Any claim for alleged damages or other causes of
action should be filed in an entirely separate and
RULE 6
Chavez vs Sandiganbayan and Enrile
Under the circumstances of this case, we rule that the
charges pressed by respondent Enrile for damages
under Article 32 of the Civil Code arising from the
filing of an alleged harassment suit with malice and
evident bad faith do not constitute a compulsory
counterclaim. To vindicate his rights, Senator Enrile
has to file a separate and distinct civil action for
damages against the Solicitor General. In the case of
Tiu Po v. Bautista, we ruled that damages claimed to
have been suffered as a consequence of an action filed
against the petitioner must be pleaded in the same
action as a compulsory counterclaim. We were
referring, however, to a case filed by the private
respondent against the petitioners or parties in the
litigation. In the present case, the counterclaim was
filed against the lawyer, not against the party plaintiff
itself.
To allow a counterclaim against a lawyer who files a
complaint for his clients, who is merely their
representative in court and not a plaintiff or
complainant in the case would lead to mischievous
consequences. A lawyer owes his client entire
devotion to his genuine interest, warm zeal in the
maintenance and defense of his rights and the exertion
of his utmost learning and ability. A lawyer cannot
properly attend to his duties towards his client if, in
the same case, he is kept busy defending himself.
The problem is particularly perplexing for the Solicitor
General. As counsel of the Republic, the Solicitor
General has to appear in controversial and politically
charged cases. It is not unusual for high officials of the
Government to unwittingly use shortcuts in the
zealous desire to expedite executive programs or
reforms. The Solicitor General cannot look at these
cases with indifferent neutrality. His perception of
national interest and obedience to instructions from
above may compel him to take a stance which to a
respondent may appear too personal and biased. It is
likewise unreasonable to require Government
Prosecutors to defend themselves against
counterclaims in the very same cases they are
prosecuting. As earlier stated, we do not suggest that a
lawyer enjoys a special immunity from damage suits.
However, when he acts in the name of a client, he
should not be sued on a counterclaim in the very same
case he has filed only as counsel and not as a party.
distinct civil action.
Baclayon vs Sandigabayan
The rule is well established that once a decision has
become final and executory the only jurisdiction left
with the trial court is to order its execution. To require
now the trial court in a hearing supplementary to
execution, to receive private respondents’ evidence to
prove that they are builders in good faith of the
improvements and the value of said improvements, is
to disturb a final and executory decision; which may
even cause its substantial amendment. It appears that
the private respondent’s opposition to the motion for
the execution of the judgment, possession and
demolition is their last straw to prevent the
satisfaction of the judgment. Sad to say, We have to cut
this straw.
We disagree with the respondent court that any
counterclaim for reimbursement of the value of the
improvements thereon by reason of private
respondents’ being builders in good faith, which
presupposes that they are not the owners of the land,
would run counter to the defense of ownership and
therefore could not have been set up before the trial
court. It should be emphasized that Rule 8, Section 2 of
the Rules of Court allows a party to set forth two or
more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense
or in separate causes of action or defenses. This Court,
in Castle Bros., Wolf and Sons v. Go-Juno, 7 Phil. 144,
even held that inconsistent defenses may be pleaded
alternatively or hypothetically provided that each
defense is consistent with itself.
Although the alternative defense of being builders in
good faith is only permissive, the counterclaim for
reimbursement of the value of the improvements is in
the nature of a compulsory counterclaim. Thus, the
failure by the private respondents to set it up bars
their right to raise it in a subsequent litigation (Rule 9,
Section 4 of the Rules of Court). While We realize the
plight of the private respondents, the rule on
compulsory counterclaim is designed to enable the
disposition of the whole controversy at one time and
in one action. The philosophy of the rule is to
discourage multiplicity of suits.
Spouses Mendiola vs Court of Appeals
A counterclaim is compulsory if:
 (a) it arises out of or is necessarily connected with
the transaction or occurrence which is the subject
matter of the opposing party’s claim;
(b) it does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction; and
(c) the court has jurisdiction to entertain the claim
both as to its amount and nature, except that in an
original action before the RTC, the counterclaim
may be considered compulsory regardless of the
amount.
Bar by res judicata avails if the following elements are
present, to wit:
(a) the former judgment or order must be final;
(b) the judgment or order must be on the merits;
(c) it must have been rendered by a court having
jurisdiction over the subject matter and the
parties; (d)there must be, between the first and
the second action, identity of parties, of subject
matter and cause of action.
To be clear, venue related only to the place of trial or
the geographical location in which an action or
proceeding should be brought and does not equate to
the jurisdiction of the court. It is intended to accord
convenience to the parties, as it relates to the place of
trial, and does not restrict their access to the courts. In
contrast, jurisdiction refers to the power to hear and
determine a cause, and is conferred by law and not by
the parties.
GSIS vs Heirs of Fernando Caballero
To determine whether a counterclaim is compulsory
or not, the Court has devised the following tests:
(a) Are the issues of fact and law raised by the
claim and by the counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on
defendant’s claims, absent the compulsory
counterclaim rule?
(c) Will substantially the same evidence support
or refute plaintiff’s claim as well as the
defendant’s counterclaim? and
(d) Is there any logical relation between the claim
and the counterclaim?
A positive answer to all four questions would indicate
that the counterclaim is compulsory.
The rule in permissive counterclaims is that for the
trial court to acquire jurisdiction, the counterclaimant
is bound to pay the prescribed docket fees. This,
petitioner did not do, because it asserted that its claim
for the collection of rental payments was a compulsory
counterclaim. Since petitioner failed to pay the docket
fees, the RTC did not acquire jurisdiction over its
permissive counterclaim. The judgment rendered by
the RTC, insofar as it ordered Fernando to pay
petitioner the rentals which he collected from CMTC, is
considered null and void. Any decision rendered
without jurisdiction is a total nullity and may be struck
down at any time, even on appeal before this Court.
In In Re: Petition for Recognition of the Exemption of
the Government Service Insurance System from
Payment of Legal Fees, 612 SCRA 193 (2010), the
Court ruled that the provision in the Charter of the
GSIS, i.e., Section 39 of Republic Act No. 8291, which
exempts it from “all taxes, assessments, fees, charges
or duties of all kinds,” cannot operate to exempt it
from the payment of legal fees. This was because,
unlike the 1935 and 1973 Constitutions, which
empowered Congress to repeal, alter or supplement
the rules of the Supreme Court concerning pleading,
practice and procedure, the 1987 Constitution
removed this power from Congress. Hence, the
Supreme Court now has the sole authority to
promulgate rules concerning pleading, practice and
procedure in all courts.
Petitioner also invoked our ruling in Sun Insurance
Office, Ltd. v. Judge Asuncion, 170 SCRA 274 (1989),
where the Court held that: x x x x 3. Where the trial
court acquires jurisdiction over a claim by the filing of
the appropriate pleading and payment of the
prescribed filing fee but, subsequently, the judgment
awards a claim not specified in the pleading, or if
specified the same has been left for determination by
the court, the additional filing fee therefor shall
constitute a lien on the judgment. It shall be the
responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and
collect the additional fee. In Ayala Corporation v.
Madayag, 181 SCRA 687 (1990), the Court, in
interpreting the third rule laid down in Sun Insurance
Office, Ltd. v. Judge Asuncion, 170 SCRA 274 (1989),
regarding awards of claims not specified in the
pleading, held that the same refers only to damages
arising after the filing of the complaint or similar
pleading as to which the additional filing fee therefor
shall constitute a lien on the judgment. The amount of
any claim for damages, therefore, arising on or before
the filing of the complaint or any pleading should be
specified. While it is true that the determination of
certain damages as exemplary or corrective damages
is left to the sound discretion of the court, it is the duty
of the parties claiming such damages to specify the
amount sought on the basis of which the court may
make a proper determination, and for the proper
assessment of the appropriate docket fees. The
exception contemplated as to claims not specified or to
claims although specified are left for determination of
the court is limited only to any damages that may arise
after the filing of the complaint or similar pleading for
then it will not be possible for the claimant to specify
nor speculate as to the amount thereof.
Calibre Traders, Inc. vs Bayer Philippines, Inc.
“A compulsory counterclaim is any claim for money or
other relief, which a defending party may have against
an opposing party, which at the time of suit arises out
of, or is necessarily connected with, the same
transaction or occurrence that is the subject matter of
plaintiff’s complaint. It is compulsory in the sense that
it is within the jurisdiction of the court, does not
require for its adjudication the presence of third
parties over whom the court cannot acquire
jurisdiction, and will be barred x x x if not set up in the
answer to the complaint in the same case. Any other
claim is permissive.” The Court has already laid down
the following tests to determine whether a
counterclaim is compulsory or not, to wit:
(1) Are the issues of fact or law raised by the claim
and the counterclaim largely the same?
(2) Would res judicata bar a subsequent suit on
defendant’s claims, absent the compulsory
counterclaim rule?
(3) Will substantially the same evidence support
or refute plaintiff’s claim as well as the
defendant’s counterclaim? and
(4) Is there any logical relation between the claim
and the counterclaim, such that the conduct of
separate trials of the respective claims of the
parties would entail a substantial duplication of
effort and time by the parties and the court?
It is a settled doctrine that although the payment of
the prescribed docket fees is a jurisdictional
requirement, its non-payment x x x should not result
in the automatic dismissal of the case provided the
docket fees are paid within the applicable prescriptive
period. “The prescriptive period therein mentioned
refers to the period within which a specific action
must be filed. It means that in every case, the docket
fee must be paid before the lapse of the prescriptive
period. Chapter 3, Title V, Book III of the Civil Code is
the principal law governing prescription of actions.
Financial Building Corporation vs Forbes Park
Association
The instant case is barred due to Forbes Park’s failure
to set it up as a compulsory counterclaim in Civil Case
No. 16540, the prior injunction suit initiated by
Financial Building against Forbes Park. A compulsory
counterclaim is one which arises out of or is
necessarily connected with the transaction or
occurrence that is the subject matter of the opposing
party’s claim. If it is within the jurisdiction of the court
and it does not require for its adjudication the
presence of third parties over whom the court cannot
acquire jurisdiction, such compulsory counterclaim is
barred if it is not set up in the action filed by the
opposing party.
Thus, a compulsory counterclaim cannot be the
subject of a separate action but it should instead be
asserted in the same suit involving the same
transaction or occurrence, which gave rise to it. To
determine whether a counterclaim is compulsory or
not, we have devised the following tests: (1) Are the
issues of fact or law raised by the claim and the
counterclaim largely the same? (2) Would res judicata
bar a subsequent suit on defendant’s claim absent the
compulsory counterclaim rule? (3) Will substantially
the same evidence support or refute plaintiff’s claim as
well as the defendant’s counterclaim? and (4) Is there
any logical relation between the claim and the
counterclaim? Affirmative answers to the above
queries indicate the existence of a compulsory
counterclaim.
A compulsory counterclaim is auxiliary to the
proceeding in the original suit and derives its
jurisdictional support therefrom. A counterclaim
presupposes the existence of a claim against the party
filing the counterclaim. Hence, where there is no claim
against the counterclaimant, the counterclaim is
improper and it must dismissed, more so where the
complaint is dismissed at the instance of the
counterclaimant. In other words, if the dismissal of the
main action results in the dismissal of the
counterclaim already filed, it stands to reason that the
filing of a motion to dismiss the complaint is an
implied waiver of the compulsory counterclaim
because the grant of the motion ultimately results in
the dismissal of the counterclaim.
Thus, the filing of a motion to dismiss and the setting
up of a compulsory counterclaim are incompatible
remedies. In the event that a defending party has a
ground for dismissal and a compulsory counterclaim
at the same time, he must choose only one remedy. If
he decides to file a motion to dismiss, he will lose his
compulsory counterclaim. But if he opts to set up his
compulsory counterclaim, he may still plead his
ground for dismissal as an affirmative defense in his
answer. The latter option is obviously more favorable
to the defendant although such fact was lost on Forbes
Park.
Chan vs Court of Appeals and Cu
A counterclaim is any claim for money or other relief
which a defending party may have against an opposing
party. It need not diminish or defeat the recovery
sought by the opposing party, but may claim relief
exceeding in amount or different in kind from that
sought by the opposing party’s claim. Counterclaims
are designed to enable the disposition of a whole
controversy of interested parties’ conflicting claims, at
one time and in one action, provided all the parties can
be brought before the court and the matter decided
without prejudicing the rights of any party. A
counterclaim is in itself a distinct and independent
cause of action, so that when properly stated as such,
the defendant becomes, in respect to the matter stated
by him, an actor, and there are two simultaneous
actions pending between the same parties, wherein
each is at the same time both a plaintiff and a
defendant . . . . A counterclaim stands on the same
footing and is to be tested by the same rules, as if it
were an independent action. In short, the defendant is
a plaintiff with respect to his counterclaim.
Chan’s counterclaim for ejectment is a compulsory
counterclaim because it is necessarily connected with
the transaction or occurrence which is the subject
matter of Cu’s complaint, viz., the lease contract
between them. Consequently, the Court of Appeals
erred when it held that Chan’s cause of action for
ejectment could not be set up in a counterclaim. We
agree with Chan that Ching Pue vs. Gonzales is
inapplicable because in Ching Pue the consignation
cases were filed with the Court of First Instance which
did not have jurisdiction over ejectment cases;
necessarily, no counterclaim for ejectment could have
been interposed therein. The ratio decidendi of the
said case is that consignation is not proper where the
refusal of the creditor to accept tender of payment is
with just cause. One will search therein in vain even
for an obiter dictum which suggests that an action for
ejection cannot be set up in a counterclaim. In the
instant case, the ejectment was set up as a
counterclaim in the MTC which has jurisdiction over it
and Cu joined that issue and the incidents thereto by
her answer to the counterclaim and the counterclaim
to the counterclaim.
We hold that the MTC had the authority to extend the
period of the lease. The parties started with a written
contract of lease with a term for one year from 1
February 1983 to 1 February 1984. This was renewed
every year for two successive years, or up to 1
February 1986. No written contract was made
thereafter, but Cu was allowed to occupy the premises
at a monthly rental which was increased every year. In
November 1989, Chan informed Cu of the termination
of the lease and gave her until 1 January 1990 to
vacate the premises. Articles 1670 and 1687 of the
Civil Code thus came into play. Article 1687 grants the
court the authority to fix the term of the lease
depending on how the rentals are paid and on the
length of the lessee’s occupancy of the leased
premises.
Tan vs Kaakbay Finance Corporation, Lazaro and
Noynay
In Intestate Estate of Dalisay v. Hon. Marasigan, we
held that a counterclaim is compulsory where: (1) it
arises out of, or is necessarily connected with the
transaction or occurrence that is the subject matter of
the opposing party’s claim; (2) it does not require the
presence of third parties of whom the court cannot
acquire jurisdiction; and (3) the trial court has
jurisdiction to entertain the claim.
To determine whether a counterclaim is compulsory
or not, we have devised the following tests: (1) Are the
issues of fact or law raised by the claim and the
counterclaim largely the same? (2) Would res judicata
bar a subsequent suit on defendant’s claims absent the
compulsory counterclaim rule? (3) Will substantially
the same evidence support or refute plaintiff’s claim as
well as the Defendant’s counterclaim? and (4) Is there
any logical relation between the claim and the
counterclaim?
In Quintanilla v. Court of Appeals, we said a compelling
test of compulsoriness is whether there is a logical
relationship between the claim and counterclaim, that
is, where conducting separate trials of the respective
claims of the parties would entail a substantial
duplication of effort and time by the parties and the
court
Gojo vs Goyala and Almoguera
It is now settled that a plaintiff who fails or chooses
not to answer a compulsory counterclaim may not be
declared in default, principally because the issues
raised in the counterclaim are deemed automatically
joined by the allegations of the complaint.
It is true that under Sec. 3 of Rule 17, a complaint may
be dismissed for failure to prosecute if the plaintiff
fails to comply with an order of the court, but it is
obvious that the said provision cannot apply when the
order supposedly ignored is a void one.
Banco de Ora Universal Bank vs Court of Appeals
It bears noting that when petitioner filed its Answer
with Counterclaim to the Locsins’ complaint on
September 11, 1998, the Real Estate Mortgages
covering the 1st TLA and the CLA had not been extra-
judicially foreclosed, the extrajudicial foreclosure
having taken place subsequent thereto or on
September 23, 1998. It bears noting too that until after
the Locsins allegedly refused and failed to settle the
alleged deficiency amount of their outstanding
obligation, despite petitioner’s February 5, 1999 letter
of demand sent to the Locsins on February 9, 1999,
petitioner’s cause of action had not arisen. Petitioner
could not, therefore, have set its claim·subject of its
complaint in Civil Case No. MC-99-935 as, assuming
arguendo that it is, a compulsory counterclaim when it
filed on September 11,
1998 its Answer with Compulsory Counterclaim to the
Locsins’ complaint. The counterclaim must be existing
at the time of filing the answer, though not at the
commencement of the action for under Section 3 of the
former Rule 10, the counterclaim or cross-claim which
a party may aver in his answer must be one which he
may have at the time against the opposing party. That
phrase can only have reference to the time of the
answer. Certainly a premature counterclaim cannot be
set up in the answer. This construction is not only
explicit from the language of the aforecited provisions
but also serves to harmonize the aforecited sections of
Rule 10, with section 4 of the same rule which
provides that a counterclaim . . . which either matured
or was acquired by a party after serving his pleading
may, with the permission of the court, be presented as
a counterclaim . . . by supplemental pleading before
judgment. Thus a party who fails to interpose a
counterclaim although arising out of or is necessarily
connected with the transaction or occurrence of the
plaintiff’s suit but which did not exist or mature at the
time said party files his answer is not thereby barred
from interposing such claim in a future litigation...
While petitioner could have, after the Locsins filed on
March 26, 1999 a Supplemental Complaint in Civil
Case No. Q-98-35337, set up, in its Supplemental
Answer, its claim subject of Civil Case No. MC-99-935,
again assuming arguendo that it is a Compulsory
Counterclaim, the setting up of such „after-acquired
counterclaim, is merely permissive, not compulsory.
Del Monte Fresh Product N.A. vs Dow Chemical
Company
When a pleader fails to set up a counterclaim or a
cross-claim through oversight, inadvertence, or
excusable neglect, or when justice requires, he may, by
leave of court, set up the counterclaim or cross-claim
by amendment before judgment. Based on the above-
quoted provision, there are two requisites for a court
to allow an omitted counterclaim or cross-claim by
amendment: (1) there was oversight, inadvertence, or
excusable neglect, or when justice requires; and (2)
the amendment is made before judgment.
As correctly observed by the CA, the plaintiffs are
seeking to hold all defendant companies solidarily
liable. Thus, even with the compromise agreements
entered into by the Dow/Occidental, Del Monte and
Chiquita defendants with majority of the plaintiffs
below, the civil case was not dismissed nor the amount
of damages sought by plaintiffs therein reduced.
Therefore, the remaining defendants can still be made
liable by plaintiffs for the full amount. If that happens,
the remaining defendants can still proceed with their
cross-claims against the compromising defendants,
including the Dow/Occidental defendants, for their
respective shares.
Republic of the Philippines vs Central Surety &
Insurance Company
Where a surety company executed in favor of the
Deportation Board a P5,000-bond for the temporary
release of a Chinese citizen and respondent in a
deportation proceeding, subject to the conditions,
principal among which are that the Surety undertakes
to have him available at all times to the Deportation
Board within 24 hours from notice, that he shall be
personally present at all hearings in the case, and that
upon his failure to comply with any of the above
conditions, the bond shall be automatically confiscated
and forfeited in favor of the Government; but said
Chinese failed to appear at a Deportation Board
hearing, despite due notice, the forfeiture of said bond
by the Board would be warranted and in order.
It is not disputed in the case at bar that the trial court
acquired jurisdiction over the subject matter on June
20, 1963 when the complaint was filed with it. It is of
no moment that summons was served and that the
case was heard and decided after the effectivity of
Republic Act 3828, because the rule is firmly
entrenched in our law that jurisdiction once acquired
continues until the case is finally terminated.
It is true that the third-party complaint in the case at
bar was filed after the effectivity date of Republic Act
3828. It is likewise true that the demand therein
made-does not exceed P10,000, and, therefore, is not
within the jurisdiction of the Court of First Instance if
it were an independent action. But the third-party
complaint is an ancillary suit which depends on the
jurisdiction of the court over the main action. Since the
trial court had acquired jurisdiction over the
complaint, it necessarily follows that it likewise had
jurisdiction over the third-party complaint which is
but an incident thereof. This must be so because
jurisdiction over the main case embraces all incidental
matters arising therefrom and connected therewith
(Philippine
Products Co., et al. v. Court of Appeals, et al., L-20308,
Nov. 15, 1967, 21 SCRA 870). A contrary rule would
result in "split jurisdiction" which is not favored (Bay
View Hotel, Inc. v. Manila Hotel Workers' Union-
PTGWO, L-21803, Dec. 17, 1966), and in multiplicity of
suits, a situation obnoxious to the orderly
administration of justice (Association of Labor Unions
v. Gomez, et al, L-25999, Feb. 9, 1967, 19 SCRA 304).
The court acquired jurisdiction over the third-party
complaint, provided it had jurisdiction over the main
case for the reason that the third-party complaint is
but a continuation thereof, its purpose being to seek
"contribution, indemnity, subrogation or any other
relief, in respect to his opponent's claim."
In the case at bar, the Surety prays for the remand of
the third-party complaint to the trial –court for further
proceedings. It is the vinew of the Supreme Court that
under the environmental circumstances, there is no
need to do so.
The third-party defendants did not specifically deny
the execution of the indemnity agreement, They
merely expressed insufficient knowledge and
information to form a belief as to the veracity thereof,
without setting forth "the substance of the matters"
upon which they rely to support their denial as
required by the Rules (Sec. 10, Rule 8, Revised Rules of
Court) To obviate further litigation between the Surety
and the third-party defendants, this Court now decides
the third-party complaint on the merits, and orders
the third-party defendants to reimburse the Surety the
amount of the judgment against it, The pleadings on
record fully support this adjudication.
The Supreme Court has on several occasions resolved
actions on the merits, instead of remanding them to
the trial court for further proceedings, as (a) where
the ends of justice would not be subserved by the
remand of the case; or (b) where public interest
demands an early disposition of the case; or (c) when
the trial court had already received all the evidence
presented by both parties that the Supreme Court is
now in a position to pass upon -said evidence and
decide the case on its merits.
A third-party complaint cannot be likened to a
counterclaim which must be within the jurisdiction of
the court trying the main case, because unlike a third-
party complaint, a counterclaim need not diminish or
defeat the recovery sought by the opposing party, but
may claim itself exceeding in amount or different in
kind from that sought in the opposing party's claim
(Rule 6, Sec. 6). A third-party complaint may likewise
be likened to a cross claim under Rule 9, section 5, The
principle is at once apparent, namely, that where an
action is ancillary to a main action over which a court
has jurisdiction, no independent jurisdiction is needed
to enable the court to take cognizance of the ancillary
action.
Pascual vs Bautista
Where the cause of action alleged in the third party
complaint is not dependent upon the success or failure
of the claim subject matter of the main action, the
judgment rendered on the third party complaint may
be considered final and enforceable and may be
executed without waiting for the final determination
of the main case.
The ten year period within which to file an action to
revive a judgment, as applied to a judgment on a third
party complaint, should be counted from the date of
finality of the judgment on the third party complaint,
and not on the date of termination of the main action,
where the cause of action alleged in the third party
complaint is not dependent upon the success or failure
of the claim subject matter of the main action.
It is clear from the provisions of the Rules of Court that
for a claim to be properly raised in a pending action by
way of third party complaint it is not necessary that it
be one arising from or entirely dependent upon the
main action; it is enough that it be "in respect" of the
claim of third party plaintiff's opponent (Rule 6,
Section 12, Rules of Court), or that it be "connected
with plaintiff's claim"
Philtranco Services Enterprises Inc. vs Paras
As a general rule, indeed, moral damages are not
recoverable in an action predicated on a breach of
contract. This is because such action is not included in
Article 2219 of the Civil Code as one of the actions in
which moral damages may be recovered. By way of
exception, moral damages are recoverable in an action
predicated on a breach of contract: (a) where the P36,000.00 for the 9-month period, the other half
mishap results in the death of a passenger, as provided being treated as the necessary expense for his own
in Article 1764, in relation to Article 2206, (3), of the living in that period.
Civil Code; and (b) where the common carrier has
been guilty of fraud or bad faith, as provided in Article
2220 of the Civil Code.

