complaint.

There being substantial triable issues between the parties, the courts a quo correctly denied the Banks motion
for partial summary judgment. There is a need to determine by presentation of evidence in a regular trial if the
Bank is guilty of any wrongdoing and if it is liable for damages under the applicable laws.

This case has been delayed long enough by the Banks resort to a motion for partial summary judgment.
Ironically, the Bank has successfully defeated the very purpose for which summary judgments were devised in
our rules, which is, to aid parties in avoiding the expense and loss of time involved in a trial.

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated August 24, 1998 and the
Resolution dated December 14, 1998 of the Court of Appeals in CA-G.R. SP No. 42310 is AFFIRMED.

SO ORDERED.