The requisites for a third-party action are, firstly, that

the party to be impleaded must not yet be a party to
the action; secondly, that the claim against the third-
party defendant must belong to the original defendant;
thirdly, the claim of the original defendant against the
third-party defendant must be based upon the
plaintiff’s claim against the original defendant; and,
fourthly, the defendant is attempting to transfer to the
third-party defendant the liability asserted against
him by the original plaintiff.

Actual damages, to be recoverable, must not only be

capable of proof, but must actually be proved with a
reasonable degree of certainty. The reason is that the
court cannot simply rely on speculation, conjecture or
guesswork in determining the fact and amount of
damages, but there must be competent proof of the
actual amount of loss, credence can be given only to
claims which are duly supported by receipts.

There is no question that Article 2224 of the Civil Code

expressly authorizes the courts to award temperate
damages despite the lack of certain proof of actual
damages, to wit: Article 2224. Temperate or moderate
damages, which are more than nominal but less than
compensatory damages, may be recovered when the
court finds that some pecuniary loss has been suffered
but its amount cannot, from the nature of the case, be
proved with certainty.
According to Article 2205, (1), of the Civil Code,
damages may be recovered for loss or impairment of
earning capacity in cases of temporary or permanent
personal injury. Indeed, indemnification for damages
comprehends not only the loss suffered (actual
damages or damnum emergens) but also the
claimant’s lost profits (compensatory damages or
lucrum cessans). Even so, the formula that has gained
acceptance over time has limited recovery to net
earning capacity; hence, the entire amount of
P72,000.00 is not allowable. The premise is obviously
that net earning capacity is the person’s capacity to
acquire money, less the necessary expense for his own
living. To simplify the determination, therefore, the
net earning capacity of Paras during the 9-month
period of his confinement, surgeries and consequential
therapy is pegged at only half of his unearned monthly
gross income of P8,000.00 as a trader, or a total of
RULE 7
Ateneo de Naga University vs. Manalo
As regards the verification requirement, this Court
explained in Torres vs. Specialized Packaging
Development Corporation that such requirement is
deemed substantially complied with when, as in that
case, two out of 25 real parties-in-interest, who
undoubtedly have sufficient knowledge and belief to
swear to the truth of the allegations in the petition,
signed the verification attached to it. Such verification
is deemed sufficient assurance that the matters alleged
in the petition have been made in good faith or are
true and correct, not merely speculative.
Applying the foregoing to the instant petition, this
Court finds that, at the minimum, the lone signature of
Fr. Tabora is sufficient to fulfill the verification
requirement. Undoubtedly, Fr. Tabora, whose acts as
president of petitioner ADNU are in issue, is a real
party-in-interest. As ADNUÊs president and himself a
party to the instant case, Fr. Tabora has sufficient
knowledge to swear to the truth of the allegations in
their petition for certiorari filed with the Court of
Appeals. His signature, therefore, is sufficient
assurance that the allegations in their petition have
been made in good faith or are true and correct, not
merely speculative.
Respondent assails the authority of Fr. Tabora to sign
on behalf of petitioners in view of the belated filing of
the Special Power of Attorney dated 18 November
2002 and the two secretary’s certificates, which
respondent asserts as suspect. In effect, respondent
would have this Court discredit these documents to
render baseless the supposed authority of Fr. Tabora
to sign on behalf of petitioners. This Court, however, is
not persuaded. Any suspicion on the authenticity and
due execution of the special power of attorney and the
two secretary’s certificates, which are notarized
documents and as such, public documents· cannot
stand against the presumption of regularity in their
favor absent evidence that is clear, convincing, and
more than merely preponderant. The rule of long
standing is that a public document executed and
attested through the intervention of a notary public is
evidence of the facts in a clear, unequivocal manner
therein expressed. In the instant case, except for
respondent’s bare allegations to cast doubt on these
documents, there was no evidence adduced in support
thereof. Absent such evidence, the presumption must
stand and the special power of attorney and
secretary’s certificates must be upheld. Considering
the foregoing, this Court finds Fr. Tabora to be duly
authorized to sign on behalf of petitioners the
verification attached to their petition for certiorari,
and, for the same reason, the certification against
forum shopping.
It appearing that Fr. Tabora was, in fact, a duly
authorized signatory, it can be said that there was at
least substantial compliance with, and that there was
no attempt to ignore, the prescribed procedural
requirements. The delay in the presentation of the
documents showing the authority of Fr. Tabora to sign
on behalf of petitioners cannot be allowed to defeat
the petition for certiorari filed with the Court of
Appeals. By the time the Court of Appeals resolved to
uphold its dismissal of the petition as to them, they
had already submitted proof of their conferment upon
Fr. Tabora of the authority to sign the verification and
certification against forum shopping. Such dismissal
exalts technicality over substantial right, which this
Court cannot countenance. Time and again, this Court
has held that rules of procedure are established to
secure substantial justice. Being instruments for the
speedy and efficient administration of justice, they
must be used to achieve such end, not to derail it. In
particular, when a strict and literal application of the
rules on non-forum shopping and verification will
result in a patent denial of substantial justice, these
may be liberally construed.
As regards the certification against forum shopping,
this Court has relaxed, under justifiable circumstances,
the rule requiring the submission of such certification
considering that although it is obligatory, it is not
jurisdictional. This Court has also applied the rule of
substantial compliance under justifiable
circumstances with respect to the contents of the
certification. If this Court has, in previous rulings,
allowed the belated filing of the certification against
forum shopping for compelling reasons, with more
reason should it sanction the timely submission of
such certification albeit the proof of authority of the
signatory was put forward only after.
The ends of justice are better served when cases are
determined on the merits· after all parties are given
full opportunity to ventilate their causes and defenses
rather than on technicality or some procedural
imperfections. Accordingly, the petition for certiorari
before the Court of Appeals should be reinstated for
proper determination of the substantive issues.
Expertravel & Tours, Inc. vs. Court of Appeals
It is settled that the requirement to file a certificate of
non-forum shopping is mandatory and that the failure
to comply with this requirement cannot be excused.
The certification is a peculiar and personal
responsibility of the party, an assurance given to the
court or other tribunal that there are no other pending
cases involving basically the same parties, issues and
causes of action. Hence, the certification must be
accomplished by the party himself because he has
actual knowledge of whether or not he has initiated
similar actions or proceedings in different courts or
tribunals. Even his counsel may be unaware of such
facts. Hence, the requisite certification executed by the
plaintiff’s counsel will not suffice. In a case where the
plaintiff is a private corporation, the certification may
be signed, for and on behalf of the said corporation, by
a specifically authorized person, including its retained
counsel, who has personal knowledge of the facts
required to be established by the documents.
The certificate of non-forum shopping may be
incorporated in the complaint or appended thereto as
an integral part of the complaint. The rule is that
compliance with the rule after the filing of the
complaint, or the dismissal of a complaint based on its
non-compliance with the rule, is impermissible.
However, in exceptional circumstances, the court may
allow subsequent compliance with the rule. If the
authority of a party’s counsel to execute a certificate of
non-forum shopping is disputed by the adverse party,
the former is required to show proof of such authority
or representation. In this case, the petitioner, as the
defendant in the RTC, assailed the authority of Atty.
Aguinaldo to execute the requisite verification and
certificate of non-forum shopping as the resident
agent and counsel of the respondent. It was, thus,
incumbent upon the respondent, as the plaintiff, to
allege and establish that Atty. Aguinaldo had such
authority to execute the requisite verification and
certification for and in its behalf. The respondent,
however, failed to do so.
While Atty. Aguinaldo is the resident agent of the
respondent in the Philippines, this does not mean that
he is authorized to execute the requisite certification
against forum shopping. Under Section 127, in relation
to Section 128 of the Corporation Code, the authority
of the resident agent of a foreign corporation with
license to do business in the Philippines is to receive,
for and in behalf of the foreign corporation, services
and other legal processes in all actions and other legal
proceedings against such corporation, thus: * * *
Under the law, Atty. Aguinaldo was not specifically
authorized to execute a certificate of non-forum
shopping as required by Section 5, Rule 7 of the Rules
of Court. This is because while a resident agent may be
aware of actions filed against his principal (a foreign
corporation doing business in the Philippines), such
resident may not be aware of actions initiated by its
principal, whether in the Philippines against a
domestic corporation or private individual, or in the
country where such corporation was organized and
registered, against a Philippine registered corporation
or a Filipino citizen.
Generally speaking, matters of judicial notice have
three material requisites: (1) the matter must be one
of common and general knowledge; (2) it must be well
and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the
limits of the jurisdiction of the court. The principal
guide in determining what facts may be assumed to be
judicially known is that of notoriety. Hence, it can be
said that judicial notice is limited to facts evidenced by
public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not
subject to a reasonable dispute in that it is either: (1)
generally known within the territorial jurisdiction of
the trial court; or (2) capable of accurate and ready
determination by resorting to sources whose accuracy
cannot reasonably be questionable.
Things of common knowledge of which courts take
judicial matters coming to the knowledge of men
generally in the course of the ordinary experiences of
life, or they may be matters which are generally
accepted by mankind as true and are capable of ready
and unquestioned demonstration. Thus, facts which
are universally known, and which may be found in
encyclopedias, dictionaries or other publications, are
judicially noticed, provided, they are of such universal
notoriety and so generally understood that they may
be regarded as forming part of the common
knowledge of every person. As the common
knowledge of man ranges far and wide, a wide variety
of particular facts have been judicially noticed as being
matters of common knowledge. But a court cannot
take judicial notice of any fact which, in part, is
dependent on the existence or non-existence of a fact
of which the court has no constructive knowledge.
In this age of modern technology, the courts may take
judicial notice that business transactions may be made
by individuals through teleconferencing.
Teleconferencing is interactive group communication
(three or more people in two or more locations)
through an electronic medium. In general terms,
teleconferencing can bring people together under one
roof even though they are separated by hundreds of
miles. This type of group communication may be used
in a number of ways, and have three basic types: (1)
video conferencing television-like communication
augmented with sound; (2) computer conferencing
printed communication through keyboard terminals,
and (3) audio-conferencing verbal communication via
the telephone with optional capacity for telewriting or
telecopying. A teleconference represents a unique
alternative to face-to-face (FTF) meetings. It was first
introduced in the 1960Ês with American Telephone
and Telegraph’s Picture phone. At that time, however,
no demand existed for the new technology. Travel
costs were reasonable and consumers were unwilling
to pay the monthly service charge for using the
picturephone, which was regarded as more of a
novelty than as an actual means for everyday
communication. In time, people found it advantageous
to hold teleconferencing in the course of business and
corporate governance, because of the money saved,
among other advantages.
In the Philippines, teleconferencing and Video-
conferencing of members of board of directors of
private corporations is a reality, in light of Republic
Act No. 8792. The Securities and Exchange
Commission issued SEC Memorandum Circular No. 15,
on November 30, 2001, providing the guidelines to be
complied with related to such conferences. Thus, the
Court agrees with the RTC that persons in the
Philippines may have a teleconference with a group of
persons in South Korea relating to business
transactions or corporate governance.
Heirs of Francisco Retuya vs. Court of Appeals
As correctly observed by the CA, while we have in a
number of cases applied the substantial compliance
rule on the filing of the certification of non-forum
shopping, specially when majority of the principal
parties had signed the same and who shared a
common interest, We agree with the CA that such
leniency finds no applicability in this case because of
petitioners’ dishonesty committed against the
appellate court. A perusal of the verification and
certification against forum shopping attached to the
petition for annulment of judgment filed in the CA
would show that there was a signature above the
typewritten name of Quintin. In fact, written below the
signature of Quintin was Community Tax Certificate
(CTC) No. 06570132, issued on January 8, 2003 in
Mandaue City. Thus, it would appear that Quintin, who
was already dead at the time the petition was filed,
had signed the verification and certification of non-
forum shopping and he was even in possession of a
CTC. Petitioners’ actuation showed their lack of
forthrightness to the CA which the latter correctly
found to be a dishonest act committed against it.
Under Section 26, Rule 138 of the Rules of Court and
established jurisprudence, a valid substitution of
counsel has the following requirements: (1) the filing
of a written application for substitution; (2) the
client’s written consent; (3) the consent of the
substituted lawyer if such consent can be obtained;
and, in case such written consent cannot be procured,
(4) a proof of service of notice of such motion on the
attorney to be substituted in the manner required by
the Rules. In this case, petitioners failed to comply
with the above requirements.
Mid-Pasig Land Development Corporation vs
Tablante
It is thus clear that the failure to attach the Secretary’s
Certificate, attesting to General Manager Antonio
Merelos’s authority to sign the Verification and
Certification of Non-Forum Shopping, should not be
considered fatal to the filing of the petition.
Nonetheless, the requisite board resolution was
subsequently submitted to the CA, together with the
pertinent documents. Considering that petitioner
substantially complied with the rules, the dismissal of
the petition was, therefore, unwarranted. Time and
again, we have emphasized that dismissal of an appeal
on a purely technical ground is frowned upon
especially if it will result in unfairness. The rules of
procedure ought not to be applied in a very rigid,
technical sense for they have been adopted to help
secure, not override, substantial justice. For this
reason, courts must proceed with caution so as not to
deprive a party of statutory appeal; rather, they must
ensure that all litigants are granted the amplest
opportunity for the proper and just ventilation of their
causes, free from the constraint of technicalities.
In Re: Reconstitution of Transfer Certificates of
Title Nos. 303168 and 303169 and Issuance of
Owner’s Duplicate Certificates of Title in Lieu of
those Lost, Rolando Edward G. Lim
Forum shopping is the act of a party litigant against
whom an adverse judgment has been rendered in one
forum seeking and possibly getting a favorable opinion
in another forum, other than by appeal or the special
civil action of certiorari, or the institution of two or
more actions or proceedings grounded on the same
cause or supposition that one or the other court would
make a favorable disposition. Forum shopping
happens when, in the two or more pending cases,
there is identity of parties, identity of rights or causes
of action, and identity of reliefs sought. Where the
elements of litis pendentia are present, and where a
final judgment in one case will amount to res judicata
in the other, there is forum shopping. For litis
pendentia to be a ground for the dismissal of an action,
there must be: (a) identity of the parties or at least
such as to represent the same interest in both actions;
(b) identity of rights asserted and relief prayed for, the
relief being founded on the same acts; and (c) the
identity in the two cases should be such that the
judgment which may be rendered in one would,
regardless of which party is successful, amount to res
judicata in the other.
For forum shopping to exist, both actions must involve
the same transaction, same essential facts and
circumstances and must raise identical causes of
action, subject matter and issues. Clearly, it does not
exist where different orders were questioned, two
distinct causes of action and issues were raised, and
two objectives were sought.
The Regional Trial Court (RTC) should have easily
discerned that forum shopping did not characterize
the petitioner’s resort to judicial reconstitution
despite the previous proceeding for administrative
reconstitution. Although the bases for the
administrative reconstitution were the Owner’s
duplicate copies of TCT No. 303168 and TCT No.
303169, those for judicial reconstitution would be
other documents that in the judgment of the court, are
sufficient and proper basis for reconstituting the lost
or destroyed certificate of title. The RTC should have
also noted soon enough that his resort to judicial
reconstitution was not because his earlier resort to
administrative reconstitution had been denied (in fact,
the LRA had resolved in his favor), but because the
intervening loss to fire of the only permissible basis
for administrative reconstitution of the TCTs
mandated his resort to the RTC. Indeed, he came to
court as the law directed him to do, unlike the litigant
involved in the undesirable practice of forum shopping
who would go from one court to another to secure a
favorable relief after being denied the desired relief by
another court.
The motu proprio dismissal of the petition for judicial
reconstitution by the RTC although the Government
did not file a motion to dismiss grounded on the
petitioner’s supposed failure to comply with the
contents of the required certification was yet another
glaring error of the RTC. A violation of the rule against
forum-shopping other than a willful and deliberate
forum shopping did not authorize the RTC to dismiss
the proceeding without motion and hearing.
Specifically, the submission of a false certification of
non-forum shopping did not automatically warrant the
dismissal of the proceeding, even if it might have
constituted contempt of court, for Section 5, Rule 7, of
the 1997 Rules of Civil Procedure, has been clear and
forthright.
By its outright and undiscerning application of the
sanction against forum shopping, the RTC plunged into
an unwanted limbo the petitioner’s and his co-owners’
ownership of the realties. A modicum of care and
discernment could have avoided such a prejudicial
result. We now put an end to such limbo by cautioning
all judges to exercise care and discernment in their
enforcement of the rule against forum shopping, that
they may not unduly trench on the valuable rights of
litigants.
Monasterio-Pe vs. Tong
It bears emphasis that in a petition for review on
certiorari under Rule 45 of the Rules of Court, only
questions of law may be raised by the parties and
passed upon by this Court. It is a settled rule that in
the exercise of this Court’s power of review, it does not
inquire into the sufficiency of the evidence presented,
consistent with the rule that this Court is not a trier of
facts. In the instant case, a perusal of the errors
assigned by petitioners would readily show that they
are raising factual issues the resolution of which
requires the examination of evidence. Certainly, issues
which are being raised in the present petition, such as
the questions of whether the issue of physical
possession is already included as one of the issues in a
case earlier filed by petitioner Anita and her husband,
as well as whether respondent complied with the law
and rules on barangay conciliation, are factual in
nature. Moreover, the appeal under Rule 45 of the said
Rules contemplates that the RTC rendered the
judgment, final order or resolution acting in its
original jurisdiction. In the present case, the assailed
Decision and Order of the RTC were issued in the
exercise of its appellate jurisdiction. Thus, petitioners
pursued the wrong mode of appeal when they filed the
present petition for review on certiorari with this
Court. Instead, they should have filed a petition for
review with the CA pursuant to the provisions of
Section 1, Rule 42 of the Rules of Court.
It is true that the first paragraph of Section 5, Rule 7 of
the Rules of Court, requires that thecertification
should be signed by the petitioner or principal party
himself. The rationale behind this is because only the
petitioner himself has actual knowledge of whether or
not he has initiated similar actions or proceedings in
different courts or agencies.
However, the rationale does not apply where, as in this
case, it is the attorney-in-fact who instituted the
action. Such circumstance constitutes reasonable
cause to allow the attorney-in-fact to personally sign
the Certificate of Non-Forum Shopping. Indeed, the
settled rule is that the execution of the certification
against forum shopping by the attorney-in-fact is not a
violation of the requirement that the parties must
personally sign the same. The attorney-in-fact, who
has authority to file, and who actually filed the
complaint as the representative of the plaintiff, is a
party to the ejectment suit. In fact, Section 1, Rule 70
of the Rules of Court includes the representative of the
owner in an ejectment suit as one of the parties
authorized to institute the proceedings. In the present
case, there is no dispute that Ong is respondent’s
attorney-in-fact. Hence, the Court finds that there has
been substantial compliance with the rules
proscribing forum shopping.
In any case, it can be inferred from the judgments of
this Court in the two aforementioned cases that
respondent, as owner of the subject lots, is entitled to
the possession thereof. Settled is the rule that the right
of possession is a necessary incident of ownership.
Petitioners, on the other hand, are consequently
barred from claiming that they have the right to
possess the disputed parcels of land, because their
alleged right is predicated solely on their claim of
ownership, which is already effectively debunked by
the decisions of this Court affirming the validity of the
deeds of sale transferring ownership of the subject
properties to respondent.
Respondent alleged in his complaint that petitioners
occupied the subject property by his mere tolerance.
While tolerance is lawful, such possession becomes
illegal upon demand to vacate by the owner and the
possessor by tolerance refuses to comply with such
demand. Respondent sent petitioners a demand letter
dated December 1, 1999 to vacate the subject
property, but petitioners did not comply with the
demand. A person who occupies the land of another at
the latter’s tolerance or permission, without any
contract between them, is necessarily bound by an
implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the
proper remedy against him. Under Section 1, Rule 70
of the Rules of Court, the one-year period within which
a complaint for unlawful detainer can be filed should
be counted from the date of demand, because only
upon the lapse of that period does the possession
become unlawful. Respondent filed the ejectment case
against petitioners on March 29, 2000, which was less
than a year from December 1, 1999, the date of formal
demand. Hence, it is clear that the action was filed
within the one-year period prescribed for filing an
ejectment or unlawful detainer case.
Article 1498 of the Civil Code provides that when the
sale is made through a public instrument, the
execution thereof shall be equivalent to the delivery of
the thing which is the object of the contract, if from the
deed the contrary does not appear or cannot clearly be
inferred. In the instant case, petitioners failed to
present any evidence to show that they had no
intention of delivering the subject lots to respondent
when they executed the said deed of sale. Hence,
petitioners’ execution of the deed of sale is tantamount
to a delivery of the subject lots to respondent. The fact
that petitioners remained in possession of the
disputed properties does not prove that there was no
delivery, because as found by the lower courts, such
possession is only by respondent’s mere tolerance.
Vda. de Formoso vs. Philippine National Bank
Certiorari is an extraordinary, prerogative remedy and
is never issued as a matter of right. Accordingly, the
party who seeks to avail of it must strictly observe the
rules laid down by law.
The acceptance of a petition for certiorari as well as
the grant of due course thereto is, in general,
addressed to the sound discretion of the court.
Although the Court has absolute discretion to reject
and dismiss a petition for certiorari it does so only (1)
when the petition fails to demonstrate grave abuse of
discretion by any court, agency, or branch of the
government; or (2) when there are procedural errors,
like violations of the Rules of Court or Supreme Court
Circulars.
Primarily, Section 1, Rule 45 of the Rules of Court
categorically states that the petition filed shall raise
only questions of law, which must be distinctly set
forth. A question of law arises when there is doubt as
to what the law is on a certain state of facts, while
there is a question of fact when the doubt arises as to
the truth or falsity of the alleged facts. For a question
to be one of law, the same must not involve an
examination of the probative value of the evidence
presented by the litigants or any of them. The
resolution of the issue must rest solely on what the
law provides on the given set of circumstances. Once it
is clear that the issue invites a review of the evidence
presented, the question posed is one of fact.
METROPOLITAN BANK & TRUST COMPANY vs
HON. SALVADOR ABAD SANTOS
Section 1, Rule 65 of the Rules, clearly provides that a
petition for certiorari is available only when there is
no appeal, or any plain, speedy and adequate remedy
in the ordinary course of law. A petition for certiorari
cannot co-exist with an appeal or any other adequate
remedy. The existence and the availability of the right
to appeal are antithetical to the availment of the
special civil action for certiorari. As we have long held,
these two remedies are mutually exclusive.
Metrobank’s petition for certiorari before the CA
assails the dismissal order of the RTC and, under
normal circumstances, Metrobank should have filed an
appeal. However, where the exigencies of the case are
such that the ordinary methods of appeal may not
prove adequate either in point of promptness or
completeness, so that a partial if not a total failure of
justice could result a writ of certiorari may still be
issued. Other exceptions, Justice Florenz D. Regalado
listed are as follows: (1) where the appeal does not
constitute a speedy and adequate remedy (Salvadades
vs. Pajarillo, et al., 78 Phil. 77), as where 33 appeals
were involved from orders issued in a single
proceeding which will inevitably result in a
proliferation of more appeals (PCIB vs. Escolin, et al.,
L-27860 and 27896, Mar. 29, 1974); (2) where the
orders were also issued either in excess of or without
jurisdiction (Aguilar vs. Tan, L-23600, Jun 30, 1970, Cf.
Bautista, et al. vs. Sarmiento, et al., L-45137, Sept.
231985); (3) for certain special consideration, as
public welfare or public policy (See Jose vs. Zulueta, et
al., -16598, May 31, 1961 and the cases cited therein);
(4) where in criminal actions, the court rejects
rebuttal evidence for the prosecution as, in case of
acquittal, there could be no remedy (People vs. Abalos,
L029039, Nov. 28, 1968); (5) where the order is a
patent nullity (Marcelo vs. De Guzman, et al., L-29077,
June 29, 1982); and (6) where the decision in the
certiorari case will avoid future litigations.
Grave abuse of discretion may arise when a lower
court or tribunal violates or contravenes the
Constitution, the law or existing jurisprudence. As will
be discussed in greater detail below, the RTC decision
dismissing Metrobank’s petition was patently
erroneous and clearly contravened existing
jurisprudence. For this reason, we cannot fault
Metrobank for resorting to the filing of a petition for
certiorari with the CA to remedy a patent legal error in
the hope of obtaining a speedy and adequate remedy.
A writ of possession is defined as a execution
employed to enforce a judgment to recover the
possession of land. It commands the sheriff to enter
the land and give its possession to the person entitled
under the judgment. There are three instances when a
writ of possession may be issued: (a) in land
registration proceedings under Section 17 of Act No.
496; (b) in judicial foreclosure, provided the debtor is
in possession of the mortgaged realty and no third
person, not a party to the foreclosure suit, had
intervened; and (c) in extrajudicial foreclosure of a
real estate mortgage under Section 7 of Act No. 3135,
as amended by Act No. 4118. The present case falls
under the third instance. The procedure for obtaining
a writ of possession in extrajudicial foreclosure cases
is found in Section 7 of Act No. 3135, as amended by
Act No. 4118.
Based on this provision, a writ of possession may issue
either (1) within the one year redemption period,
upon the filing of a bond, or (2) after the lapse of the
redemption period, without need of a bond. In order to
obtain a writ of possession, the purchaser in a
foreclosure sale must file a petition, in the form of an
ex parte motion, in the registration or cadastral
proceedings of the registered property. The reason
why this pleading, although denominated as a petition,
is actually considered a motion is best explained in
Sps. Arquiza v. CA, 459 SCRA 753 (2005) where we
said: The certification against forum shopping is
required only in a complaint or other initiatory
pleading. The ex parte petition for the issuance of a
writ of possession filed by the respondent is not an
initiatory pleading. Although the private respondent
denominated its pleading as a petition, it is,
nonetheless, a motion. What distinguishes a motion
from a petition or other pleading is not its form or the
title given by the party executing it, but rather its
purpose. The office of a motion is not to initiate new
litigation, but to bring a material but incidental matter
arising in the progress of the case in which the motion
is filed. A motion is not an independent right or
remedy, but is confined to incidental matters in the
progress of a cause. It relates to some question that is
collateral to the main object of the action and is
connected with and dependent upon the principal
remedy. An application for a writ of possession is a
mere incident in the registration proceeding. Hence,
although it was denominated as a petition it was in
substance merely a motion. Thus, the CA correctly
made the following observations: Such petition for the
issuance of a writ of possession is filed in the form of
an ex parte motion, inter alia, in the registration or
cadastral proceedings if the property is registered.
Apropos, as an incident or consequence of the original
registration or cadastral proceedings, the motion or
petition for the issuance of a writ of possession, not
being an initiatory pleading, dispels the requirement
of a forum-shopping certification. Axiomatic is that the
petitioner need not file a certification of non-forum
shopping since his claims are not initiatory in
character
COSCO PHILIPPINES SHIPPING, INC. vs.
KEMPER INSURANCE COMPANY
We have consistently held that the certification against
forum shopping must be signed by the principal
parties. If, for any reason, the principal party cannot
sign the petition, the one signing on his behalf must
have been duly authorized. With respect to a
corporation, the certification against forum shopping
may be signed for and on its behalf, by a specifically
authorized lawyer who has personal knowledge of the
facts required to be disclosed in such document.
A corporation has no power, except those expressly
conferred on it by the Corporation Code and those that
are implied or incidental to its existence. In turn, a
corporation exercises said powers through its board of
directors and/or its duly authorized officers and
agents.
Thus, it has been observed that the power of a
corporation to sue and be sued in any court is lodged
with the board of directors that exercises its corporate
powers. In turn, physical acts of the corporation, like
the signing of documents, can be performed only by
natural persons duly authorized for the purpose by
corporate by-laws or by a specific act of the board of
directors.
In Philippine Airlines, Inc. v. Flight Attendants and
Stewards Association of the Philippines (FASAP), 479
SCRA 605 (2006), we ruled that only individuals
vested with authority by a valid board resolution may
sign the certificate of non-forum shopping on behalf of
a corporation. We also required proof of such
authority to be presented. The petition is subject to
dismissal if a certification was submitted
unaccompanied by proof of the Signatory’s authority.
In the present case, since respondent is a corporation,
the certification must be executed by an officer or
member of the board of directors or by one who is
duly authorized by a resolution of the board of
directors; otherwise, the complaint will have to be
dismissed. The lack of certification against forum
shopping is generally not curable by mere amendment
of the complaint, but shall be a cause for the dismissal
of the case without prejudice. The same rule applies to
certifications against forum shopping signed by a
person on behalf of a corporation which are
unaccompanied by proof that said signatory is
authorized to file the complaint on behalf of the
corporation.
In Tamondong v. Court of Appeals, 444 SCRA 509
(2004), we held that if a complaint is filed for and in
behalf of the plaintiff who is not authorized to do so,
the complaint is not deemed filed. An unauthorized
complaint does not produce any legal effect. Hence, the
court should dismiss the complaint on the ground that
it has no jurisdiction over the complaint and the
plaintiff. Accordingly, since Atty. Lat was not duly
authorized by respondent to file the complaint and
sign the verification and certification against forum
shopping, the complaint is considered not filed and
ineffectual, and, as a necessary consequence, is
dismissable due to lack of jurisdiction.
Jurisdiction is the power with which courts are
invested for administering justice; that is, for hearing
and deciding cases. In order for the court to have
authority to dispose of the case on the merits, it must
acquire jurisdiction over the subject matter and the
parties. Courts acquire jurisdiction over the plaintiffs
upon the filing of the complaint, and to be bound by a
decision, a party should first be subjected to the
court’s jurisdiction. Clearly, since no valid complaint
was ever filed with the RTC, Branch 8, Manila, the
same did not acquire jurisdiction over the person of
respondent.
RULE 8
Ledda vs Bank of the Philippines
Consistent with Alcaraz, Ledda must also pay interest
on the total unpaid credit card amount at the rate of
12% per annum since her credit card obligation
consists of a loan or forbearance of money. In Eastern
Shipping Lines, Inc. v. Court of Appeals, 234 SCRA 78
(1994), the Court explained: When an obligation is
breached, and it consists in the payment of a sum of
money, i.e., a loan or forbearance of money, the
interest due should be that which may have been
stipulated in writing. Furthermore, the interest due
shall itself earn legal interest from the time it is
judicially demanded. In the absence of stipulation, the
rate of interest shall be 12% per annum to be
computed from default, i.e., from judicial or
extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.
Settled is the rule that the trial court must state the
factual, legal or equitable justification for the award of
attorney’s fees. The matter of attorney’s fees cannot be
stated only in the dispositive portion of the decision.
The body of the Court’s decision must state the
reasons for the award of attorney’s fees. In Frias v. San
Diego-Sison, 520 SCRA 244 (2007), the Court held:
Article 2208 of the New Civil Code enumerates the
instances where such may be awarded and, in all
cases, it must be reasonable, just and equitable if the
same were to be granted. Attorney’s fees as part of
damages are not meant to enrich the winning party at
the expense of the losing litigant. They are not
awarded every time a party prevails in a suit because
of the policy that no premium should be placed on the
right to litigate. The award of attorney’s fees is the
exception rather than the general rule. As such, it is
necessary for the trial court to make findings of facts
and law that would bring the case within the exception
and justify the grant or such award.
The matter of attorney’s fees cannot be mentioned
only in the dispositive portion of the decision. They
must be clearly explained and justified by the trial
court in the body of its decision. On appeal, the CA is
precluded from supplementing the bases for awarding
attorney’s fees when the trial court failed to discuss in
its Decision the reasons for awarding the same.
Consequently, the award or attorney’s fees should be
deleted.
Section 7, Rule 8 of the 1997 Rules of Civil Procedure
provides: Action or defense based on document.
Whenever an action or defense is based upon a
written instrument or document, the substance of
such instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said copy may
with like effect be set forth in the pleading.
Clearly, the above provision applies when the action is
based on a written instrument or document.
In this case, the complaint is an action for collection of
sum of money arising from Ledda’s default in her
credit card obligation with BPI. BPIÊs cause of action
is primarily based on Ledda’s (1) acceptance of the BPI
credit card, (2) usage of the BPI credit card to
purchase goods, avail services and secure cash
advances, and (3) non-payment of the amount due for
such credit card transactions, despite demands. In
other words, BPIÊs cause of action is not based only
on the document containing the Terms and Conditions
accompanying the issuance of the BPI credit card in
favor of Ledda. Therefore, the document containing
the Terms and Conditions governing the use of the BPI
credit card is not an actionable document
contemplated in Section 7, Rule 8 of the 1997 Rules of
Civil Procedure. As such, it is not required by the Rules
to be set forth in and attached to the complaint.
At any rate, BPI has sufficiently established a cause of
action against Ledda, who admits having received the
BPI credit card, subsequently used the credit card, and
failed to pay her obligation arising from the use of
such credit card.
Hibberd vs Rohde and McMillian
CONTRACTS; ADMISSION OF GENUINENESS AND DUE
EXECUTION.· By the admission of the genuineness and
due execution of an instrument, as the term is used in
section 103 of the Code of Civil Procedure, is meant
that the party whose signature it bears admits that he
signed it or that it was signed by another for him with
his authority; that at the time it was signed it was in
words and figures exactly as set out in the pleading of
the party relying upon it; that the document was
delivered; and that any formal requisites required by
law, such as a seal, an acknowledgment, or revenue
stamp, which it Iacks are waived by him.
ID. ; ID ; DEFENSES CUT OFF. Such defenses as that the
signature is a forgery; or that it was unauthorized, as
In the case of an agent signing for his principal, or one
signing: in behalf of a partnership, or of a corporation;
or that, in the case of the latter, that the corporation
was not authorized under its charter to sign the
instrument; or that the party charged signed the
instrument in some other capacity than that alleged in
the pleading setting it out; or that it was never
delivered; are cut off by the admission of its
genuineness and due execution.
ID. ; ID.; DEFENSES ALLOWED. Any defense of new
matter, such as payment where nonpayment is alleged,
the statute of limitations, illegality of consideration,
etc., may be under a proper plea to that effect,
notwithstanding the failure of the party charged to
enter a verified denial of the genuineness and due
execution of the document declared upon.
ID.; CONSIDERATION; INTERFERENCE WITH
CRIMINAL PROSECUTIONS.· Any contract whereby it
is sought to actively obstruct or hinder the
prosecution of a public offense, as by the promise of
the injured person not to prosecute, or by the
suppression of evidence, or by improper solicitation of
officials of the State whose authority extends to the
due investigation and prosecution of the culprit, is
against public policy and will not be enforced by the
courts, notwithstanding that there has been, in fact, no
crime committed, or that the greater part of the
consideration of the contract may consist of
reparation to the injured party.
ID,; ID.; COMPROMISE OF CIVIL LIABILITY RESULTING
FROM PUBLIC OFFENSE. Contracts relating exclusively
to the civil liability of one charged with a public
offense are legal and enforcible, The mere expectation
of the accused person that settlement of his civil
liability will stop the criminal prosecution, or the
promise of the injured person not to actively assist in
such criminal case is not sufficient to taint the contract
with illegality. Whether a contract of this character
tends to obstruct the due administration of the
criminal laws is a question of fact which must be
determined from all the facts and circumstances of the
particular case.
ID.; ID.; ID.; FACTS OF THIS CASE. In accordance with
an executory contract entered into after the
preliminary investigation of a complaint of estafa, but
before decision had been rendered by the justice of the
peace, the complaining party moved for the dismissal
of the criminal complaint, the consideration being a
promissory note signed by the accused and one other
for the amount of the property taken. There was no
evidence' that the criminal prosecution had been
instituted for the purpose of extorting a settlement
from the accused nor that the injured party undertook
to suppress evidence, not to testify, or to do any other
thing that would tend to obstruct further investigation
of the complaint by the State's prosecuting officers. In
the absence of any other evidence, and in view of the
publicity which had been given to the accusation, Held:
That the contract did not tend to obstruct the
administration of the criminal laws, and that it was
valid and enforcible.
BASILIA BOUGH and GUSTAVUS BOUGH vs
MATILDE CANTIVEROS and PRESBITERA
HANOPOL
PLEADING AND PRACTICE; CIVIL PROCEDURE;
ANSWERS; GENUINENESS AND DUE EXECUTION OF
WRITTEN INSTRUMENTS; SECTION 103 OF THE
CODE OF ClVIL PROCEDURE CONSTRUED. In
accordance with section 103 of the Code of Civil
Procedure, the genuineness and due execution of a
written instrument, properly pleaded, is deemed
admitted unless the plaintiff or defendant, as the case
may be, shall specifically deny the same under oath.
The phrase "genuineness and due execution of the
instrument" means nothing more than that the
instrument is not spurious, counterfeit, or of different
import on its face from the one executed.
The failure of the party to file an affidavit denying the
genuineness and due execution of the document does
not estop him from controverting it by evidence of
fraud, mistake, compromise, payment, statute of
limitations, estoppel, and want of consideration.
DEFENSE OF ILLEGALITY OR FRAUD.·As section 285
of the Code of Civil Procedure permits a writing to be
impeached because of its illegality or fraud, such a
defense would not be barred by the provisions of
section 103.
Held: That although the defendants did not deny the
genuineness and due execution of the contract of sale
of December 9, 1913, under oath, yet the defendants
could properly set up the defenses of fraud and want
of consideration.
PUBLIC INSTRUMENTS; VARYING TERMS; PAROLE
EVIDENCE TO ESTABLISH ILLEGALITY OR FRAUD;
SECTION 285 OF THE CODE OF ClVIL PROCEDURE
CONSTRUED. Article 1218 of the Civil
Code which provides that public instruments are
evidence of the fact which gave rise to their execution,
should be read in conjunction with section 285 of the
Code of Civil Procedure.
Evidence to establish illegality or fraud, is expressly
permitted under section 285 of the Code of Civil
Procedure, and may be proved by circumstantial
evidence, aided by legitimate inferences from the
direct facts.
CONTRACTS; ILLEGAL AS AGAINST PUBLIC POLICY.
Contracting parties may not establish pacts, clauses,
and conditions, which conflict with the laws, morals,
or public order.
ID.; ID.; "PUBLIC ORDER" CONSTRUED. "Public order"
in the civil law signifies the public weal – public policy.
ID.; ID.; ACTIONS TO ENFORCE. A party to an illegal
contract cannot come into a court of law and ask to
have his illegal objects carried out. The law will not aid
either party to an illegal agreement; it leaves the
parties where it finds them.
ID.; ID.; ID. Where the parties to an illegal contract are
not equally guilty, and where public policy is
considered as advanced by allowing the more
excusable of the two to sue for relief against the
transaction, relief is given to him.
Cases of this character are, where the conveyance was
wrongfully induced by the grantee through imposition
01." overreaching, or by false representations,
especially by one in a confidential relation.
ID.; ID.; ID. Held: That since the grantor, reposing faith
in the integrity of the grantee and relying on a
suggested occurrence which did not in fact take place,
was made the dupe of the grantee, the grantor should
be placed in the position in which she was before the
transactions were' entered into.
Acabal vs. Acabal
Procedurally, petitioners contend that the Court of
Appeals erred when it failed to apply Section 8, Rule 8
of the Rules of Court, respondent Villaner having failed
to deny under oath the genuineness and due execution
of the April 19, 1990 Deed of Absolute Sale.
Petitioners’ contention does not persuade. The failure
to deny the genuineness and due execution of an
actionable document does not preclude a party from
arguing against it by evidence of fraud, mistake,
compromise, payment, statute of limitations, estoppel,
and want of consideration.

It is a basic rule in evidence that the burden of proof
lies on the party who makes the allegations ei
incumbit probatio, qui dicit, non qui negat; cum per
rerum naturam factum negantis probatio nulla sit. If
he claims a right granted by law, he must prove it by
competent evidence, relying on the strength of his own
evidence and not upon the weakness of that of his
opponent. More specifically, allegations of a defect in
or lack of valid consent to a contract by reason of fraud
or undue influence are never presumed but must be
established not by mere preponderance of evidence
but by clear and convincing evidence. For the
circumstances evidencing fraud and
misrepresentation are as varied as the people who
perpetrate it in each case, assuming different shapes
and forms and may be committed in as many different
ways. In the case at bar, it was incumbent on the
plaintiff-herein respondent Villaner to prove that he
was deceived into executing the Deed of Absolute Sale.
Except for his bare allegation that the transaction was
one of lease, he failed to adduce evidence in support
thereof. His conjecture that perhaps those copies of
the deed of sale were placed by Mr. Cadalin under the
documents which I signed the contract of lease, must
fail, for facts not conjectures decide cases.
It bears noting, however, that Villaner failed to present
evidence on the fair market value of the property as of
April 19, 1990, the date of execution of the disputed
deed. Absent any evidence of the fair market value of a
land as of the time of its sale, it cannot be concluded
that the price at which it was sold was inadequate.
Inadequacy of price must be proven because mere
speculation or conjecture has no place in our judicial
system.
Even, however, on the assumption that the price of
P10,000.00 was below the fair market value of the
property in 1990, mere inadequacy of the price per se
will not rule out the transaction as one of sale. For the
price must be grossly inadequate or shocking to the
conscience such that the mind revolts at it and such
that a reasonable man would neither directly nor
indirectly be likely to consent to it.
Even assuming that the disposition of the property by
Villaner was contrary to law, he would still have no
remedy under the law as he and Leonardo were in pari
delicto, hence, he is not entitled to affirmative
relief·one who seeks equity and justice must come to
court with clean hands. In pari delicto potior est
conditio defendentis. The proposition is universal that
no action arises, in equity or at law, from an illegal
contract; no suit can be maintained for its specific
performance, or to recover the property agreed to be
sold or delivered, or the money agreed to be paid, or
damages for its violation. The rule has sometimes been
laid down as though it were equally universal, that
where the parties are in pari delicto, no affirmative
relief of any kind will be given to one against the other.
The principle of pari delicto is grounded on two
premises: first, that courts should not lend their good
offices to mediating disputes among wrongdoers; and
second, that denying judicial relief to an admitted
wrongdoer is an effective means of deterring illegality.
This doctrine of ancient vintage is not a principle of
justice but one of policy as articulated in 1775 by Lord
Mansfield in Holman v. Johnson: The objection, that a
contract is immoral or illegal as between the plaintiff
and defendant, sounds at all times very ill in the mouth
of the defendant. It is not for his sake, however, that
the objection is ever allowed; but it is founded in
general principles of policy, which the defendant has
the advantage of, contrary to the real justice, as
between him and the plaintiff, by accident, if I may so
say. The principle of public policy is this; ex dolo malo
non oritur actio. No court will lend its aid to a man
who founds his cause of action upon an immoral or an
illegal act. If, from the plaintiff’s own stating or
otherwise, the cause of action appears to arise ex turpi
causa, or the transgression of a positive law of this
country, there the court says he has no right to be
assisted. It is upon that ground the court goes; not for
the sake of the defendant, but because they will not
lend their aid to such a plaintiff. So if the plaintiff and
the defendant were to change sides, and the defendant
was to bring his action against the plaintiff, the latter
would then have the advantage of it; for where both
are equally in fault potior est conditio defendentis.
Thus, to serve as both a sanction and as a deterrent,
the law will not aid either party to an illegal agreement
and will leave them where it finds them.
The principle of pari delicto, however, is not absolute,
admitting an exception under Article 1416 of the Civil
Code. ART. 1416. When the agreement is not illegal
per se but is merely prohibited, and the prohibition by
the law is designed for the protection of the plaintiff,
he may, if public policy is thereby enhanced, recover
what he has paid or delivered. Under this article,
recovery for what has been paid or delivered pursuant
to an inexistent contract is allowed only when the
following requisites are met: (1) the contract is not
illegal per se but merely prohibited; (2) the
prohibition is for the protection of the plaintiffs; and
(3) if public policy is enhanced thereby. The exception
is unavailing in the instant case, however, since the
prohibition is clearly not for the protection of the
plaintiff-landowner but for the beneficiary farmers.
While Villaner owns five-ninths (5/9) of the disputed
property, he could not claim title to any definite
portion of the community property until its actual
partition by agreement or judicial decree. Prior to
partition, all that he has is an ideal or abstract quota or
proportionate share in the property. Villaner,
however, as a co-owner of the property has the right
to sell his undivided share thereof. The Civil Code
provides so: ART. 493. Each co-owner shall have the
full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another
person in its enjoyment, except when personal rights
are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be
limited to the portion which may be allotted to him in
the division upon the termination of the co-ownership.
Thus, every co-owner has absolute ownership of his
undivided interest in the co-owned property and is
free to alienate, assign or mortgage his interest except
as to purely personal rights. While a co-owner has the
right to freely sell and dispose of his undivided
interest, nevertheless, as a co-owner, he cannot
alienate the shares of his other co-owners nemo dat
qui non habet.
Villaner, however, sold the entire property without
obtaining the consent of the other co-owners.
Following the well-established principle that the
binding force of a contract must be recognized as far
as it is legally possible to do so quando res non valet ut
ago, valeat quantum valere potest the disposition
affects only Villaner’s share pro indiviso, and the
transferee gets only what corresponds to his grantor’s
share in the partition of the property owned in
common.
This Court is not unmindful of its ruling in Cruz v. Leis
where it held: It is conceded that, as a rule, a co-owner
such as Gertrudes could only dispose of her share in
the property owned in common. Article 493 of the
Civil Code provides: x x x Unfortunately for private
respondents, however, the property was registered in
TCT No. 43100 solely in the name of Gertrudes Isidro,
widow. Where a parcel of land, forming part of the
undistributed properties of the dissolved conjugal
partnership of gains, is sold by a widow to a purchaser
who merely relied on the face of the certificate of title
thereto, issued solely in the name of the widow, the
purchaser acquires a valid title to the land even as
against the heirs of the deceased spouse. The rationale
for this rule is that „a person dealing with registered
land is not required to go behind the register to
determine the condition of the property. He is only
charged with notice of the burdens on the property
which are noted on the face of the register or the
certificate of title. To require him to do more is to
defeat one of the primary objects of the Torrens
system. (Citation omitted) Cruz, however, is not
applicable for the simple reason that in the case at bar
the property in dispute is unregistered. The issue of
good faith or bad faith of a buyer is relevant only
where the subject of the sale is a registered land but
not where the property is an unregistered land. One
who purchases an unregistered land does so at his
peril. Nicolas’ claim of having bought the land in good
faith is thus irrelevant.
Toribio vs. Bidin
Jurisprudence has centered mainly on a discussion of
actionable documents as basis of a plaintiff’s cause of
action. Little has been said of actionable documents
being the foundation of a defense. The Rule, however,
covers both an action or a defense based on
documents.
The deed of sale executed by Dionisio Toribio in favor
of the respondents, by itself, would be insufficient to
establish a defense against the petitioners’ claims. If
the petitioners deny that they ever sold their shares in
the inherited lot to their brother Dionisio, a failure to
prove the sale would be decisive. For if it can be shown
that no conveyance of the property was executed by
the petitioners, then Dionisio Toribio had no right to
convey what did not belong to him. The respondents
could acquire only the rights that Dionisio had over
the disputed property. The genuineness and due
execution of the deed between the co-heirs is also
elemental to the defense of the respondents. The first
deeds of sale, to which the respondents were not
parties but which they seek to enforce against the
parties are also actionable documents.
This being so, the documents have to be treated in like
manner. The petitioners are themselves parties to the
deeds of sale which are sought to be enforced against
them. The complaint was filed by the petitioners. They
filed suit to recover their hereditary properties. The
new owners introduced deeds of sale as their main
defense. In other words, the petitioners brought the
issue upon themselves. They should meet it properly
according to the Rules of Court. Sections 7 and 8 of
Rule 8, therefore, apply. The proper procedure was for
the petitioners to specifically deny under oath the
genuineness and due execution of the questioned
deeds of sale and to set forth what they claim to be the
facts. However, the oversight or negligence of
petitioners’ counsel in not properly drafting a reply to
the answer and an answer to the counter claim is not
necessarily fatal to their cause.
The facts of the case and equitable considerations
constrain us to grant the petition and to set aside the
questioned order of the respondent court. As stated
earlier, the reason for the rule is to enable the adverse
party to know beforehand whether he will have to
meet the issue of genuineness or due execution of the
document during trial. (In re Dicks Estate, 235 N.W.
401). While mandatory, the rule is a discovery
procedure and must be reasonably construed to attain
its purpose, and in a way as not to effect a denial of
substantial justice. The interpretation should be one
which assists the parties in obtaining a speedy,
inexpensive, and most important, a just determination
of the disputed issues.
The petitioners’ counsel was obviously lulled into
complacency by two factors. First, the plaintiffs, now
petitioners, had already stated under oath that they
never sold, transferred, or disposed of their shares in
the inheritance to others. Second, the usual procedure
is for a defendant to specifically deny under oath the
genuineness and due execution of documents set forth
in and annexed to the complaint. Somehow, it skipped
counsel’s attention that the rule refers to either an
action or a defense based upon a written instrument
or document. It applies to both plaintiffs and
defendants.
We repeat what We said in Obut v. Court of Appeals, et
al., supra, that what should guide judicial action is the
principle that a party-litigant is to be given the fullest
opportunity to establish the merits of his complaint or
defense rather than for him to lose life, liberty, honor
or property on technicalities.
Titan Construction Corporation vs. David, Sr.
Article 116 of the Family Code is even more
unequivocal in thatall property acquired during the
marriage, whether the acquisition appears to have
been made, contracted or registered in the name of
one or both spouses, is presumed to be conjugal unless
the contrary is proved.
In consonance with our ruling in Spouses Castro v.
Miat, 397 SCRA 271 (2003), Manuel was not required
to prove that the property was acquired with funds of
the partnership. Rather, the presumption applies even
when the manner in which the property was acquired
does not appear. Here, we find that Titan failed to
overturn the presumption that the property,
purchased during the spouses’ marriage, was part of
the conjugal partnership.
Settled is the rule that only errors of law and not of
fact are reviewable by this Court in a petition for
review on certiorari under Rule 45 of the Rules of
Court. This applies with even greater force here, since
the factual findings by the CA are in full agreement
with those of the trial court.
It is true that a notarial document is considered
evidence of the facts expressed therein. A notarized
document enjoys a prima facie presumption of
authenticity and due execution and only clear and
convincing evidence will overcome such legal
presumption. However, such clear and convincing
evidence is present here. While it is true that the SPA
was notarized, it is no less true that there were defects
in the notarization which mitigate against a finding
that the SPA was either genuine or duly executed.
In the decision, SC stated that:
“It is true that the reply filed by Manuel alleging
that the special power of attorney is a forgery was
not made under oath. However, the complaint,
which was verified by Manuel under oath, alleged
that the sale of the subject property executed by
his wife, Martha, in favor of Titan was without his
knowledge, consent, and approval, express or
implied; and that there is nothing on the face of
the deed of sale that would show that he gave his
consent thereto. In Toribio v. Bidin, it was held
that where the verified complaint alleged that the
plaintiff never sold, transferred or disposed their
share in the inheritance left by their mother to
others, the defendants were placed on adequate
notice that they would be called upon during trial
to prove the genuineness or due execution of the
disputed deed of sale. While Section 8, Rule 8 is
mandatory, it is a discovery procedure and must
be reasonably construed to attain its purpose, and
in a way as not to effect a denial of substantial
justice. The interpretation should be one which
assists the parties in obtaining a speedy,
inexpensive, and most important, a just
determination of the disputed issues.
Moreover, during the pre-trial, Titan requested for
stipulation that the special power of attorney was
signed by Manuel authorizing his wife to sell the
subject property, but Manuel refused to admit the
genuineness of said special power of attorney and
stated that he is presenting an expert witness to
 prove that his signature in the special power of
attorney is a forgery. However,
Titan did not register any objection x x x.
Furthermore, Titan did not object to the
presentation of Atty. Desiderio Pagui, who
testified as an expert witness, on his Report
finding that the signature on the special power of
attorney was not affixed by Manuel based on his
analysis of the questioned and standard
signatures of the latter, and even cross-examined
said witness. Neither did Titan object to the
admission of said Report when it was offered in
evidence by Manuel on the ground that he is
barred from denying his signature on the special
power of attorney. In fact, Titan admitted the
existence of said Report and objected only to the
purpose for which it was offered. In Central Surety
& Insurance Company v. C.N. Hodges, it was held
that where a party acted in complete disregard of
or wholly overlooked Section 8, Rule 8 and did not
object to the introduction and admission of
evidence questioning the genuineness and due
execution of a document, he must be deemed to
have waived the benefits of said Rule.
Consequently, Titan is deemed to have waived the
mantle of protection given [it] by Section 8, Rule
8”
Ogawa vs. Menigishi
A receipt is defined as a written and signed
acknowledgment that money or good was delivered or
received. Exhibit 1, upon which respondent relies to
support her counterclaim, sufficiently satisfies this
definition. However, while indubitably containing the
signatures of both parties, a plain reading of the
contents of Exhibit 1 negates any inference as to the
nature of the transaction for which the 1,000,000 Yen
was received and who between the parties is the
obligor and the obligee. What is apparent is a mere
written and signed acknowledgment that money was
received. There are no terms and conditions found
therein from which a right or obligation may be
established. Hence, it cannot be considered an
actionable document upon which an action or defense
may be founded.
A receipt is defined as a written and signed
acknowledgment that money or good was delivered or
received. Exhibit 1, upon which respondent relies to
support her counterclaim, sufficiently satisfies this
definition. However, while indubitably containing the
signatures of both parties, a plain reading of the
contents of Exhibit 1 negates any inference as to the
nature of the transaction for which the 1,000,000 Yen
was received and who between the parties is the
obligor and the obligee. What is apparent is a mere
written and signed acknowledgment that money was
received. There are no terms and conditions found
therein from which a right or obligation may be
established. Hence, it cannot be considered an
actionable document upon which an action or defense
may be founded.
Preponderance of evidence is the weight, credit, and
value of the aggregate evidence on either side and is
usually considered to be synonymous with the term
greater weight of evidence or greater weight of
credible evidence. From the evidence on record, it is
clear that respondent failed to prove her counterclaim
by preponderance of evidence.
Dela Cruz vs. Concepcion
Section 1, Rule 9 of the Rules of Court states that
defenses and objections not pleaded either in a motion
to dismiss or in the answer are deemed waived. Hence,
respondent should have been barred from raising the
defense of payment of the unpaid P200,000.00.
However, Section 5, Rule 10 of the Rules of Court
allows the amendment to conform to or authorize
presentation of evidence, to wit: Section 5.
Amendment to conform to or authorize presentation
of evidence.―When issues not raised by the pleadings
are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they
had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may
be made upon motion of any party at any time, even
after judgment; but failure to amend does not affect
the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not
within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so
with liberality if the presentation of the merits of the
action and the ends of substantial justice will be
subserved thereby. The court may grant a continuance
to enable the amendment to be made.
Respondent’s obligation consists of payment of a sum
of money. In order to extinguish said obligation,
payment should be made to the proper person as set
forth in Article 1240 of the Civil Code, to wit: Article
1240. Payment shall be made to the person in whose
favor the obligation has been constituted, or his
successor in interest, or any person authorized to
receive it. (Emphasis supplied) The Court explained in
Cambroon v. City of Butuan, 502 SCRA 494 (2006),
cited in Republic v. De Guzman, 652 SCRA 101 (2011),
to whom payment should be made in order to
extinguish an obligation: Payment made by the debtor
to the person of the creditor or to one authorized by
him or by the law to receive it extinguishes the
obligation. When payment is made to the wrong party,
however, the obligation is not extinguished as to the
creditor who is without fault or negligence even if the
debtor acted in utmost good faith and by mistake as to
the person of the creditor or through error induced by
fraud of a third person. In general, a payment in order
to be effective to discharge an obligation, must be
made to the proper person. Thus, payment must be
made to the obligee himself or to an agent having
authority, express or implied, to receive the particular
payment. Payment made to one having apparent
authority to receive the money will, as a rule, be
treated as though actual authority had been given for
its receipt. Likewise, if payment is made to one who by
law is authorized to act for the creditor, it will work a
discharge. The receipt of money due on a judgment by
an officer authorized by law to accept it will, therefore,
satisfy the debt.
Capitol Motors Corporations vs. Yabut
Section 10, Rule 8 of the Revised Rules of Court
recognizes three modes of specific denial, namely: (1)
by specifying each material allegation of fact in the
complaint the truth of which the defendant does not
admit, and, whenever practicable, setting forth the
substance of the matters which he will rely upon to
support his denial or (2) by specifying so much of an
averment in the complaint as is true and material and
denying only the remainder or (3) by stating that the
defendant is without knowledge or information
sufficient to form a belief as to the truth of a material
averment in the complaint, which has the effect of a
denial
The rule authorizing an answer to the effect that the
defendant has no knowledge or information sufficient
to form a belief as to the truth of an averment and
giving such answer the affect of a denial, does not
apply where the fact as to which want of knowledge is
asserted, is so plainly and necessarily within the
defendant’s knowledge that his averment of ignorance
must be palpably untrue.
Where the suit is one where a copy of the promissory
note sued upon was attached to the complaint, it
would be easy for the defendant to specifically allege
in his answer whether or not he had executed the
alleged instrument. Whether such fact was or was not
true could not be unknown to the defendant.
A mere allegation of ignorance of the facts alleged in
the complaint, is insufficient to raise an issue; the
defendant must aver positively or state how it is that
he is ignorant of the facts so alleged.
Where the action is founded upon a written
instrument attached to the complaint, and the
defendant failed to deny under oath the genuineness
and due execution of the instrument; the same are
deemed admitted.
Where the defendant neither opposed the motion for
judgment on the pleadings filed by the plaintiff nor
filed a motion for reconsideration of the order of the
court which deemed the case submitted for decision
on the pleadings, or of the decision of the same court
which rendered judgment based on the allegations and
prayer of the complaint, the defendant is deemed to
have admitted the allegations of the complaint, so that
there is no necessity for the plaintiff to submit
evidence of his claim.
Galofa vs. Nee Bon Sing
Where the plaintiff's allegation of his inability to take
actual possession of the parcel of land due to "an
unwarranted adverse claim of rights of ownership and
possession by the defendant" was followed by an
allegation of how such claim was exercised, and the
defendant's denial is as to "the material averments
contained in paragraph 4 of the complaint", conjoined
with his disclaimer of dominical or possessory rights
in the manner alleged in the complaint, such denial is a
negative pregnant, which is equivalent to an
admission.
Where a fact is alleged with some qualifying or
modifying language, and the denial is conjunctive, a
"negative pregnant" exists, and only the qualification
or modification is denied, while the fact itself is
admitted.
For having prayed for a judgment on the pleadings,
plaintiff is deemed to have admitted the truth of the
defendant's denial on the alleged damages and to have
rested his motion for judgment on those allegations
taken together with such of his own as are admitted in
the pleadings.
Gaza vs. Lim
Three (3) modes of specific denial
arecontemplated by the above provisions, namely:
(1) by specifying each material allegation of the
fact in the complaint, the truth of which the
 defendant does not admit, and whenever
practicable, setting forth the substance of the
matters which he will rely upon to support his
denial;
(2) by specifying so much of an averment in the
complaint as is true and material and denying only
the remainder;
(3) by stating that the defendant is without
knowledge or information sufficient to form a
belief as to the truth of a material averment in the
complaint, which has the effect of a denial.
We now resolve the basic substantial issue. In an
action for forcible entry, the plaintiff must prove that
he was in prior possession of the land or building and
that he was deprived thereof by means of force,
intimidation, threat, strategy or stealth. It must be
stressed, though, that he cannot succeed where it
appears that, as between himself and the defendant,
the latter had a possession antedating his own. To
ascertain this, it is proper to look at the situation as it
existed before the first act of spoliation occurred. Such
determination in this case requires a review of factual
evidence, generally proscribed in a petition like this.
Where a dispute over possession arises between two
persons, the person first having actual possession is
the one who is entitled to maintain the action granted
by law; otherwise, a mere usurper without any right
whatever, might enter upon the property of another
and, by allowing himself to be ordered off, could
acquire the right to maintain the action of forcible
entry and detainer, however momentary his intrusion
might have been.
RULE 9
Huerta Alba Resort, Inc. vs. Court of Appeals
From the various decisions, resolutions and orders a
quo it can be gleaned that what petitioner has been
adjudged to have was only the equity of redemption
over subject properties. On the distinction between
the equity of redemption and right of redemption, the
case of Gregorio Y. Limpin vs. Intermediate Appellate
Court, comes to the fore. Held the Court in the said
case: The equity of redemption is, to be sure, different
from and should not be confused with the right of
redemption. The right of redemption in relation to a
mortgage understood in the sense of a prerogative to
re-acquire mortgaged property after registration of
the foreclosure sale exists only in the case of the
extrajudicial foreclosure of the mortgage. No such
right is recognized in a judicial foreclosure except only
where the mortgagee is the Philippine National Bank
or a bank or banking institution. Where a mortgage is
foreclosed extra-judicially, Act 3135 grants to the
mortgagor the right of redemption within one (1) year
from the registration of the sheriff’s certificate of
foreclosure sale. Where the foreclosure is judicially
effected, however, no equivalent right of redemption
exists. The law declares that a judicial foreclosure sale,
when confirmed by an order of the court, x x shall
operate to divest the rights of all the parties to the
action and to vest their rights in the purchaser, subject
to such rights of redemption as may be allowed by law.
Such rights exceptionally allowed by law (i.e., even
after confirmation by an order of the court) are those
granted by the charter of the Philippine National Bank
(Acts No. 2747 and 2938), and the General Banking
Act (R.A. 337). These laws confer on the mortgagor, his
successors in interest or any judgment creditor of the
mortgagor, the right to redeem the property sold on
foreclosure after confirmation by the court of the
foreclosure sale which right may be exercised within a
period of one (1) year, counted from the date of
registration of the certificate of sale in the Registry of
Property.
Petitioner avers in its petition that the Intercon,
predecessor in interest of the private respondent, is a
credit institution, such that Section 78 of Republic Act
No. 337 should apply in this case. Stated differently, it
is the submission of petitioner that it should be
allowed to redeem subject properties within one year
from the date of sale as a result of the foreclosure of
the mortgage constituted thereon. The pivot of inquiry
here therefore, is whether the petitioner seasonably
invoked its asserted right under Section 78 of R.A. No.
337 to redeem subject properties. Petitioner theorizes
that it invoked its right in timely fashion, that is, after
confirmation by the court of the foreclosure sale, and
within one (1) year from the date of registration of the
certificate of sale. Indeed, the facts show that it was
only on May 2, 1995 when, in opposition to the Motion
for Issuance of Writ of Possession, did petitioner file a
Motion to Section 78 of R.A. No. 337. Petitioner failed
to assert a right to redeem in several crucial stages of
the proceedings. Compel Private Respondent to Accept
Redemption, invoking for the very first time its alleged
right to redeem subject properties under to Section 78
of R.A. No. 337. In light of the aforestated facts, it was
too late in the day for petitioner to invoke a right to
redeem under Section 78 of R.A. No. 337. Petitioner
failed to assert a right to redeem in several crucial
stages of the proceedings.
Indeed, at the earliest opportunity, when it submitted
its answer to the complaint for judicial foreclosure,
petitioner should have alleged that it was entitled to
the beneficial provisions of Section 78 of R.A. No. 337
but again, it did not make any allegation in its answer
regarding any right thereunder. It bears stressing that
the applicability of Section
78 of R.A. No. 337 hinges on the factual question of
whether or not private respondent’s predecessor in
interest was a credit institution. As was held in Limpin,
a judicial foreclosure sale, when confirmed by an order
of the court, x x shall operate to divest the rights of all
the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may
be allowed by law, which confer on the mortgagor, his
successors in interest or any judgment creditor of the
mortgagor, the right to redeem the property sold on
foreclosure after confirmation by the court of the
judicial foreclosure sale. Thus, the claim that
petitioner is entitled to the beneficial provisions of
Section 78 of R.A. No. 337 since private respondent’s
predecessor-in-interest is a credit institution· is in the
nature of a compulsory counterclaim which should
have been averred in Petitioner’s answer to the
complaint for judicial foreclosure.
The very purpose of a counterclaim would have been
served had petitioner alleged in its answer its
purported right under Section 78 of R.A. No. 337: x x x
The rules of counterclaim are designed to enable the
disposition of a whole controversy of interested
parties’ conflicting claims, at one time and in one
action, provided all parties be brought before the court
and the matter decided without prejudicing the rights
of any party.
It is error for a trial court in still allowing a party to
introduce evidence to accomplish what the latter
failed to do before the Court of Appeals, that is, to
invoke its alleged right under Section 78 of R.A. No.
337 although the said appellate court already found
that said question was never brought before it
squarely.
There is, therefore, merit in private respondent’s
contention that to allow petitioner to belatedly invoke
its right under Section 78 of R.A. No. 337 will disturb
the „law of the case. However, private respondent’s
statement of what constitutes the law of the case is not
entirely accurate. The “law of the case” is not simply
that the defendant possesses an equity of redemption.
As the Court has stated, the law of the case holds that
petitioner has the equity of the redemption without
any qualification whatsoever, that is, without the right
of redemption afforded by Section 78 of R.A. No. 337.
Whether or not the law of the case is erroneous is
immaterial, it still remains the „law of the case.‰ A
contrary rule will contradict both the letter and spirit
of the rulings of the Court of Appeals in CA-G.R. SP No.
35086, CA-G.R. CV No. 39243, and CA-G.R. 38747,
which clearly saw through the repeated attempts of
petitioner to forestall so simple a matter as making the
security given for a just debt to answer for its
payment.
Otero vs. Tan
A defendant who fails to file an answer may, upon
motion, be declared by the court in default. Loss of
standing in court, the forfeiture of one's right as a
party litigant, contestant or legal adversary, is the
consequence of an order of default. A party in default
loses his right to present his defense, control the
proceedings, and examine or cross-examine witnesses.
He has no right to expect that his pleadings would be
acted upon by the court nor may be object to or refute
evidence or motions filed against him.
The fact that a defendant has lost his standing in court
for having been declared in default does not mean that
he is left sans any recourse whatsoever. In Lina v. CA,
et al., 135 SCRA 637 (1985), this Court enumerated the
remedies available to party who has been declared in
default, to wit:
a) The defendant in default may, at any time after
discovery thereof and before judgment, file a
motion, under oath, to set aside the order of
default on the ground that his failure to answer
was due to fraud, accident, mistake or excusable
neglect, and that he has meritorious defenses;
(Sec. 3, Rule 18)
b) If the judgment has already been rendered
when the defendant discovered the default, but
before the same has become final and executory,
he may file a motion for new trial under Section
1(a) of Rule 37; c) If the defendant discovered the
default after the judgment has become final and
executory, he may file a petition for relief under
Section 2 of Rule 38; and d) He may also appeal
from the judgment rendered against him as
contrary to the evidence or to the law, even if no
petition to set aside the order of default has been
presented by him. (Sec. 2, Rule 41) (Emphasis
ours)
A defendant who has been declared in default is
precluded from raising any other ground in his appeal
from the judgment by default since, otherwise, he
would then be allowed to adduce evidence in his
defense, which right he had lost after he was declared
in default. Indeed, he is proscribed in the appellate
tribunal from adducing any evidence to bolster his
defense against the plaintiff’s claim.
In civil cases, it is a basic rule that the party making
allegations has the burden of proving them by a
preponderance of evidence. The parties must rely on
the strength of their own evidence and not upon the
weakness of the defense offered by their opponent.
This rule holds true especially when the latter has had
no opportunity to present evidence because of a
default order. Needless to say, the extent of the relief
that may be granted can only be so much as has been
alleged and proved with preponderant evidence
required under Section 1 of Rule 133.
Diona vs. Balangue
A Petition for Annulment of Judgment under Rule 47
of the Rules of Court is a remedy granted only under
exceptional circumstances where a party, without fault
on his part, has failed to avail of the ordinary remedies
of new trial, appeal, petition for relief or other
appropriate remedies. Said rule explicitly provides
that it is not available as a substitute for a remedy
which was lost due to the party’s own neglect in
promptly availing of the same. The underlying reason
is traceable to the notion that annulling final
judgments goes against the grain of finality of
judgment. Litigation must end and terminate
sometime and somewhere, and it is essential to an
effective administration of justice that once a
judgment has become final, the issue or cause involved
therein should be laid to rest.
While under Section 2, Rule 47 of the Rules of Court a
Petition for Annulment of Judgment may be based only
on the grounds of extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes lack of due
process as additional ground to annul a judgment. In
Arcelona v. Court of Appeals, 280 SCRA 20 (1997), this
Court declared that a final and executory judgment
may still be set aside if, upon mere inspection thereof,
its patent nullity can be shown for having been issued
without jurisdiction or for lack of due process of law.
It is settled that courts cannot grant a relief not prayed
for in the pleadings or in excess of what is being
sought by the party. They cannot also grant a relief
without first ascertaining the evidence presented in
support thereof. Due process considerations require
that judgments must conform to and be supported by
the pleadings and evidence presented in court. In
Development Bank of the Philippines v. Teston, 545
SCRA 422 (2008), this Court expounded that: Due
process considerations justify this requirement. It is
improper to enter an order which exceeds the scope of
relief sought by the pleadings, absent notice which
affords the opposing party an opportunity to be heard
with respect to the proposed relief. The fundamental
purpose of the requirement that allegations of a
complaint must provide the measure of recovery is to
prevent surprise to the defendant.
Notably, the Rules is even more strict in safeguarding
the right to due process of a defendant who was
declared in default than of a defendant who
participated in trial. For instance, amendment to
conform to the evidence presented during trial is
allowed the parties under the Rules. But the same is
not feasible when the defendant is declared in default
because Section 3(d), Rule 9 of the Rules of Court
comes into play and limits the relief that may be
granted by the courts to what has been prayed for in
the Complaint.
The raison d’être in limiting the extent of relief that
may be granted is that it cannot be presumed that the
defendant would not file an Answer and allow himself
to be declared in default had be known that the
plaintiff will be accorded a relief greater than or
different in kind from that sought in the Complaint. No
doubt, the reason behind Section 3(d), Rule 9 of the
Rules of Court is to safeguard Defendant’s right to due
process against unforeseen and arbitrarily issued
judgment. This, to the mind of this Court, is akin to the
very essence of due process. It embodies the sporting
idea of fair play and forbids the grant of relief on
matters where the defendant was not given the
opportunity to be heard thereon.
Rosario vs Caradang
PLEADING AND PRACTICE; FORCIBLE ENTRY AND
DETAINER; ALLEGATIONS IN THE COMPLAINT;
EFFECT THEREOF. A Simple allegation in the
complaint for forcible entry and detainer that the
defendant have filed an opposition in the case where
plaintiffs have applied for the registration of the parcel
of land subject of the complaint, does not amount to an
allegation that the defendants are claiming ownership
thereof, since an opposition in a registration case may
be based on claims or interest other than ownership in
the land sought to be registered. And neither does the
fact that plaintiffs pray in their complaint that they be
declared owners of the parcel in question convert
their action from one of forcible entry into one for
declaration of ownership or quieting of title; for the
prayer is not a material part of the complaint (Vda. De
Lacson vs. Diaz, 47 Off. Gaz., [Supp.] 237), and it is the
allegations of the complaint, and not the prayer, that
not only determined the jurisdiction of the court, but
confer that jurisdiction
Although amendments to pleadings are favored and
liberally allowed in the furtherance of justice, it is
obvious that when it appears from the very face of the
complaint that the Court has no jurisdiction over the
subject matter of the case, an amendment of the
complaint cannot be allowed so as to confer
jurisdiction upon the Court.
Before an answer or a motion to dismiss has been
filed, the original complaint is amendable, and the
amendment can supersede the original pleading, as of
right, without leave of court being required, and
without the court taking cognizance at all of the
original complaint.
The justice of the peace courts have exclusive
jurisdiction over forcible entry and detainer case,
regardless of the amount claimed therein as damages
(Lao Seng Hian, et al. vs. Hon. Natividad Almeda Lopez,
et al., 83 Phil., 617). The expenses for the filing of the
suit, viz costs and attorneys' fees, are excluded from
the jurisdictional amount that confer jurisdiction upon
courts.
Siasoco vs. Court of Appeals
In their Petition and Memorandum, Mario Siasoco, et
al. emphasize that the instant suit was commenced
pursuant to Rule 65 of the 1997 Rules of Procedure
and allege that Respondent Court of Appeals
committed grave abuse of discretion in issuing the
challenged Decision dated February 25, 1998 x x x.
This is a procedural error. For the writ of certiorari
under Rule 65 to issue, the petitioner must show not
only that the lower court acted with grave abuse of
discretion, but also that there is no appeal, or any
other plain, speedy, and adequate remedy in the
ordinary course of law. Since the questioned CA
Decision was a disposition on the merits, and since
said Court has no remaining issue to resolve, the
proper remedy available to petitioners was a petition
for review under Rule 45, not Rule 65. Furthermore, as
a general rule, certiorari under Rule 65 cannot issue
unless the lower court, through a motion for
reconsideration, has been given an opportunity to
correct the imputed error. Although there are
recognized exceptions to this rule, petitioners do not
claim that this case is one of them. For this procedural
lapse, the instant petition should be dismissed
outright.
It is clear that plaintiff (herein private respondent) can
amend its complaint once, as a matter of right, before a
responsive pleading is filed. Contrary to the
petitioners’ contention, the fact that Carissa had
already filed its Answer did not bar private
respondent from amending its original Complaint
once, as a matter of right, against herein petitioners.
Indeed, where some but not all the defendants have
answered, plaintiffs may amend their Complaint once,
as a matter of right, in respect to claims asserted solely
against the non-answering defendants, but not as to
claims asserted against the other defendants.
The rationale for the aforementioned rule is in Section
3, Rule 10 of the Rules of Court, which provides that
after a responsive pleading has been filed, an
amendment may be rejected when the defense is
substantially altered. Such amendment does not only
prejudice the rights of the defendant; it also delays the
action. In the first place, where a party has not yet filed
a responsive pleading, there are no defenses that can
be altered. Furthermore, the Court has held that
amendments to pleadings are generally favored and
should be liberally allowed in furtherance of justice in
order that every case may so far as possible be
determined on its real facts and in order to speed the
trial of cases or prevent the circuity of action and
unnecessary expense, unless there are circumstances
such as inexcusable delay or the taking of the adverse
party by surprise or the like, which might justify a
refusal of permission to amend.
True, an amendment cannot be allowed when the
court has no jurisdiction over the original Complaint
and the purpose of the amendment is to confer
jurisdiction on the court. In the present case, however,
the RTC had jurisdiction because the original
Complaint involved specific performance with
damages. In La Tondeña Distillers v. Ponferrada, this
Court ruled that a complaint for specific performance
with damages is a personal action and may be filed in
the proper court where any of the parties reside.
Philippine Ports Authority vs. William Gothong &
Aboitiz (WG&A), Inc.
The Court has emphasized the import of Section 3,
Rule 10 of the 1997 Rules of Civil Procedure in
Valenzuela v. Court of Appeals, 363 SCRA 779 (2001),
thus: Interestingly, Section 3, Rule 10 of the 1997
Rules of Civil Procedure amended the former rule in
such manner that the phrase “or that the cause of
action or defense is substantially Altered” was
stricken-off and not retained in the new rules. The
clear import of such amendment in Section 3, Rule 10
is that under the new rules, “the amendment may
(now) substantially alter the cause of action or
defense.” This should only be true, however, when
despite a substantial change or alteration in the cause
of action or defense, the amendments sought to be
made shall serve the higher interests of substantial
justice, and prevent delay and equally promote the
laudable objective of the rules which is to secure a just,
speedy and inexpensive disposition of every action
and proceeding.
Swagman Hotels and Travel, Inc. vs. Court of
Appeals
Cause of action, as defined in Section 2, Rule 2 of the
1997 Rules of Civil Procedure, is the act or omission by
which a party violates the right of another. Its
essential elements are as follows:
1. A right in favor of the plaintiff by whatever
means and under whatever law it arises or is
created;
2. An obligation on the part of the named
defendant to respect or not to violate such right;
and
3. Act or omission on the part of such defendant in
violation of the right of the plaintiff or constituting
a breach of the obligation of the defendant to the
plaintiff for which the latter may maintain an
action for recovery of damages or other
appropriate relief.
It is, thus, only upon the occurrence of the last element
that a cause of action arises, giving the plaintiff the
right to maintain an action in court for recovery of
damages or other appropriate relief.
With these findings of facts, it has become glaringly
obvious that when the complaint for a sum of money
and damages was filed with the trial court on 2
February 1999, no cause of action has as yet existed
because the petitioner had not committed any act in
violation of the terms of the three promissory notes as
modified by the renegotiation in December 1997.
Without a cause of action, the private respondent had
no right to maintain an action in court, and the trial
court should have therefore dismissed his complaint.
The curing effect under Section 5 is applicable only if a
cause of action in fact exists at the time the complaint
is filed, but the complaint is defective for failure to
allege the essential facts. For example, if a complaint
failed to allege the fulfillment of a condition precedent
upon which the cause of action depends, evidence
showing that such condition had already been fulfilled
when the complaint was filed may be presented
during the trial, and the complaint may accordingly be
amended thereafter. Thus, in Roces v. Jalandoni, this
Court upheld the trial court in taking cognizance of an
otherwise defective complaint which was later cured
by the testimony of the plaintiff during the trial. In that
case, there was in fact a cause of action and the only
problem was the insufficiency of the allegations in the
complaint. This ruling was reiterated in Pascua v.
Court of Appeals.
It thus follows that a complaint whose cause of action
has not yet accrued cannot be cured or remedied by an
amended or supplemental pleading alleging the
existence or accrual of a cause of action while the case
is pending. Such an action is prematurely brought and
is, therefore, a groundless suit, which should be
dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying
reason for this rule is that a person should not be
summoned before the public tribunals to answer for
complaints which are immature.
There was therefore a novation of the terms of the
three promissory notes in that the interest was waived
and the principal was payable in monthly installments
of US$750. Alterations of the terms and conditions of
the obligation would generally result only in
modificatory novation unless such terms and
conditions are considered to be the essence of the
obligation itself. The resulting novation in this case
was, therefore, of the modificatory type, not the
extinctive type, since the obligation to pay a sum of
money remains in force.
Superclean Services Corporation vs. Court of
Appeals
The supervening event was therefore cited not to
reinforce or aid the original demand, which was for
the execution of a contract in petitioner’s favor, but to
say that, precisely because of it, petitioner’s demand
could no longer be enforced, thus justifying petitioner
in changing the relief sought to one for recovery of
damages. This being the case, petitioner’s remedy was
not to supplement, but rather to amend its complaint.
Indeed the new relief sought (payment of damages in
lieu of an award of the contract for janitorial services)
is actually an alternative remedy to which petitioner
was entitled even before at the time of the filing of its
original complaint. If petitioner was entitled to the
award of the contract, as it claimed it was, it could
have asked either for an award of the contract for
janitorial services or for damages. The fact that it
opted for the first does not preclude it from
subsequently claiming damages because through no
fault of its own, the year passed without an award in
its favor, with the result that it could no longer
demand the execution of a contract in its favor after
that year.
But, it is contended, such an amendment of the
complaint would change the theory of the case. Three
reasons were cited by the Court of Appeals why it
thought the trial court correctly refused to admit the
so-called Supplemental Complaint of petitioner:
(1) change in the reliefs prayed for;
(2) change in the issues of the case; and
(3) prejudice to the rights of private respondent.
The contention has no merit. An amendment to change
the relief sought does not change the theory of a case.
What is prohibited is a change in the cause of action.
Indeed, what is important is that, as already stated, the
basic allegations of fact in the original and in the
amended complaints are the same, namely, that
private respondent, without justification, refused to
award the contract of services to petitioner. Through
no fault of petitioner, the year for which janitorial
services were to be rendered expired without the
resolution of petitioner’s case. It would be to exalt
technicality over substance to require that petitioner
file a new complaint. It would best serve the interests
of justice if the so-called Supplemental Complaint is
simply considered as embodying amendments to the
original complaint. In fact it appears that the court
ordered a continuation of the trial on September 19,
1991, despite petitioner’s statement in its
Supplemental Complaint that the original case had
become moot and academic.
Dela Cruz vs Concepcion
Section 1, Rule 9 of the Rules of Court states that
“defenses and objections not pleaded either in a
motion to dismiss or
in the answer are deemed waived.” Hence, respondent
should have been barred from raising the defense of
payment of the unpaid P200,000.00. However, Section
5, Rule 10 of the Rules of Court allows the amendment
to conform to or authorize presentation of evidence, to
wit: Section 5. Amendment to conform to or authorize
presentation of evidence.―When issues not raised by
the pleadings are tried with the express or implied
consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary
to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend
does not affect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it
is not within the issues made by the pleadings, the
court may allow the pleadings to be amended and shall
do so with liberality if the presentation of the merits of
the action and the ends of substantial justice will be
subserved thereby. The court may grant a continuance
to enable the amendment to be made.
Respondent’s obligation consists of payment of a sum
of money. In order to extinguish said obligation,
payment should be made to the proper person as set
forth in Article 1240 of the Civil Code, to wit: Article
1240. Payment shall be made to the person in whose
favor the obligation has been constituted, or his
successor in interest, or any person authorized to
receive it. (Emphasis supplied) The Court explained in
Cambroon v. City of Butuan, 502 SCRA 494 (2006),
cited in Republic v. De Guzman, 652 SCRA 101 (2011),
to whom payment should be made in order to
extinguish an obligation: Payment made by the debtor
to the person of the creditor or to one authorized by
him or by the law to receive it extinguishes the
obligation. When payment is made to the wrong party,
however, the obligation is not extinguished as to the
creditor who is without fault or negligence even if the
debtor acted in utmost good faith and by mistake as to
the person of the creditor or through error induced by
fraud of a third person. In general, a payment in order
to be effective to discharge an obligation, must be
made to the proper person. Thus, payment must be
made to the obligee himself or to an agent having
authority, express or implied, to receive the particular
payment. Payment made to one having apparent
authority to receive the money will, as a rule, be
treated as though actual authority had been given for
its receipt. Likewise, if payment is made to one who by
law is authorized to act for the creditor, it will work a
discharge. The receipt of money due on a judgment by
an officer authorized by law to accept it will, therefore,
satisfy the debt.
RULE 13: FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Prudential Bank vs. Business
Assistance Group, Inc.
G.R. No. 158806. December 16, 2004.
Remedial Law; Pleadings and Practice; Notices; Even if
a party represented by counsel has been actually
notified, said notice is not considered notice in law.—
Section 2, Rule 13 of the Rules of Civil Procedure
provides that “if a party has appeared by counsel,
service upon him shall be made upon his counsel or
one of them, unless service upon the party himself is
ordered by the court.” Thus, even if a party
represented by counsel has been actually notified, said
notice is not considered notice in law.
Service must be effected at the exact given address of
the lawyer and not in the vicinity or at the general
receiving section for an entire multi-storied building
with many offices.—We held in Philippine Long
Distance Telephone Co. v. NLRC that service must be
effected at the exact given address of the lawyer, and
not in the vicinity or at a general receiving section for
an entire multi-storied building with many offices.
Aberca et. al vs. Ver et. al
G.R. No. 166216. March 14, 2012.
Procedural due process is that which hears before it
condemns, which proceeds upon inquiry and renders
judgment only after trial. It contemplates notice and
opportunity to be heard before judgment is rendered
affecting one’s person or property. Moreover,
pursuant to the provisions of Section 5(5) of Article
VIII of the 1987 Constitution, the Court adopted and
promulgated the following rules concerning, among
others, the protection and enforcement of
constitutional rights, pleading, practice and procedure
in all courts: Rule 13. SEC. 5. Modes of service.—Service
of pleadings, motions, notices, orders, judgments and
other papers shall be made either personally or by
mail. SEC. 6. Personal service.—Service of the papers
may be made by delivering personally a copy to the
party or his counsel, or by leaving it in his office with
his clerk or with a person having charge thereof. If no
person is found in his office, or his office is not known,
or he has no office, then by leaving the copy, between
the hours of eight in the morning and six in the
evening, at the party’s or counsel’s residence, if
known, with a person of sufficient age and discretion
then residing therein. SEC. 7. Service by mail.—Service
by registered mail shall be made by depositing the
copy in the office, in a sealed envelope, plainly
addressed to the party or his counsel at his office, if
known, otherwise at his residence, if known, with
postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after ten
(10) days if undelivered. If no registry service is
available in the locality of either the sender or the
addressee, service may be done by ordinary mail. SEC.
8. Substituted service.—If service of pleadings,
motions, notices, resolutions, orders and other papers
cannot be made under the two preceding sections, the
office and place of residence of the party or his counsel
being unknown, service may be made by delivering
the copy to the clerk of court, with proof of failure of
both personal service and service by mail. The service
is complete at the time of such delivery. The above
rules, thus, prescribe the modes of service of
pleadings, motions, notices, orders, judgments, and
other papers, namely: (1) personal service; (2) service
by mail; and (3) substituted service, in case service
cannot be effected either personally or by mail.
To stress, the only modes of service of pleadings,
motions, notices, orders, judgments and other papers
allowed by the rules are personal service, service by
mail and substituted service if either personal service
or service by mail cannot be made, as stated in
Sections 6, 7 and 8 of Rule 13 of the Rules of Court.
Nowhere under this rule is service of notice to file
answer by publication is mentioned, much less
recognized. Furthermore, the Court would like to point
out that service by publication only applies to service
of summons stated under Rule 14 of the Rules of Court
where the methods of service of summons in civil
cases are: (1) personal service; (2) substituted service;
and (3) service by publication. Similarly, service by
publication can apply to judgments, final orders and
resolutions as provided under Section 9, Rule 13 of the
Rules of Court, as follows: SEC. 9. Service of judgments,
final orders or resolutions.—Judgments, final orders or
resolutions shall be served either personally or by
registered mail. When a party summoned by
publicationhas failed to appear in the
action, judgments, final orders or
resolutions against him shall be served upon him
also by publication at the expense of the prevailing
party.
The basic rules on modes of service of pleadings,
motions, notices, orders, judgments, and other papers
are mandatory in nature and, therefore, must be
strictly observed. The Court is not unaware of the
inherent power of courts to control its proceedings.
Nonetheless, the exercise of such inherent power must
not violate basic court procedures. More importantly,
it must not disregard one’s basic constitutional right to
procedural due process.
Suits should as much as possible be decided on the
merits and not on technicalities. In this regard, we
have often admonished courts to be liberal in setting
aside orders of default as default judgments are
frowned upon and not looked upon with favor for they
may amount to a positive and considerable injustice to
the defendant and the possibility of such serious
consequences necessitates a careful examination of
the grounds upon which the defendant asks that it be
set aside. Since rules of procedure are mere tools
designed to facilitate the attainment of justice, it is
well recognized that this Court is empowered to
suspend its operation, or except a particular case from
its operation, when the rigid application thereof tends
to frustrate rather than promote the ends of justice.
We are not unmindful of the fact that during the
pendency of the instant petition, the trial court has
rendered judgment against petitioners. However,
being the court of last resort, we deem it in the best
interest that liberality and relaxation of the Rules be
extended to petitioners by setting aside the order of
default issued by the trial court and the consequent
default judgment; otherwise, great injustice would
result if petitioners are not afforded an opportunity to
prove their claims.

The Court ruled that, generally, judgments by default

are looked upon with disfavor and are frowned upon
as contrary to public policy. An example here would be
the case of Regalado P. Samartino v. Leonor B.
Raon, 383 SCRA 664 (2002), where the Court stated:
The trial court should not have been too rash in
declaring petitioner in default, considering it had
actual notice of valid reasons that prevented him from
answering. Well-settled is the rule that courts should
be liberal in setting aside orders of default for default
judgments are frowned upon, unless in cases where it
clearly appears that the reopening of the case is
intended for delay. The issuance of orders of default
should be the exception rather than the rule, to be
allowed only in clear cases of obstinate refusal by the
defendant to comply with the orders of the trial court.
RULE 14: SUMMONS
Sansio Philippines, inc., vs.
Spouses Alicia and Leodegario
Mogol, jr.,
G.R. No. 177007. July 14,
Personal service of summons most effectively ensures
that the notice desired under the constitutional
requirement of due process is accomplished—the
essence of personal service is the handing or tendering
of a copy of the summons to the defendant himself,
wherever he may be found; that is, wherever he may be,
provided he is in the Philippines.—It is well-established
that summons upon a respondent or a defendant must
be served by handing a copy thereof to him in person
or, if he refuses to receive it, by tendering it to him.
Personal service of summons most effectively ensures
that the notice desired under the constitutional
requirement of due process is accomplished. The
essence of personal service is the handing or tendering
of a copy of the summons to the defendant himself,
wherever he may be found; that is, wherever he may
be, provided he is in the Philippines.
Substituted Service; Service of summons in the persons
of the defendants is generally preferred over substituted
service—substituted service derogates the regular
method of personal service—it is an extraordinary
method, since it seeks to bind the respondent or the
defendant to the consequences of a suit, even though
notice of such action is served not upon him but upon
another whom the law could only presume would notify
him of the pending proceedings.—Sections 6 and 7 of
Rule 14 of the Rules of Court cannot be construed to
apply simultaneously. Said provisions do not provide
for alternative modes of service of summons, which
can either be resorted to on the mere basis of
convenience to the parties. Under our procedural
rules, service of summons in the persons of the
defendants is generally preferred over substituted
service. Substituted service derogates the regular
method of personal service. It is an extraordinary
method, since it seeks to bind the respondent or the
defendant to the consequences of a suit, even though
notice of such action is served not upon him but upon
another whom the law could only presume would
notify him of the pending proceedings. For substituted
service to be justified, the following circumstances
must be clearly established: (a) personal service of
summons within a reasonable time was impossible;
(b) efforts were exerted to locate the party; and (c) the
summons was served upon a person of sufficient age
and discretion residing at the party’s residence or
upon a competent person in charge of the party’s
office or place of business.
Laus vs. Court of Appeals
G.R. No. 101256. March 8, 1993.
Generally, summons must be served personally and if it
cannot be effected within a reasonable time, substituted
service may be resorted to under Section 8 of Rule 14.—
The general rule in this jurisdiction is that summons
must be personally served; pursuant to Section 7, Rule
14 of the Revised Rules of Court, such personal service
is to be accomplished by "handing a copy thereof to
the defendant in person or, if he refuses to receive it,
by tendering it to him." However, if this mode of
service cannot be effected within a reasonable time,
substituted service may be resorted to under Section 8
of the same Rule.
What contemplates "within a reasonable time"; Statutes
prescribing modes other than personal service of
summons must be strictly complied with to give the
court jurisdiction and such compliance must appear
affirmatively in the return.—"Within a reasonable
time" contemplates a period of time longer than that
demarcated by the word "prompt," and presupposes
that a prior attempt at personal service, within a
justifiable time frame as would be necessary to bring
the defendant within the jurisdiction of the court, had
failed. Since substituted service is in derogation of the
common law and is extraordinary in character, it must
be used only as prescribed and in the circumstances
authorized by statute. Statutes prescribing modes
other than personal service of summons must be
strictly complied with to give the court jurisdiction,
and such compliance must appear affirmatively in the
return.
Service of summons may be made at night as well as
during the day or even on a Sunday or holiday because
of its ministerial character.—It is all too obvious that
no earnest efforts were exerted by Deputy Sheriff Cruz
to effect the
personal service of summons. His testimony thus
attests to an undue, if not indecent, haste to serve the
summons at the first attempt without making sure
that personal service was, by then and even thereafter,
an impossibility because either the petitioners had left
for a foreign country or an unknown destination with
no definite date of returning within a reasonable
period or had gone into hiding to avoid service of any
process from the courts. If he had only made the
inquiries suggested above, he could have returned in
the evening of 10 October 1989 or on any of the
succeeding days—including the following Saturday
and Sunday. Service of summons may be made at night
as well as during the day, or even on a Sunday or
holiday because of its ministerial character
The substituted service of summons in this case not
validly effected, trial court did not acquire jurisdiction
over the persons of the petitioners.—Since the
substituted service of summons in this case was not
validly effected, the trial court did not acquire
jurisdiction over the persons of the petitioners. The
order of default, the judgment by default, the writ of
execution issued by it, as well as the auction sale of the
petitioners' properties levied on execution are,
therefore, all null and void.
If a defendant had not been properly summoned, the
period to file a motion to dismiss for lack of jurisdiction
over his person does not commence to run until he
voluntarily submits to the jurisdiction of the court.—It
is not accurate for the latter to have said that the
petitioners 'motion to dismiss was not filed seasonably
because it was filed beyond the reglementary period
provided in the Revised Rules of Court. Such a
conclusion would doubtless be correct if there was a
valid service of summons. If, however, a defendant had
not been properly summoned, the period to file a
motion to dismiss for lack of jurisdiction over his
person does not commence to run until he voluntarily
submits to the jurisdiction of the court, since the court
has no jurisdiction to adjudicate the controversy as to
him until such time. In this case, petitioners did not
voluntarily submit to the jurisdiction of the trial court.
Consequently, the period to file a responsive pleading
did not even commence to run.
Rule that an order denying a motion to dismiss being
interlocutory and cannot be the subject of a petition for
certiorari admits exceptions.—Nor are We persuaded
by the respondent Court's declaration that even if the
motion to dismiss had been filed on time, the trial
court's order denying the same, being interlocutory,
still cannot be the subject of a petition
for certiorari. To be sure, this rule admits of an
exception, as when the trial court clearly acted outside
of its jurisdiction or with grave abuse of discretion in
denying the motion to dismiss.
Manotoc vs. Court of Appeals
G.R. No. 130974. August 16, 2006.
Summons; Substituted Service; While substituted service
of summons is permitted, since it is extraordinary in
character and in derogation of the usual method of
service, it must faithfully and strictly comply with the
prescribed requirements and circumstances authorized
by the rules.—Jurisdiction over the defendant is
acquired either upon a valid service of summons or
the defendant’s voluntary appearance in court. When
the defendant does not voluntarily submit to the
court’s jurisdiction or when there is no valid service of
summons, “any judgment of the court which has no
jurisdiction over the person of the defendant is null
and void.” In an action strictly in personam, personal
service on the defendant is the preferred mode of
service, that is, by handing a copy of the summons to
the defendant in person. If defendant, for excusable
reasons, cannot be served with the summons within a
reasonable period, then substituted service can be
resorted to. While substituted service of summons is
permitted, “it is extraordinary in character and in
derogation of the usual method of service.” Hence, it
must faithfully and strictly comply with the prescribed
requirements and circumstances authorized by the
rules. Indeed, “compliance with the rules regarding the
service of summons is as much important as the issue
of due process as of jurisdiction.”
The party relying on substituted service or the sheriff
must show that defendant cannot be served promptly or
there is impossibility of prompt service; “Reasonable
time” is defined as so much time as is necessary under
the circumstances for a reasonably prudent and diligent
man to do, conveniently, what the contract or duty
requires that should be done, having a regard for the
rights and possibility of loss, if any, to the other
party; One month from the issuance of summons can be
considered “reasonable time” with regard to personal
service on the defendant.—The party relying on
substituted service or the sheriff must show that
defendant cannot be served promptly or there is
impossibility of prompt service. Section 8, Rule 14
provides that the plaintiff or the sheriff is given a
“reasonable time” to serve the summons to the
defendant in person, but no specific time frame is
mentioned. “Reasonable time” is defined as “so much
time as is necessary under the circumstances for a
reasonably prudent and diligent man to do,
conveniently, what the contract or duty requires that
should be done, having a regard for the rights and
possibility of loss, if any[,] to the other party.” Under
the Rules, the service of summons has no set period.
However, when the court, clerk of court, or the
plaintiff asks the sheriff to make the return of the
summons and the latter submits the return of
summons, then the validity of the summons lapses.
The plaintiff may then ask for an alias summons if the
service of summons has failed. What then is a
reasonable time for the sheriff to effect a personal
service in order to demonstrate impossibility of
prompt service? To the plaintiff, “reasonable time”
means no more than seven (7) days since an
expeditious processing of a complaint is what a
plaintiff wants. To the sheriff, “reasonable time” means
15 to 30 days because at the end of the month, it is a
practice for the branch clerk of court to require the
sheriff to submit a return of the summons assigned to
the sheriff for service. The Sheriff’s Return provides
data to the Clerk of Court, which the clerk uses in the
Monthly Report of Cases to be submitted to the Office
of the Court Administrator within the first ten (10)
days of the succeeding month. Thus, one month from
the issuance of summons can be considered
“reasonable time” with regard to personal service on
the defendant.
Sheriffs are enjoined to try their best efforts to
accomplish personal service on defendant, and since the
defendant is expected to try to avoid and evade service
of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process
on the defendant; “Several attempts” means at least
three (3) tries, preferably on at least two different
dates.—Sheriffs are asked to discharge their duties on
the service of summons with due care, utmost
diligence, and reasonable promptness and speed so as
not to prejudice the expeditious dispensation of
justice. Thus, they are enjoined to try their best efforts
to accomplish personal service on defendant. On the
other hand, since the defendant is expected to try to
avoid and evade service of summons, the sheriff must
be resourceful, perse-vering, canny, and diligent in
serving the process on the defendant. For substituted
service of summons to be available, there must be
several attempts by the sheriff to personally serve the
summons within a reasonable period [of one month]
which eventually resulted in failure to prove
impossibility of prompt service. “Several attempts”
means at least three (3) tries, preferably on at least
two different dates. In addition, the sheriff must cite
why such efforts were unsuccessful. It is only then that attained the age of full legal capacity (18 years old)
impossibility of service can be confirmed or accepted. and is considered to have enough discernment to
understand the importance of a summons. “Discre-
tion” is defined as “the ability to make decisions which
represent a responsible choice and for which an
The sheriff must describe in the Return of Summons the
understanding of what is lawful, right or wise may be
facts and circumstances surrounding the attempted
presupposed”. Thus, to be of sufficient discretion, such
personal service—the efforts made to find the defendant
person must know how to read and understand
and the reasons behind the failure must be clearly
English to comprehend the import of the summons,
narrated in detail in the Return.—The sheriff must
and fully realize the need to deliver the summons and
describe in the Return of Summons the facts and
complaint to the defendant at the earliest possible
circumstances surrounding the attempted personal
time for the person to take appropriate action. Thus,
service. The efforts made to find the defendant and the
the person must have the “relation of confidence” to
reasons behind the failure must be clearly narrated in
the defendant, ensuring that the latter would receive
detail in the Return. The date and time of the attempts
or at least be notified of the receipt of the summons.
on personal service, the inquiries made to locate the
The sheriff must therefore determine if the person
defendant, the name/s of the occupants of the alleged
found in the alleged dwelling or residence of
residence or house of defendant and all other acts
defendant is of legal age, what the recipient’s
done, though futile, to serve the summons on
relationship with the defendant is, and whether said
defendant must be specified in the Return to justify
person comprehends the significance of the receipt of
substituted service. The form on Sheriff’s Return of
the summons and his duty to immediately deliver it to
Summons on Substituted Service prescribed in the
the defendant or at least notify the defendant of said
Handbook for Sheriffs published by the Philippine
receipt of summons. These matters must be clearly
Judicial Academy requires a narration of the efforts
and specifically described in the Return of Summons.
made to find the defendant personally and the fact of
failure. Supreme Court Administrative Circular No. 5
dated November 9, 1989 requires that “impossibility
of prompt service should be shown by stating the If the substituted service will be done at de-fendant’s
efforts made to find the defendant personally and the office or regular place of business, then it should be
failure of such efforts,” which should be made in the served on a competent person in charge of the place.—If
proof of service. the substituted service will be done at defendant’s
office or regular place of business, then it should be
served on a competent person in charge of the place.
Thus, the person on whom the substituted service will
A person of suitable age and discretion is one who has
be made must be the one managing the office or
attained the age of full legal capacity (18 years old) and
business of defendant, such as the president or
is considered to have enough discernment to understand
manager; and such individual must have sufficient
the importance of a summons; “Discretion” is defined as
knowledge to understand the obligation of the
the ability to make decisions which represent a
defendant in the summons, its importance, and the
responsible choice and for which an understanding of
prejudicial effects arising from inaction on the
what is lawful, right or wise may be presupposed; The
summons. Again, these details must be contained in
person upon whom substituted service is made must
the Return.
have the “relation of confidence” to the defendant,
ensuring that the latter would receive or at least be
notified of the receipt of the summons.—If the
substituted service will be effected at defendant’s Given the fact that the substituted service of summons
house or residence, it should be left with a person of may be assailed by a Motion to Dismiss, it is imperative
“suitable age and discretion then residing therein.” A that the pertinent facts and circumstances surrounding
the service of summons be described with more
person of suitable age and discretion is one who has
particularity in the Return or Certificate of Service.—A
meticulous scrutiny of the aforementioned Return
readily reveals the absence of material data on the
serious efforts to serve the Summons on petitioner
Manotoc in person. There is no clear valid reason cited
in the Return why those efforts proved inadequate, to
reach the conclusion that personal service has become
impossible or unattainable outside the generally
couched phrases of “on many occasions several
attempts were made to serve the summons x x x
personally,” “at reasonable hours during the day,” and
“to no avail for the reason that the said defendant is
usually out of her place and/or residence or premises.”
Wanting in detailed information, the Return deviates
from the ruling—in Domagas v. Jensen, and other
related cases—that the pertinent facts and
circumstances on the efforts exerted to serve the
summons personally must be narrated in the Return.
It cannot be determined how many times, on what
specific dates, and at what hours of the day the
attempts were made. Given the fact that the
substituted service of summons may be assailed, as in
the present case, by a Motion to Dismiss, it is
imperative that the pertinent facts and circumstances
surrounding the service of summons be described
with more particularity in the Return or Certificate of
Service.
Before resorting to substituted service, a plaintiff must
demonstrate an effort in good faith to locate the
defendant through direct means.—Apart from the
allegation of petitioner’s address in the Complaint, it
has not been shown that respondent Trajano or Sheriff
Cañelas, who served such summons, exerted
extraordinary efforts to locate petitioner. Certainly,
the second paragraph of the Complaint only states that
respondents were “informed, and so [they] allege”
about the address and whereabouts of petitioner.
Before resorting to substituted service, a plaintiff must
demonstrate an effort in good faith to locate the
defendant through more direct means. More so, in the
case in hand, when the alleged petitioner’s residence
or house is doubtful or has not been clearly
ascertained, it would have been better for personal
service to have been pursued persistently.
In view of the numerous claims of irregularities in
substituted service which have spawned the filing of a
great number of unnecessary special civil actions of
certiorari and appeals to higher courts, resulting in
prolonged litigation and wasteful legal expenses, the
narration of the efforts made to find the defendant and
the fact of failure written in broad and imprecise words
will not suffice—the facts and circumstances should be
stated with more particularity and detail on the number
of attempts made at personal service, dates and times of
the attempts, inquiries to locate defendant, names of
occupants of the alleged residence, and the reasons for
failure should be included in the Return to satisfactorily
show the efforts undertaken; To allow sheriffs to
describe the facts and circumstances in inexact terms
would encourage routine performance of their precise
duties relating to substituted service—for it would be
quite easy to shroud or conceal carelessness or laxity in
such broad terms.
There are two requirements under the Rules regarding
leaving summons with a “person of suitable age and
discretion” residing in defendant’s house or residence,
namely, (1) recipient must be a person of suitable age
and discretion, and, (2) recipient must reside in the
house or residence of defendant; To protect a
defendant’s right to due process by being accorded
proper notice of a case against her, the substituted
service of summons must be shown to clearly comply
with the rules.
United Coconut Planters Bank vs.
Ongpin
G.R. No. 146593. October 26, 2001
A party who makes a special appearance in court
challenging the jurisdiction of said court based on the
ground, e.g., invalidity of the service of summons, cannot
be considered to have submitted himself to the
jurisdiction of the court; Even the assertion of
affirmative defenses aside from-lack of jurisdiction over
the person of the defendant cannot be considered a
waiver of the defense of lack of jurisdiction over such
person.—A party who makes a special appearance in
court challenging the jurisdiction of said court based
on the ground, e.g., invalidity of the service of
summons, cannot be considered to have submitted
himself to the jurisdiction of the court. In fact, in La
Naval Drug Corp. vs. Court of Appeals, this Court ruled
that even the assertion of affirmative defenses aside
from lack of jurisdiction over the person of the
defendant cannot be considered a waiver of the
defense of lack of jurisdiction over such person
Jurisdiction cannot be acquired over the person of
respondent even if he knows of the case against him
unless he is validly served with summons.
Substituted service of summons in a person claiming to
be authorized to receive service of summons in behalf of
the corporation was held to be invalid as far as
jurisdiction over the person of the chairman of the
board was concerned inasmuch as he was not holding
office in the corporation but in his residence.—The
word “office” or the phrase “regular place of business”
refers to the office or place of business of the
defendant at the time of service. The rule specifically
designates the persons to whom copies of the process
should be left. In Mapa vs. Court of Appeals, substituted
service of summons in a person claiming to be
authorized to receive service of summons in behalf of
the corporation was held to be invalid as far as
jurisdiction over the person of the chairman of the
board was concerned inasmuch as he was not holding
office in the corporation but in his residence. Thus, it
does not necessarily follow that the regular place of
business of a chairman of the board of directors is the
same as the address of the corporation as it is possible
for him to hold office elsewhere.
Filomena Domagas vs. Vivian
Layno Jensen
G.R. No. 158407. January 17, 2005.
Whether a proceeding is in rem or in personam or quasi
in rem for that matter, is determined by its nature and
purpose and by these only; Actions for recovery of real
property are in personam.
Manner of Service of Summons in an Action in
Personam.—In Asiavest Limited v. Court of Appeals, the
Court had the occasion to state: 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: (a)
substituted service set forth in Section 8; (2) personal
service outside the country, with leave of court; (3)
service by publication, also with leave of court; or (4)
any other manner the court may deem sufficient.
The statutory requirement of substituted service must
be followed faithfully and strictly and any substituted
service other than that authorized by the statute is
rendered ineffective.—Strict compliance with the mode
of service is required in order that the court may
acquire jurisdiction over the person of the defendant.
The statutory requirement of substituted service must
be followed faithfully and strictly and any substituted
service other than that authorized by the statute is
rendered ineffective.
The term “dwelling house” or “residence” are generally
held to refer to the time of service, hence it is not
sufficient to leave the summons at the former’s dwelling
house, residence or place of abode, as the case may be.—
In Keister v. Navarro, the Court held that the term
“dwelling house” or “residence” are generally held to
refer to the time of service; hence, it is not sufficient to
leave the summons at the former’s dwelling house,
residence or place of abode, as the case may be.
Dwelling house or residence refers to the place where
the person named in the summons is living at the time
when the service is made, even though he may be
temporarily out of the country at the time. It is, thus,
the service of the summons intended for the defendant
that must be left with the person of suitable age and
discretion residing in the house of the defendant.
Compliance with the rules regarding the service of
summons is as much important as the issue of due
process as of jurisdiction.
The service of the summons on a person at a place
where he was a visitor is not considered to have been
left at the residence or place or abode, where he has
another place at which he ordinarily stays and to which
he intends to return.—As gleaned from the said return,
there is no showing that as of April 5, 1999, the house
where the Sheriff found Oscar Layno was the latter’s
resi dence or that of the respondent herein. Neither is
there any showing that the Sheriff tried to ascertain
where the residence of the respondent was on the said
date. It turned out that the occupant of the house was
a lessor, Eduardo Gonzales, and that Oscar Layno was
in the premises only to collect the rentals from him.
The service of the summons on a person at a place
where he was a visitor is not considered to have been
left at the residence or place or abode, where he has
another place at which he ordinarily stays and to
which he intends to return.
Robinson vs. Miralles
G.R. No. 163584. December 12, 2006.
Summons is a writ by which the defendant is notified of
the action brought against him or her.— Summons is a
writ by which the defendant is notified of the action
brought against him or her. In a civil action, service of
summons is the means by which the court acquires
jurisdiction over the person of the defendant. Any
judgment without such service, in the absence of a
valid waiver, is null and void. Where the action is in
personam and the defendant is in the Philippines, the
service of summons may be made through personal or
substituted service in the manner provided for in
Sections 6 and 7, Rule 14 of the 1997 Rules of
Procedure, as amended.
For substituted service to be justified, the following
circumstances must be clearly established: (a) personal
service of summons within a reasonable time was
impossible; (b) efforts were exerted to locate the party;
and (c) the summons was served upon a person of
sufficient age and discretion residing at the party’s
residence or upon a competent person in charge of the
party’s office or place of business.- Under our
procedural rules, personal service is generaly
preferred over substituted service, the latter mode of
service being a method extraordinary in character. For
substituted service to be justified, the following
circumstances must be clearly established: (a)
personal service of summons within a reasonable time
was impossible; (b) efforts were exerted to locate the
party; and (c) the summons was served upon a person
of sufficient age and discretion residing at the party’s
residence or upon a competent person in charge of the
party’s office or place of business. Failure to do so
would invalidate all subsequent proceedings on
jurisdictional grounds.
Where the sheriff was refused entry by the security
guard upon the defendant’s strict instructions not to
allow anybody to proceed to her residence whenever she
is out, making it impossible for the sheriff to effect
personal or substituted service upon such defendant,
service upon the guard is deemed sufficient for the court
to acquire jurisdiction over the said defendant. —In his
Return, Sheriff Potente declared that he was refused
entry by the security guard in Alabang Hills twice. The
latter informed him that petitioner prohibits him from
allowing anybody to proceed to her residence
whenever she is out. Obviously, it was impossible for
the sheriff to effect personal or substituted service of
summons upon petitioner. We note that she failed to
controvert the sheriff’s declaration. Nor did she deny
having received the summons through the security
guard. Considering her strict instruction to the
security guard, she must bear its consequences. Thus,
we agree with the trial court that summons has been
properly served upon petitioner and that it has
acquired jurisdiction over her.

Sagana vs. Francisco
G.R. No. 161952. October 2, 2009.
Jurisprudence has long established that for substituted
service of summons to be valid, the following must be
demonstrated: (a) that personal service of summons
within a reasonable time was impossible; (b) that
efforts were exerted to locate the party; and (c) that
the summons was served upon a person of sufficient
age and discretion residing at the party’s residence or
upon a competent person in charge of the party’s
office or regular place of business. It is likewise
required that the pertinent facts proving these
circumstances be stated in the proof of service or in
the officer’s return.
We do not intend this ruling to overturn jurisprudence
to the effect that statutory requirements of substituted
service must be followed strictly, faithfully, and fully,
and that any substituted service other than that
authorized by the Rules is considered ineffective.
However, an overly strict application of the Rules is
not warranted in this case, as it would clearly frustrate
the spirit of the law as well as do injustice to the
parties, who have been waiting for almost 15 years for
a resolution of this case. We are not heedless of the
widespread and flagrant practice whereby defendants
actively attempt to frustrate the proper service of
summons by refusing to give their names, rebuffing
requests to sign for or receive documents, or eluding
officers of the court. Of course it is to be expected that
defendants try to avoid service of summons,
prompting this Court to declare that, “the sheriff must
be resourceful, persevering, canny, and diligent in
serving the process on the defendant.” However,
sheriffs are not expected to be sleuths, and cannot be
faulted where the defendants themselves engage in
deception to thwart the orderly administration of
justice.
The purpose of summons is two-fold: to acquire
jurisdiction over the person of the defendant and to
notify the defendant that an action has been
commenced so that he may be given an opportunity to
be heard on the claim against him.—The purpose of
summons is two-fold: to acquire jurisdiction over the
person of the defendant and to notify the defendant
that an action has been commenced so that he may be
given an opportunity to be heard on the claim against
him. Under the circumstances of this case, we find that
respondent was duly apprised of the action against
him and had every opportunity to answer the charges
made by the petitioner. However, since respondent
refused to disclose his true address, it was impossible
to personally serve summons upon him. Considering
that respondent could not have received summons
because of his own pretenses, and has failed to
provide an explanation of his purported “new”
residence, he must now bear the consequences.
Gentle Supreme Philippines vs.
Consulta
G.R. No. 183182. September 1, 2010.
There is valid substituted service of summons on
Consulta at his place of business with some competent
person in charge thereof.—There is valid substituted
service of summons on Consulta at his place of
business with some competent person in charge
thereof. According to the sheriff’s return, which
is prima facie evidence of the facts it states, he served a
copy of the complaint on Canave, an authorized
representative of both Consulta and Sarayba. Besides
Consulta’s bare allegations, he did not present
evidence to rebut the presumption of regularity on the
manner that the sheriff performed his official duty.
Nor did Consulta present clear and convincing
evidence that Canave was not competent to receive
the summons and the attached documents for him.
It is not necessary that the person in charge of the
defendant’s regular place of business be specifically
authorized to receive the summons; it is enough that he
appears to be in charge.—This Court has ruled that “it
is not necessary that the person in charge of the
defendant’s regular place of business be specifically
authorized to receive the summons. It is enough that
he appears to be in charge.” In this case, Canave, a
secretary whose job description necessarily includes
receiving documents and other correspondence,
would have the semblance of authority to accept the
court documents.
Orosa et. Al., vs. CA et. Al.,
G.R. No. 118696. September 3, 1996
Whatever defect there was in the mode of service of
summons was deemed waived and the court acquired
jurisdiction over the persons of petitioners by their
voluntary submission thereto.—Admittedly, the sheriff
s return dated 8 February 1993 is bereft of any
particulars on the impossibility of personal service on
petitioners within a reasonable time. However, they
are deemed to have waived any flaw in the court’s
jurisdiction arising from a defective service of
summons. For, instead of entering a special
appearance questioning the propriety of the service of
summons, hence, the exercise of jurisdiction by the
trial court over petitioners, they filed a motion for
additional time to file answer on 24 February 1993,
which was beyond the reglementary period. In effect,
they voluntarily submitted to the jurisdiction of the
court. Consequently, whatever defect there was in the
mode of service of summons was deemed waived and
the court acquired jurisdiction over the persons of
petitioners by their voluntary submission thereto.
The certificate of service of summons by the sheriff is
prima facie evidence of the facts set out in such
certificate.— As between the sheriff’s return which
clearly indicates that the summons was served on 6
February 1993 and petitioners’ allegation that they
actually received the summons only on 9 February
1993, because it was only then that it was delivered to
them by their employees, the sheriff’s return has more
probative value. The certificate of service of summons
by the sheriff is prima facie evidence of the facts set
out in such certificate. To overcome the presumption
arising from the sheriff’s return, the evidence must be
clear and convincing. But petitioners failed to
overcome this presumption. Hence, there is no
question that the motion for additional time to file
answer was submitted beyond the period fixed by law.
Mason vs. Court of Appeals
G.R. No. 144662. October 13, 2003.
Question of whether the substantial compliance rule is
still applicable under Section 11, rule 14 of the 1997
Rule of Civil Procedure has been settled in Villarosa
which applies squarely to the instant case.—The
question of whether the substantial compliance rule is
still applicable under Section 11, Rule 14 of the 1997
Rules of Civil Procedure has been settled
in Villarosa which applies squarely to the instant case.
In the said case, petitioner E.B. Villarosa & Partner Co.
Ltd.(hereafter Villarosa) with principal office address
at 102 Juan Luna St., Davao City and with branches at
2492 Bay View Drive, Tambo, Parañaque, Metro
Manila and Kolambog, Lapasan, Cagayan de Oro City,
entered into a sale with development agreement with
private respondent Imperial Development
Corporation. As Villarosa failed to comply with its
contractual obligation, private respondent initiated a
suit for breach of contract and damages at the
Regional Trial Court of Makati. Summons, together
with the complaint, was served upon Villarosa through
its branch manager at Kolambog, Lapasan, Cagayan de
Oro City. Villarosa filed a Special Appearance with
Motion to Dismiss on the ground of improper service
of summons and lack of jurisdiction. The trial court
denied the motion and ruled that there was
substantial compliance with the rule, thus, it acquired
jurisdiction over Villarosa. The latter questioned the
denial before us in its petition for certiorari. We
decided in Villarosa’s favor and declared the trial court
without jurisdiction to take cognizance of the case. We
held that there was no valid service of summons on
Villarosa as service was made through a person not
included in the enumeration in Section 11, Rule 14 of
the 1997 Rules of Civil Procedure, which revised the
Section 13, Rule 14 of the 1964 Rules of Court. We
discarded the trial court’s basis for denying the motion
to dismiss, namely, private respondent’s substantial
compliance with the rule on service of summons, and
fully agreed with petitioner’s assertions that the
enumeration under the new rule is restricted, limited
and exclusive, following the rule in statutory
construction that expressio unios est exclusio
alterius. Had the Rules of Court Revision Committee
intended to liberalize the rule on service of summons,
we said, it could have easily done so by clear and
concise language. Absent a manifest intent to liberalize
the rule, we stressed strict compliance with Section
11, Rule 14 of the 1997 Rules of Civil Procedure.
Doctrine of substantial compliance must be deemed
overturned by Villarosa, which is the later case.
The service of summons is a vital and indispensable
ingredient of due process.—At this juncture, it is worth
emphasizing that notice to enable the other party to be
heard and to present evidence is not a mere
technicality or a trivial matter in any administrative or
judicial proceedings. The service of summons is a vital
and indispensable ingredient of due process. We will
deprive private respondent of its right to present its
defense in this multi-million peso suit, if we disregard
compliance with the rules on service of summons.
Bank of the Philippine Islands vs.
Santiago
G.R. No. 169116. March 28, 2007.*
Service of summons on a bank’s Branch Manager did
not bind the corporation for the branch manager is not
included in the enumeration of the statute of the
persons upon whom service of summons can be validly
made in behalf of the corporation, but whatever defect
that attended the service of the original summons was
cured by the issuance and the proper service of new
summons.—Basic is the rule that a strict compliance
with the mode of service is necessary to confer
jurisdiction of the court over a corporation. The officer
upon whom service is made must be one who is
named in the statute; otherwise, the service is
insufficient. The purpose is to render it reasonably
certain that the corporation will receive prompt and
proper notice in an action against it or to insure that
the summons be served on a representative so
integrated with the corporation that such person will
know what to do with the legal papers served on him.
Applying the aforestated principle in the case at bar,
we rule that the service of summons on BPI’s Branch
Manager did not bind the corporation for the branch
manager is not included in the enumeration of the
statute of the persons upon whom service of summons
can be validly made in behalf of the corporation. Such
service is therefore void and ineffectual.
However, upon the issuance and the proper service of
new summons on 11 March 2003, before the Writ of
Preliminary Injunction was issued on 20 March
2003, whatever defect attended the service of the
original summons, was promptly and accordingly cured.
The ultimate test on the validity and sufficiency on
service of summons is whether the same and the
attachments thereto were ultimately received by the
corporation under such circumstances that no undue
prejudice is sustained by it from the procedural lapse
and it was afforded full opportunity to present its
responsive pleadings; There is no hard and fast rule
pertaining to the manner of service of summons—
substantial justice demands that every case should be
viewed in light of the peculiar circumstances attendant
to each.
Ellice Agro-Industrial Corporation
vs. Young
G.R. No. 174077. November 21, 2012.
Jurisdiction over the defendant is acquired either upon a
valid service of summons or the defendant’s voluntary
appearance in court; The purpose of summons is not
only to acquire jurisdiction over the person of the
defendant, but also to give notice to the defendant that
an action has been commenced against it and to afford
it an opportunity to be heard on the claim made against
it.―It is a settled rule that jurisdiction over the
defendant is acquired either upon a valid service of
summons or the defendant’s voluntary appearance in
court. When the defendant does not voluntarily submit
to the court’s jurisdiction or when there is no valid
service of summons, any judgment of the court which
has no jurisdiction over the person of the defendant is
null and void. The purpose of summons is not only to
acquire jurisdiction over the person of the defendant,
but also to give notice to the defendant that an action
has been commenced against it and to afford it an
opportunity to be heard on the claim made against it.
The requirements of the rule on summons must be
strictly followed, otherwise, the trial court will not
acquire jurisdiction over the defendant.
or service of summons upon a private domestic
corporation to be effective and valid, should be made on
the persons enumerated in the rule. Conversely, service
of summons on anyone other than the president,
manager, secretary, cashier, agent, or director, is not
valid.―Section 13, Rule 14 of the 1964 Rules of Civil
Procedure, the applicable rule on service of summons
upon a private domestic corporation then, provides:
Sec. 13. Service upon private domestic corporation or
partnership.―If the defendant is a corporation
organized under the laws of the Philippines or a
partnership duly registered, service may be made on
the president, manager, secretary, cashier, agent, or
any of its directors. [Underscoring supplied] Based on
the above-quoted provision, for service of summons
upon a private domestic corporation, to be effective
and valid, should be made on the persons enumerated
in the rule. Conversely, service of summons on anyone
other than the president, manager, secretary, cashier,
agent, or director, is not valid. The purpose is to
render it reasonably certain that the corporation will
receive prompt and proper notice in an action against
it or to insure that the summons be served on a
representative so integrated with the corporation that
such person will know what to do with the legal
papers served on him.
Jurisdiction of the court over the person of the
defendant or respondent cannot be acquired
notwithstanding his knowledge of the pendency of a
case against him unless he was validly served with
summons.―Granting arguendo that EAIC had actual
knowledge of the existence of Civil Case No. 96-177
lodged against it, the RTC still failed to validly acquire
jurisdiction over EAIC. In Cesar v. Ricafort-Bautista,
506 SCRA 322 (2006), it was held that “x x x
jurisdiction of the court over the person of the
defendant or respondent cannot be acquired
notwithstanding his knowledge of the pendency of a
case against him unless he was validly served with
summons. Such is the important role a valid service of
summons plays in court actions.”
Republic vs. Domingo
G.R. No. 1752299. September 14, 2011.
Summons is a writ by which the defendant is notified of
the action brought against him; Jurisdiction over the
person of the defendant is acquired through coercive
process.—Summons is a writ by which the defendant is
notified of the action brought against him. Service of
such writ is the means by which the court acquires
jurisdiction over his person. Jurisdiction over the
person of the defendant is acquired through coercive
process, generally by the service of summons issued
by the court, or through the defendant’s voluntary
appearance or submission to the court
When a suit is directed against an unincorporated
government agency, which, because it is
unincorporated, possesses no juridical personality of its
own, the suit is against the agency’s principal, i.e., the
State.—Jurisprudence further instructs that when a
suit is directed against an unincorporated government
agency, which, because it is unincorporated, possesses
no juridical personality of its own, the suit is against
the agency’s principal, i.e., the Stat
The Department of Public Works and Highways
(DPWH) and its regional office are merely the agents of
the former (the Republic), which is the real party in
interest in Civil Case No. 333-M-2002; The summons in
this case should have been served on the Office of the
Solicitor General (OSG).
It is the duty of the plaintiff to implead all the necessary
or indispensable parties for the complete determination
of the action.—On the other hand, Domingo opines
that the DPWH Region III apparently neglected to
inform the OSG of the pendency of Civil Case No. 333-
M-2002. Accordingly, Domingo asserted that he should
not be faulted therefor. The Court disagrees. Domingo
ought to bear in mind that it is the duty of the plaintiff
to implead all the necessary or indispensable parties
for the complete determination of the action. It was,
thus, incumbent upon him to name and implead the
proper defendant in this case, i.e., the Republic, and
cause the service of summons to be made upon the
officer mandated by law, that is, the OSG. As Domingo
failed to discharge this burden, he cannot now be
allowed to shift the blame on the DPWH Region III or
hold in estoppel the OSG.
Pantaleon vs. Asuncion
No. L-131141. May 22, 1959.
JURISDICTION OVER DEFENDANT, How Acquired.—In
an action strictly in personam, like the case at
bar, personal service of summons, within the forum, is
essential to the acquisition of jurisdiction over the
person of the defendant, who does not voluntarily
submit himself to the authority of the court. Summons
by publication cannot confer upon the court
jurisdiction over said defendant.
Asiavest Limited vs. CA
G.R. No. 128803. September 25, 1998
In an action in personam, jurisdiction over the person of
the defendant is necessary for the court to validly try
and decide the case.—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; (2) personal
service outside the country, with leave of court; (3)
service by publication, also with leave of court; or (4)
any other manner the court may deem sufficient.
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.—In an action in
personam wherein the defendant is a nonresident 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. 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. An
exception was laid down in Gemperle v.
Schenker wherein a non-resident was served with
summons through his wife, who was a resident of the
Philippines and who was his representative and
attorney-in-fact in a prior civil case filed by him;
moreover, the second case was a mere offshoot of the
first case.
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.—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. 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.
Romualdez-Licaros vs. Licaros
G.R. No. 150656. April 29, 2003.
Instance When Extraterritorial Service of Summons
Allowed.—At the time Abelardo filed the petition for
nullity of the marriage in 1991, Margarita was residing
in the United States. She left the Philippines in 1982
together with her two children. The trial court
considered Margarita a non-resident defendant who is
not found in the Philippines. Since the petition affects
the personal status of the plaintiff, the trial court
authorized extraterritorial service of summons under
Section 15, Rule 14 of the Rules of Court. The term
“personal status” includes family relations,
particularly the relations between husband and wife.
Valmonte vs. Court of Appeals
G.R. No. 108538. January 22, 1996.*
A resident defendant in an action in personam who
cannot be personally served with summons may be
summoned either by means of substituted service in
accordance with Rule 14, §8 or by publication as
provided in §§17 and 18 of the same Rule.—In an action
in personam, personal service of summons or, if this is
not possible and he cannot be personally served,
substituted service, as provided in Rule 14, §§7-8 is
essential for the acquisition by the court of jurisdiction
over the person of a defendant who does not
voluntarily submit himself to the authority of the
court. If defendant cannot be served with summons
because he is temporarily abroad, but otherwise he is
a Philippine resident, service of summons may, by
leave of court, be made by publication. Otherwise
stated, a resident defendant in an action in personam,
who cannot be personally served with summons, may
be summoned either by means of substituted service
in accordance with Rule 14, §8 or by publication as
provided in §§ 17 and 18 of the same Rule.
Service of summons upon a nonresident who is not
found in the Philippines must be made either (1) by
personal service; (2) by publication in a newspaper of
general circulation; or (3) in any other manner which
the court may deem sufficient.—As petitioner Lourdes
A. Valmonte is a nonresident who is not found in the
Philippines, service of summons on her must be in
accordance with Rule 14, §17. Such service, to be
effective outside the Philippines, must be made either
(1) by personal service; (2) by publication in a
newspaper of general circulation in such places and
for such time as the court may order, in which case a
copy of the summons and order of the court should be
sent by registered mail to the last known address of
the defendant; or (3) in any other manner which the
court may deem sufficient.
The three modes of service of summons upon a
nonresident must be made outside the Philippines, such
as through the Philippine Embassy in the foreign
country where the defendant resides.—Since in the case
at bar, the service of summons upon petitioner
Lourdes A. Valmonte was not done by means of any of
the first two modes, the question is whether the
service on her attorney, petitioner Alfredo D.
Valmonte, can be justified under the third mode,
namely, “in any . . . manner the court may deem
sufficient.” We hold it cannot. This mode of service,
like the first two, must be made outside the
Philippines, such as through the Philippine Embassy in
the foreign country where the defendant resides.
The period to file an Answer in an action against a
resident defendant differs from the period given in an
action filed against a nonresident defendant who is not
found in the Philippines.- It must be noted that the
period to file an Answer in an action against a resident
defendant differs from the period given in an action
filed against a nonresident defendant who is not found
in the Philippines. In the former, the period is fifteen
(15) days from service of summons, while in the latter,
it is at least sixty (60) days from notice.
Gemperle vs. Schenker, et al.
No. L-18164. January 23, 1967.
Acquisition of jurisdiction upon nonresident defendant
through service of summons upon attorneyin-fact.—
Where a Swiss citizen, residing in Switzerland, was
served with summons through his wife, who was
residing here and who was his representative and
attorney-in-fact in a prior civil case, which was
apparently filed, in the Rizal Court of First Instance, at
her behest in her aforementioned capacity, the lower
court acquired jurisdiction over the nonresident
husband by means of the said service of summons. As
the wife had authority to sue, and had actually sued in
behalf of her nonresident husband, so she was also
empowered to represent him in suits filed against him,
particularly in a case which is a consequence of the
action brought by her in his behalf.
Arcenas vs. Court of Appeals
G.R. No. 130401. December 4, 1998.*
How summons effected where defendant is temporarily
out of the country or does not reside and is not found in
the Philippines.—If the defendant is temporarily out of
the country, summons may, by leave of court, be
effected outside of the Philippines by substituted
service or by publication. However, if the defendant
does not reside and is not found in the Philippines,
summons may be effected, by leave of court, by
personal service or by publication; or other sufficient
manner as determined by the court, provided that the
action affects the personal status of the plaintiff
residing in the Philippines; or when the action relates
to, or the subject of which involves property within the
Philippines, in which the defendant has or claims a lien
or interest, actual or contingent; or when the relief
demanded on such action consists, wholly or in part, in
excluding the defendant from any interest in property
located in the Philippines; or when the non-resident
defendant’s property has been attached within the
Philippines.
Summons upon petitioner permanently residing abroad
should be served on him personally where action is in
personam.—Petitioner is no longer residing and found
in the Philippines. He left for the United States in June
of 1993 as evidenced by the Sheriff’s Return. Hence,
summons may be served on him either personally or
by publication. However, since the complaint filed
against him is one in personam (a personal action) and
does not involve the personal status of the private
respondent, nor any property in the Philippines in
which petitioner has or claim or an interest, or which
the private respondent has attached, summons should
be served on him personally. The deputy sheriff can
not serve the summons by substituted service.
Having failed to serve the summons on the person of the
petitioner, the Regional Trial Court did not validly
acquire jurisdiction over him.—Having failed to serve
the summons on the person of the petitioner, the
Regional Trial Court did not validly acquire
jurisdiction over him. Consequently, the proceedings
held is null and void.
Montalban vs. Maximo
No. L-22997. March 15, 1968.
Service of summons by substituted service upon resident
temporarily absent from the Philippines, valid.—
Summons in a suit in personam against a resident of
the Philippines temporarily absent therefrom may be
validly effected by substituted service under Sec. 8,
Rule 14 of the Rules of Court.
Lack of actual notice does not affect validity of
service.—It is immaterial that defendant does not in
fact receive actual notice. This will not affect the
validity of the service. He may be charged by a
judgment in personam as a result of legal proceedings
upon a method of service which is not personal, which
in fact may not become actual notice to him. The rules
do not require that papers be served on defendant
personally or a showing that papers were delivered to
defendant by the person with whom they were left.
Extraterritorial service under Sec. 17, Rule 14, one of
modes of effective service.—The phraseology of the
Rule in sec. 18, Rule 14 of the Rules of Court is a
recognition of the fact that substituted service—out of
the Philippines—under sec. 17, Rule 14 is but one of
the modes of effective service to bring a defendant in
court. But the normal method of service of summons
on one temporarily absent from the Philippines is by
substituted service set forth in sec. 8, Rule 14 because
personal service outside the country and service by
publication are not ordinary means of summons.
Palma vs. Galvez
G.R. No. 165273. March 10, 2010
Methods of service of summons under Section 16 of Rule
14 is not mandatory; Modes of service of a resident
defendants in temporarily out of the Philippines.—
In Montefalcon v. Vasquez, 554 SCRA 513 (2008) we
said that because Section 16 of Rule 14 uses the words
“may” and “also,” it is not mandatory. Other methods
of service of summons allowed under the Rules may
also be availed of by the serving officer on a
defendant-resident who is temporarily out of the
Philippines. Thus, if a resident defendant is
temporarily out of the country, any of the following
modes of service may be resorted to: (1) substituted
service set forth in section 7 (formerly Section 8), Rule
14; (2) personal service outside the country, with
leave of court; (3) service by publication, also with
leave of court; or (4) in any other manner the court
may deem sufficient.
A dwelling house or residence refers to the place where
the person named in the summons is living at the time
when the service is made, even though he may be
temporarily out of the country at the time.—We have
held that a dwelling, house or residence refers to the
place where the person named in the summons is
living at the time when the service is made, even
though he may be temporarily out of the country at
the time. It is, thus, the service of the summons
intended for the defendant that must be left with the
person of suitable age and discretion residing in the
house of the defendant. Compliance with the rules
regarding the service of summons is as important as
the issue of due process as that of jurisdiction.
NM Rothschild & Sons Limited vs.
Lepanto Consolidated Mining
Company the Philippines belonging to the defendant, in which
case the action will be converted to one quasi in rem.—
G.R. No. 175799. November 28, 2011. The Complaint in the case at bar is an action to
declare the loan and Hedging Contracts between
the parties void with a prayer for damages. It is a
Summons; Extraterritorial Service; There are only four suit in which the plaintiff seeks to be freed from its
instances wherein a defendant who is a non-resident obligations to the defendant under a contract and to
and is not found in the country may be served with hold said defendant pecuniarily liable to the plaintiff
summons by extraterritorial service.—Breaking down for entering into such contract. It is therefore an
Section 15, Rule 14, it is apparent that there are only action in personam, unless and until the plaintiff
four instances wherein a defendant who is a non- attaches a property within the Philippines belonging
resident and is not found in the country may be served to the defendant, in which case the action will be
with summons by extraterritorial service, to wit: (1) converted to one quasi in rem.
when the action affects the personal status of the
plaintiffs; (2) when the action relates to, or the subject Seeking affirmative relief in a court is tantamount to
of which is property, within the Philippines, in which voluntary appearance therein.
the defendant claims a lien or an interest, actual or
contingent; (3) when the relief demanded in such
action consists, wholly or in part, in excluding the
defendant from any interest in property located in the
Philippines; and (4) when the defendant non-
resident’s property has been attached within the
Philippines. In these instances, 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.

Extraterritorial service of summons applies only where

the action is in rem or quasi in rem but not if an action
is in personam.—Proceeding from this enumeration,
we held in Perkin Elmer Singapore Pte Ltd. v. Dakila
Trading Corporation, 530 SCRA 170 (2007),
that: Undoubtedly, extraterritorial service of
summons applies only where the action is in
rem orquasi in rem, but not if an action
is in personam. When the case instituted is an
action in rem or quasi in rem, Philippine courts already
have jurisdiction to hear and decide the case because,
in actions in rem and 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.

Complaint in the case at bar is an action in personam,

unless and until the plaintiff attaches a property within
 Even assuming arguendo that a Rule 65 certiorari could
still be resorted to, Pag-ibig’s petition would still be
dismissed for having been filed beyond the
reglementary period of 60 days from notice of the denial
of the motion for reconsideration.—Moreover, even
assuming arguendo that a Rule 65 certiorari could still
be resorted to, Pag-ibig’s petition would still have to
be dismissed for having been filed beyond the
reglementary period of 60 days from notice of the
denial of the motion for reconsideration. Pag-ibig
admitted receiving the trial court’s Order denying its
Motion for Reconsideration on March 22, 2002; it thus
had until May 21, 2002 to file its petition for certiorari.
However, Pag-ibig filed its petition only on May 24,
2002, which was the 63rd day from its receipt of the
trial court’s order and obviously beyond the
reglementary 60-day period.
RULE 15: MOTIONS

Home Dev’t Mutual Fund (HDMF)

vs. Sps. See

G.R. 170292. June 22, 2011.

Certiorari is a limited form of review and is a remedy of

last recourse; Certiorari is not a substitute for a lost
appeal, especially if the party’s own negligence or error
in the choice of remedy occasioned such loss or lapse.—
“[C]ertiorari is a limited form of review and is a
remedy of last recourse.” It is proper only when appeal
is not available to the aggrieved party. In the case at
bar, the February 21, 2002 Decision of the trial court
was appealable under Rule 41 of the Rules of Court
because it completely disposed of respondent-
spouses’ case against Pag-ibig. Pag-ibig does not
explain why it did not resort to an appeal and allowed
the trial court’s decision to attain finality. In fact, the
February 21, 2002 Decision was already at the stage of
execution when Pag-ibig belatedly resorted to a Rule
65 Petition for Certiorari. Clearly, Pag-ibig lost its right
to appeal and tried to remedy the situation by
resorting to certiorari. It is settled, however,
that certiorari is not a substitute for a lost appeal,
“especially if the [party’s] own negligence or error in
[the] choice of remedy occasioned such loss or lapse.

RULE 16: MOTIONS TO DISMISS
Atty. Palmiano-Salvador vs.
Angeles
G.R. 171219. September 3, 2012.
If a complaint is filed for and in behalf of the plaintiff
[by one] who is not authorized to do so, the complaint is
not deemed filed; hence, the court should dismiss the
complaint on the ground that it has no jurisdiction over
the complaint and the plaintiff.—In Tamondong v.
Court of Appeals, 444 SCRA 509 (2004), the Court
categorically stated that “[i]f a complaint is filed for
and in behalf of the plaintiff [by one] who is not
authorized to do so, the complaint is not deemed filed.
An unauthorized complaint does not produce any legal
effect. Hence, the court should dismiss the complaint
on the ground that it has no jurisdiction over the
complaint and the plaintiff.
Aqualab Philippines vs. Heirs of
Marcelino Pagobo
G.R. No. 182673. Oct. 12, 2009
Hypothetical Admission of Factual Allegations
in the Complaint by Filing a Motion to Dismiss
In filing a motion to dismiss, the movant
hypothetically admits the truth of the material and
relevant facts alleged and pleaded in the complaint.
The court, in resolving the motion to dismiss, must
consider such hypothetical admission, the
documentary evidence presented during the hearing
thereof, and the relevant laws and jurisprudence
bearing on the issues or subject matter of the
complaint.
A motion to dismiss based on lack of cause of action
hypothetically admits the truth of the allegations in
the complaint. The allegations in a complaint are
sufficient to constitute a cause of action against the
defendants if, hypothetically admitting the facts
alleged, the court can render a valid judgment upon
the same in accordance with the prayer therein.
Indeed, to sustain a motion to dismiss for lack of cause
of action, the complaint must show that the claim for
relief does not exist rather than that a claim has been
defectively stated or is ambiguous, indefinite, or
uncertain.
Rasdas vs. Estenor
G.R. No. 157605. December 13, 2005.*
Under Section 6, Rule 16 of the 1997 Rules of Civil
Procedure, the allowance for a preliminary hearing,
while left in the discretion of the court, is authorized
only if no motion to dismiss has been filed but any of the
grounds for a motion to dismiss had been pleaded as
affirmative defense in the answer.—We observe at the
onset that it does appear that the RTC’s act of staging
preliminary hearing on the affirmative defense of lack
of jurisdiction and res judicata is not in regular order.
Under Section 6, Rule 16 of the 1997 Rules of Civil
Procedure, the allowance for a preliminary hearing,
while left in the discretion of the court, is authorized
only if no motion to dismiss has been filed but any of
the grounds for a motion to dismiss had been pleaded
as an affirmative defense in the answer. In this case,
respondents had filed a motion to dismiss on the
ground of res judicata, but the same was denied. They
thus filed an answer alleging res judicata as a special
affirmative defense, but later presented a Motion for
Preliminary Hearing which was granted, leading to the
dismissal of the case.

The general rule must be reiterated that the

preliminary hearing contemplated under Section 6, Rule
16 applies only if no motion to dismiss has been filed; An
exception was carved out in California and Hawaiian
Sugar Company v. Pioneer Insurance, 346 SCRA 214
(2000), wherein the Court noted that while Section 6
disallowed a preliminary hearing of affirmative
defenses once a motion to dismiss has been filed, such
hearing could nonetheless be had if the trial court had
not categorically resolved the motion to dismiss.—The
general rule must be reiterated that the preliminary
hearing contemplated under Section 6, Rule 16 applies
only if no motion to dismiss has been filed. This is
expressly provided under the rule, which relevantly
states “[i]f no motion to dismiss has been filed, any of
the grounds for dismissal provided for in [Rule 16]
may be pleaded as an affirmative defense in the
answer and, in the discretion of the court, a
preliminary hearing may be had thereon as if a motion
to dismiss had been filed.” An exception was carved
out in California and Hawaiian Sugar Company v.
Pioneer Insurance, wherein the Court noted that while
Section 6 disallowed a preliminary hearing of
affirmative defenses once a motion to dismiss has
been filed, such hearing could nonetheless be had if
the trial court had not categorically resolved the
motion to dismiss. Such circumstance does not obtain
in this case, since the trial court had already
categorically denied the motion to dismiss prior to the
filing of the answer and the motion for preliminary
hearing.
 Polanco vs. Cruz

G.R. No. 182426. February 13, 2009.

Pre-Trial; Even if the plaintiff fails to promptly move for

pre-trial without any justifiable cause for such delay, the
extreme sanction of dismissal of the complaint might
not be warranted if no substantial prejudice would be
caused to the defendant, and there are special and
compelling reasons which would make the strict
application of the rule clearly unjustified.—Section 1,
Rule 18 of the 1997 Rules of Civil Procedure imposes
upon the plaintiff the duty to promptly move ex
parte to have the case set for pre-trial after the last
pleading has been served and filed. Moreover, Section
3, Rule 17 provides that failure on the part of the
plaintiff to comply with said duty without any
justifiable cause may result to the dismissal of the
complaint for failure to prosecute his action for an
unreasonable length of time or failure to comply with
the rules of procedure. It must be stressed that even if
the plaintiff fails to promptly move for pre-trial
without any justifiable cause for such delay, the
extreme sanction of dismissal of the complaint might
not be warranted if no substantial prejudice would be
caused to the defendant, and there are special and
compelling reasons which would make the strict
application of the rule clearly unjustified.

Espiritu vs. Lazaro

G.R. No. 181020. November 25, 2009.

Plaintiff duty-bound to set the case for pre-trial after

the last pleading is served and filed; Failure to comply
with this duty makes the case susceptible to dismissal
for failure to prosecute for an unreasonable length of
time or failure to comply with the rules.—Section 1 of
Rule 18 of the Rules of Court imposes upon the
plaintiff the duty to set the case for pre-trial after the
last pleading is served and filed. Under Section 3 of
RULE 18: PRE-TRIAL Rule 17, failure to comply with the said duty makes
the case susceptible to dismissal for failure to
prosecute for an unreasonable length of time or failure
to comply with the rules
The sanction of dismissal may be imposed when absent
any allegation and proof of the plaintiff's lack of interest
to prosecute the action, or of any prejudice to the
defendant resulting from the failure of the plaintiff to
comply with the rules.—It bears stressing that the
sanction of dismissal may be imposed even absent any
allegation and proof of the plaintiff’s lack of interest to
prosecute the action, or of any prejudice to the
defendant resulting from the failure of the plaintiff to
comply with the rules. The failure of the plaintiff to
prosecute the action without any justifiable cause
within a reasonable period of time will give rise to the
presumption that he is no longer interested in
obtaining the relief prayed for.
Perfecto vs. Judge Desales-Esidera
A.M. No. RTJ-112258. June 20, 2012
While the petitioners have the responsibility to
move ex parte to have the case scheduled for
preliminary conference, the court (through the
branch clerk of court) has the duty to schedule the
case for pre-trial in the event that the petitioners
fail to file the motion. If the plaintiff fails to file
said motion within the given period, the Branch
COC shall issue a notice of pre-trial. The
respondent Judge should be conversant therewith.
Saguid vs. Court of Appeals
G.R. No. 150611. June 10, 2003.
The failure of the defendant to file a pre-trial brief shall
have the same effect as failure to appear at the pre-trial
i.e. the plaintiff may present his evidence ex parte and
the court shall render judgment on the basis thereof;
The remedy of the defendant is to file a motion for
reconsideration showing that his failure to file a pre-
trial brief was due to fraud, accident, mistake or
excusable neglect.—Under Section 6, Rule 18 of the
1997 Rules of Civil Procedure, the failure of the
defendant to file a pre-trial brief shall have the same
effect as failure to appear at the pre-trial, i.e., the
plaintiff may present his evidence ex parte and the
court shall render judgment on the basis thereof. The
remedy of the defendant is to file a motion for
reconsideration showing that his failure to file a pre-
trial brief was due to fraud, accident, mistake or
excusable neglect. The motion need not really stress
the fact that the defendant has a valid and meritorious
defense because his answer which contains his
defenses is already on record.
Pre-trial rules are not to be belittled or dismissed
because their non-observance may result in prejudice to
a party’s substantive rights.—If it were true that
petitioner did not understand the import of the April
23, 1997 order directing him to file a pre-trial brief, he
could have inquired from the court or filed a motion
for extension of time to file the brief. Instead, he
waited until May 26, 1997, or 14 days from his alleged
receipt of the April 23, 1997 order before he filed a
motion asking the court to excuse his failure to file a
brief. Pre-trial rules are not to be belittled or
dismissed because their non-observance may result in
prejudice to a party’s substantive rights. Like all rules,
they should be followed except only for the most
persuasive of reasons when they may be relaxed to
relieve a litigant of an injustice not commensurate
with the degree of his thoughtlessness in not
complying with the procedure prescribed.
Perkin Elmer Singapore Pte Ltd.
vs. Dakila Trading Corporation
G.R. No. 172242, August 14, 2007.
In order for the court to have authority to dispose of the
case on the merits, it must acquire jurisdiction over the
subject matter and the parties; Jurisdiction of the court
over the subject matter is conferred only by the
Constitution or by law.
Courts acquire jurisdiction over the plaintiffs upon the
filing of the complaint while jurisdiction over the
defendants in a civil case is acquired either through the
service of summons upon them in the manner required
by law or through their voluntary appearance in court
and their submission to its authority.—
The proper service of summons differs depending on the
nature of the civil case instituted by the plaintiff or
petitioner: whether it is in personam, in rem or quasi in
rem.
any case against him because of the impossibility of
acquiring jurisdiction over his person unless he
voluntarily appears in court.
What is required under Section 15, Rule 14 of the
Revised Rules of Civil Procedure is not a mere allegation
of the existence of personal property belonging to the
non-resident defendant within the Philippines but more
precisely that the non-resident defendant’s personal
property located within the Philippines must have been
actually attached.
A party who makes a special appearance in court for the
purpose of challenging the jurisdiction of the court
based on the invalidity of the service of summons cannot
be considered to have voluntarily submitted himself to
the jurisdiction of the court; Neither can the compulsory
counterclaim contained in petitioner’s Answer ad
cautelam be considered as voluntary appearance of
petitioner before the Regional Trial Court (RTC).

Even though the petitioner raised other grounds in its

Extraterritorial Service; Instances wherein a defendant
Motion to Dismiss aside from lack of jurisdiction over its
who is a non-resident and is not found in the country
person, the same is not tantamount to its voluntary
may be served with summons by extraterritorial service;
appearance or submission to the authority of the court a
In these instances, service of summons may be effected
quo; Ruling in De Midgely v. Ferandos, 64 SCRA 23
by (a) personal service out of the country, with leave of
(1975), deemed superseded by the declaration of the
court; (b) publication, also with leave of court; or (c)
Court in La Naval Drug Corporation v. Court of Appeals,
any other manner the court may deem sufficient;
236 SCRA 78 (1994), that estoppel by jurisdiction must
Extraterritorial service of summons applies only where
be unequivocal and intentional; The allegation of
the action is in rem or quasi in rem but not if an action
grounds other than lack of jurisdiction with a prayer
is in personam.
“for such other reliefs” as may be deemed “appropriate
and proper” cannot be considered as unequivocal and
intentional estoppel.
When the case instituted is an action in rem or quasi in
rem, Philippine courts already have jurisdiction to hear
and decide the case because, in actions in rem and quasi
When a Motion to Dismiss is grounded on the failure to
in rem, jurisdiction over the person of the defendant is
state a cause of action, a ruling thereon should be based
not a prerequisite to confer jurisdiction on the court
only on the facts alleged in the complaint.
provided that the court acquires jurisdiction over the
res; When the defendant or respondent does not reside The Regional Trial Court of the Philippines cannot be
and is not found in the Philippines and the action considered as an improper venue.—
involved is in personam, Philippine courts cannot try
The dismissal of a complaint due to fault of the plaintiff
is without prejudice to the right of the defendant to
prosecute any pending counterclaims of whatever
nature in the same or separate action.

RULE 19: INTERVENTION

PNB vs. Sps. Perez

PNB vs. Aznar
G.R. No. 187640. June 15, 2011.
G.R. No. 171805. May 30, 2011

The absence of the notice of pre-trial constitutes a

a corporation has a personality separate and distinct
violation of a person’s constitutional right to due
from those of its stockholders and other corporations
process.—In Pineda v. Court of Appeals, 67 SCRA 228
to which it may be connected. Thus, we had previously
(1975), the Court therein discussed the importance of
ruled in Magsaysay-Labrador v. Court of Appeals that
the notice of pre-trial. It pointed out that the absence
the interest of the stockholders over the properties of
of the notice of pre-trial constitutes a violation of a
the corporation is merely inchoate and therefore does
person’s constitutional right to due process. Further,
not entitle them to intervene in litigation involving
the Court ruled that all subsequent orders, including
corporate property.
the default judgment, are null and void and without
effect.

Heirs of Medrano vs. De vera

G.R. No. 165770. August 9, 2010

De Vera’s interest cannot be considered and tried

separatelyfrom the interest of the named defendants;
His rights were derived from the named defendants and,
as transferee pendent lite, he would be bound by any
judgment against his transferors under the rules of res
judicata.—The trial court’s approach is seriously
flawed because De Vera’s interest is not independent
of or severable from the interest of the named
defendants. De Vera is a transferee pendente lite of the
named defendants (by virtue of the Deed of
Renunciation of Rights that was executed in his favor
during the pendency of Civil Case No. U-7316). His
rights were derived from the named defendants and,
as transferee pendente lite, he would be bound by any
judgment against his transferors under the rules of res
judicata. Thus, De Vera’s interest cannot be considered
and tried separately from the interest of the named
defendants.
Section 19, Rule 3 of the Rules of Court gives the trial
court discretion to allow or disallow the substitution or
joinder by the transferee.—The above provision gives
the trial court discretion to allow or disallow the
substitution or joinder by the transferee. Discretion is
permitted because, in general, the transferee’s interest
is deemed by law as adequately represented and
protected by the participation of his transferors in the
case. There may be no need for the
transferee pendente lite to be substituted or joined in
the case because, in legal contemplation, he is not
really denied protection as his interest is one and the
same as his transferors, who are already parties to the
case.
A transferee pendente lite is deemed joined in the
pending action from the moment when the transfer of
interest is perfected.—In this case, De Vera is not a
stranger to the action but a transferee pendente lite. As
mentioned, a transferee pendente lite is deemed joined
in the pending action from the moment when the
transfer of interest is perfected. His participation in
the case should have been allowed by due process
considerations.
Board of Regents of Mindanao
State University vs. Osop
G.R. No. 172448. February 22, 2012
Jurisprudence describes intervention as “a remedy by
which a third party, not originally impleaded in the
proceedings, becomes a litigant therein to enable him,
her or it to protect or preserve a right or interest which
may be affected by such proceedings.”—Jurisprudence
describes intervention as “a remedy by which a third
party, not originally impleaded in the proceedings,
becomes a litigant therein to enable him, her or it to
protect or preserve a right or interest which may be
affected by such proceedings.” “The right to intervene
is not an absolute right; it may only be permitted by
the court when the movant establishes facts which
satisfy the requirements of the law authorizing it.”
While undoubtedly, MSU has a legal interest in the
outcome of the case, it may not avail itself of the
remedy of intervention in CA-G.R. SP No. 82052 simply
because MSU is not a third party in the proceedings
herein.
RULE 23: DEPOSITIONS PENDING ACTION
Dulay vs. Dulay
G.R. No. 158857. November 11, 2005.
Deposition is chiefly a mode of discovery, the primary
function of which is to supplement the pleadings for the
purpose of disclosing the real points of dispute between
the parties; A party’s right to avail himself of this
procedure is “well-nigh unrestricted” if the matters
inquired into are otherwise relevant and not privileged,
and the inquiry is made in good faith and within the
bounds of law.—Deposition is chiefly a mode of
discovery, the primary function of which is to
supplement the pleadings for the purpose of disclosing
the real points of dispute between the parties and
affording an adequate factual basis during the
preparation for trial. It may be taken with leave of
court after jurisdiction has been obtained over any
defendant or over property that is the subject of the
action; or, without such leave, after an answer has
been served. A party’s right to avail itself of this
procedure is “well-nigh unrestricted” if the matters
inquired into are otherwise relevant and not
privileged, and the inquiry is made in good faith and
within the bounds of the law. Nevertheless, the use of
discovery procedures is directed to the sound
discretion of the trial courts, which, in general, are
given wide latitude in granting motions for discovery
in order to enable the parties to prepare for trial or
otherwise to settle the controversy prior thereto.
While a foreign court has the authority to entertain a
discovery request, it is not required to provide judicial
assistance thereto.—While the letters rogatory issued
by the trial court specifically directed the Clerk of
Court of Boston to take the depositions needed in the
case, it became impossible to follow the directive since
the Clerk of Court of Boston merely brushed it aside
and refused to cooperate. Respondent cannot be
faulted for the resultant delay brought about by this
circumstance. Neither can the trial court be faulted for
allowing the admission of the depositions taken not in
strict adherence to its original directive, nor for
directing the petitioner to have the depositions
authenticated. Obviously, it was not within the trial
court’s power, much less the respondent’s to force the
Clerk of Court of Boston to have the deposition taken
before it. It would be illogical and unreasonable to
expect respondent to comply with the letters rogatory
without the cooperation of the very institution or
personality named in the letters rogatory and
requested to examine the witnesses. After all, while a
court had the authority to entertain a discovery
request, it is not required to provide judicial
assistance thereto. This reality was recognized by the
trial court when it ordered respondent to have the
questioned depositions authenticated by the
Philippine consulate. Indeed, refusing the allowance of
the depositions in issue would be going directly
against the purpose of taking the depositions in the
first place, that is, the disclosure of facts which are
relevant to the proceedings in court.
Letters Rogatory and Commissions; Words and
Phrases; While letters rogatory are requests to foreign
tribunals, commissions are directives to officials of the
issuing jurisdiction.—In our jurisdiction, depositions in
foreign countries may be taken: (a) on notice before a
secretary of embassy or legation, consul general,
consul, vice consul, or consular agent of the Republic
of the Philippines; (b) before such person or officer as
may be appointed by commission or under letters
rogatory; or (c) before any person authorized to
administer oaths as stipulated in writing by the
parties. While letters rogatory are requests to foreign
tribunals, commissions are directives to officials of the
issuing jurisdiction.
Commissions are taken in accordance with the
rules laid down by the court issuing the commission,
while in letters rogatory, the methods of procedure are
under the control of the foreign tribunal.—Generally, a
commission is an instrument issued by a court of
justice, or other competent tribunal, directed to a
magistrate by his official designation or to an
individual by name, authorizing him to take the
depositions of the witnesses named therein, while a
letter rogatory is a request to a foreign court to give its
aid, backed by its power, to secure desired
information. Commissions are taken in accordance
with the rules laid down by the court issuing the
commission, while in letters rogatory, the methods of
procedure are under the control of the foreign
tribunal.
Leave of court is not required when the deposition is to
be taken before a secretary of embassy or legation,
consul general, consul, vice-consul, or consular agent of
the Republic of the Philippines and the defendant’s
answer has already been served.—Leave of court is not
required when the deposition is to be taken before a
secretary of embassy or legation, consul general,
consul, vice-consul or consular agent of the Republic of
the Philippines and the defendant’s answer has
already been served. However, if the deposition is to
be taken in a foreign country where the Philippines
has no secretary of embassy or legation, consul
general, consul, vice-consul or consular agent, it may
be taken only before such person or officer as may be
appointed by commission or under letters rogatory.
In the instant case, the authentication made by the
Philippine consul in New York was a ratification of the
authority of the notary public who took the questioned
depositions.—In the instant case, the authentication
made by the consul was a ratification of the authority
of the notary public who took the questioned
depositions. The deposition was, in effect, obtained
through a commission, and no longer through letters
rogatory. It must be noted that this move was even
sanctioned by the trial court by virtue of its Order
dated 28 September 2000. With the ratification of the
depositions in issue, there is no more impediment to
their admissibility.
Sales vs. Sabino
G.R. No. 133154. December 9, 2005.
A deposition is not to be used when the deponent is at
hand; Five (5) Exceptions for the Admissibility of a
Deposition are Listed in Section 4, Rule 23 of the Rules of
Court.—While depositions may be used as evidence in
court proceedings, they are generally not meant to be
a substitute for the actual testimony in open court of a
party or witness. Stated a bit differently, a deposition
is not to be used when the deponent is at hand. Indeed,
any deposition offered during a trial to prove the facts
therein set out, in lieu of the actual oral testimony of
the deponent in open court, may be opposed and
excluded on the ground of hearsay. However,
depositions may be used without the deponent being
called to the witness stand by the proponent, provided
the existence of certain conditions is first satisfactorily
established. Five (5) exceptions for the admissibility of
a deposition are listed in Section 4, Rule 23, supra, of
the Rules of Court. Among these is when the witness is
out of the Philippines.
As a rule, the inadmissibility of testimony taken by
deposition is anchored on the ground that such
testimony is hearsay, i.e., the party against whom it is
offered has no opportunity to cross-examine the
deponent at the time his testimony is offered; The act of
cross-examining the deponent during the taking of the
deposition cannot, without more, be considered a
waiver of the right to object to its admissibility as
evidence in the trial proper.—As a rule, the
inadmissibility of testimony taken by deposition is
anchored on the ground that such testimony is
hearsay, i.e., the party against whom it is offered has
no opportunity to cross-examine the deponent at the
time his testimony is offered. But as jurisprudence
teaches, it matters not that opportunity for cross-
examination was afforded during the taking of the
deposition; for normally, the opportunity for cross-
examination must be accorded a party at the time the
testimonial evidence is actually presented against him
during the trial or hearing. In fine, the act of cross-
examining the deponent during the taking of the
deposition cannot, without more, be considered a
waiver of the right to object to its admissibility as
evidence in the trial proper. In participating, therefore,
in the taking of the deposition, but objecting to its
admissibility in court as evidence, petitioner did not
assume inconsistent positions. He is not, thus,
estopped from challenging the admissibility of the
deposition just because he participated in the taking
thereof.
Section 29, Rule 23 of the Rules of Court in gist provides
that while errors and irregularities in depositions as to
notice, qualifications of the officer conducting the
deposition and manner of taking the deposition are
deemed waived if not objected to before or during the
taking of the deposition, objections to the competency of
a witness or the competency, relevancy or materiality of
testimony may be made for the first time at the trial and
need not be made at the time of the taking of the
deposition, unless they could be obviated at that
point.—Lest it be overlooked, Section 29, Rule 23 of
the Rules of Court, no less, lends support to the
conclusion just made. In gist, it provides that, while
errors and irregularities in depositions as to notice,
qualifications of the officer conducting the deposition,
and manner of taking the deposition are deemed
waived if not objected to before or during the taking of
the deposition, objections to the competency of a
witness or the competency, relevancy, or materiality of
testimony may be made for the first time at the trial
and need not be made at the time of the taking of the
deposition, unless they could be obviated at that point.
Republic vs. Sandiganbayan
G.R. No. 152375. December 13, 2011
Deposition; Before a party can make use of the
deposition taken at the trial of a pending action, Section
4, Rule 23 of the Rules of Court does not only require due
observance of its sub-paragraphs (a) to (d), it also
requires as a condition for admissibility, compliance
with “the rules on evidence.”—Before a party can
make use of the deposition taken at the trial of a
pending action, Section 4, Rule 23 of the Rules of Court
does not only require due observance of its sub-
paragraphs (a) to (d); it also requires, as a condition
for admissibility, compliance with “the rules on
evidence.” Thus, even Section 4, Rule 23 of the Rules of
Court makes an implied reference to Section 47, Rule
130 of the Rules of Court before the deposition may
be used in evidence. By reading Rule 23 in isolation,
the petitioner failed to recognize that the principle
conceding admissibility to a deposition under Rule 23
should be consistent with the rules on evidence under
Section 47, Rule 130. In determining the admissibility
of the Bane deposition, therefore, reliance cannot be
given on one provision to the exclusion of the
other; both provisions must be considered. This is
particularly true in this case where the evidence in the
prior proceeding does not simply refer to a witness’
testimony in open court but to a deposition taken
under another and farther jurisdiction.
Depositions are not meant as substitute for the actual
testimony in open court of a party or witness.—A
deposition is chiefly a mode of discovery whose
primary function is to supplement the pleadings for
the purpose of disclosing the real points of dispute
between the parties and affording an adequate factual
basis during the preparation for trial. Since
depositions are principally made available to the
parties as a means of informing themselves of all the
relevant facts, depositions are not meant as
substitute for the actual testimony in open court of
a party or witness. Generally, the deponent must be
presented for oral examination in open court at the
trial or hearing. This is a requirement of the rules on
evidence under Section 1, Rule 132 of the Rules of
Court.
Under certain conditions and for certain limited
purposes laid down in Section 4, Rule 23 of the Rules of
Court, the deposition may be used without the deponent
being actually called to the witness stand.—That
opportunity for cross-examination was afforded
during the taking of the deposition alone is no
argument, as the opportunity for cross-
examination must normally be accorded a party at
the time that the testimonial evidence is
actually presented against him during the trial or
hearing of a case. However, under certain conditions
and for certain limited purposes laid down in Section
4, Rule 23 of the Rules of Court, the deposition may be
used without the deponent being actually called to the
witness stand.
Section 47, Rule 130 explicitly requires inter alia, for the
admissibility of a former testimony or deposition that
the adverse party must have had an opportunity to
cross-examine the witness or the deponent in the prior
proceeding.—Section 47, Rule 130 of the Rules of
Court is an entirely different provision. While
a former testimony or deposition appears under
the Exceptions to the Hearsay Rule, the classification
of former testimony or deposition as an admissible
hearsay is not universally conceded. A fundamental
characteristic of hearsay evidence is the adverse
party’s lack of opportunity to cross-examine the out-
of-court declarant. However, Section 47, Rule 130
explicitly requires, inter alia, for the admissibility of
a former testimony or deposition that the adverse party
must have had an opportunity to cross-examine the
witness or the deponent in the prior proceeding.
Requisites for the admission of a testimony or deposition
given at a former case or proceeding.—Section 47, Rule
130 of the Rules of Court lays down the following
requisites for theadmission of a testimony or
deposition given at a former case or proceeding. 1. The
testimony or deposition of a witness deceased or
otherwise unable to testify; 2. The testimony was
given in a former case or proceeding, judicial or
administrative; 3. Involving the same parties; 4.
Relating to the same matter; 5. The adverse party
having had the opportunity to cross-examine him.
The phrase “unable to testify” appearing in both Rule 23
and Rule 130 of the Rules of Court refers to a physical
inability to appear at the witness stand and to give a
testimony; Where the deposition is taken not for
discovery purposes, but to accommodate the deponent,
then the deposition should be rejected in evidence.—The
phrase “unable to testify” appearing in both Rule 23
and Rule 130 of the Rules of Court refers to a physical
inability to appear at the witness stand and to give a
testimony. Hence notwithstanding the deletion of the
phrase “out of the Philippines,” which previously
appeared in Section 47, Rule 130 of the Rules of
Court, absence from jurisdiction—the petitioner’s
excuse for the non-presentation of Bane in open
court—may still constitute inability to testify under
the same rule. This is not to say, however, that resort
to deposition on this instance of unavailability will
always be upheld. Where the deposition is taken not
for discovery purposes, but to accommodate the
deponent, then the deposition should be rejected
in evidence

The witness himself, if available, must be produced in

court as if he were testifying de novo since his testimony
given at the former trial is mere hearsay.—Although
the testimony of a witness has been given in the
course of a former proceeding between the parties to a
case on trial, this testimony alone is not a ground for
its admission in evidence. The witness himself, if
available, must be produced in court as if he were
testifying de novo since his testimony given at the
former trial is mere hearsay. The deposition of a
witness, otherwise available, is also inadmissible for
the same reason.