Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-26464
April 2, 1927
IGNACIA ECHEVARRIA, VDA. DE ZUBELDIA, in her own behalf and as guardian of the
minors, Leonor Maria and Ricardo Zubeldia, plaintiff-appellant,
vs.
PARSONS HARDWARE CO., INC., ET AL., defendants-appellees.
----------------------------G.R. No. L-28335
January 20, 1928
IGNACIA ECHEVARRIA, VDA. DE ZUBELDIA, in her own behalf and as guardian of the
minors, Leonor, Maria and Ricardo Zubeldia, plaintiff-appellant,
vs.
PARSONS HARDWARE CO., INC., ET AL., defendants-appellees.
Ambrosio A. Calleja for appellant.
Crossfield & O'Brien and Isidro Santiago for Parsons Hardware Co.
No appearance for other appellees.
ROMUALDEZ, J.:
The question involved in this appeal is whether or not the order of the Court of First Instance
of Albay, sustaining the demurrer to the complaint and ordering the dismissal of the action is
erroneous.
For a better understanding of the controversy, we are quoting herein the complaint that was
dismissed, which had been presented on December 10, 1925 and which is as follows:
Comes now the undersigned attorney in the name and in behalf of the plaintiff in her
individual capacity and as guardian of the above-mentioned minors, and to the court
respectfully shows:
1. That the plaintiff is of age, a resident of the municipality of Tobacco, Province of Albay, P.
I., and for some years a temporary resident of the municipality of San Sebastian, Province of
Guipuzcoa, Spain, being the judicial guardian of the minors Leonor, Maria and Ricardo,
surnamed Zubeldia y Echevarria, duly appointed by the local competent court in special
proceeding No. 1611 of the Court of First Instance of Albay in the matter of the guardianship
of the Zubeldia y Echevarria minors, and the defendant Parsons Hardware Co., Inc., is a
corporation duly organized and registered under the laws of the Philippine Islands, with its
main office in the City of Manila, and the defendants Ignacio Zubeldia and Simeon Loria, are
both of age, the former being a resident of the municipality of Tabaco and the latter of the
municipality of Albay, Province of Albay, P. I.
2. That on May 20, 1925, the herein defendant Parsons Hardware Co., Inc., filed a complaint
against the herein plaintiff in her capacity as guardian of the heirs of S. Zubeldia for the
collection of the sum of P6,167.39, which complaint was registered under No. 28115 of the
Court of First Instance of Manila, copy of which, marked Exhibit A, is attached hereto and
made an integral part hereof.
3. That the herein plaintiff was not summoned in said case, it being only the defendant
Ignacio Zubeldia who was summoned according to the information and belief and that said
defendant Ignacio Zubeldia was not then nor at any time thereafter authorized to appear and
represent the herein plaintiff in any court of justice either in her individual capacity or as
guardian of the above-mentioned minors, which office is strictly personal and intransferable.

4. That the trial of said case was held by default, without the presence of the herein plaintiff
nor of any attorney to represent her and defend her rights and interests in her individual
capacity and as guardian of the Zubeldia y Echevarria minors.
5. That on July 29, 1923, the Court of First Instance of Manila rendered judgment in said
case ordering the herein plaintiff to pay the Parsons Hardware Co., Inc., the sum of
P6,167.39, plus interest at the rate of 10 per cent per annum from April 1, 1925 until fully
paid, and the costs of the action, copy of which judgment, marked Exhibit B is attached
hereto and made an integral part hereof.
6. That the plaintiff has been deprived of the opportunity to appear and defend herself in said
case in accordance with law, either personally or through an attorney and to set up her
defense or defenses against the action brought by Parsons Hardware Co., Inc., to wit: That
the alleged debt, the subject matter of the complaint No. 28115 of the Court of First Instance
of Manila, was not contracted by the herein plaintiff who did not even any knowledge of its
existence. (b) That supposing, without admitting, that the herein plaintiff had contracted said
debt, which she has not, nevertheless, she was not authorized by the proper court to
contract the same as guardian of the minors, and, therefore, neither they, nor their property,
can be held liable for contracts entered into by her as guardian which are not absolutely
necessary for the welfare of her wards or the conservation of their property, without the
authorization or approval of the competent court. (c) That the acts and contracts entered into
by a third party, such as the defendant Ignacio Zubeldia, claiming to represent, or that he
represented the minors, does not bind them nor affect their rights and interests and that only
he and his property are liable.
7. That pursuant to the writ of execution issued upon the judgment rendered in said case,
the defendant Simeon Loria, in his capacity as [provincial sheriff of Albay, on November 14,
1925 attached all of the stock of the business of the herein plaintiff in her own right, Ignacio
Zubeldia, Salustiano Zubeldia, jr., and the minors, Leonor, Maria and Ricardo Zubeldia y
Echavarria, undivided up to this time, one-half belonging to the herein plaintiff in her own
right and the other half, in equal parts, to the other heirs of the deceased Salustiano
Zubeldia, located in the municipality of Tabaco, Province of Albay, P. I., and valued at
P18,000, in order to sell it at public auction to satisfy the amount of said judgment; and on
November 17, 1925, the said defendant Simeon Loria also attached the rent of a store
belonging, pro indiviso, in the same proportion, to the same persons already mentioned,
situated in the municipality of Tabaco, Province of Albay. P. I., at the rate of P200 a month,
for the purpose of applying it also to the payment of the amount of said judgment.
8. That by these unlawful acts committed by the defendants, the plaintiff has suffered
damages in the sum of P18,000, the amount of the stock of the business, plus the additional
sum of P5,000 for having closed said business, not being able to operate it until this case is
finally determined or, for a year approximately, at the rate of P400 a month, plus P200 a
month for the rent of the store until the termination of this case.
In view of the foregoing, counsel respectfully prays this Honorable Court the judgment be
rendered in favor of the herein plaintiff, declaring null and void the decision rendered by the
Court of First Instance of Manila in favor of Parsons Hardware Co., Inc., on July 29, 1925 in
case No. 28115 of said court. It is likewise prayed that supposing, although it is not true, that
the herein plaintiff was in default, it be declared that it is a well-settled American rule that the
property of the ward cannot be affected by any default, consent, admission or confession of
the guardian, and it be ordered, therefore, in case the judgment rendered by the Court of
First Instance of Manila in case No. 28115 not totally annulled, that the property of the
minors Leonor, Maria and Ricardo Zubeldia y echevarria be respected, against whom the

judgment cannot and must not be binding, the plaintiff being the only one liable, in any event,
in her individual capacity and not as guardian of said minors. If is, further that the herein
defendant, Parsons Hardware Co., Inc., be ordered to pay the herein plaintiff the sum of
P23,000 by way of damages, plus P200 per month from November 17, 1925, until the final
determination of this case, as rent of the store attached, with costs of this instance. Counsel
also prays for such other remedy as may be just and equitable.
The documents made a part of the complaint (paragraphs 2 and 5) are as follows:
<
EXHIBIT A
UNITED STATES OF AMERICA
PHILIPPINE ISLANDS
IN THE COURT OF FIRST INSTANCE OF MANILA
No. 28115
PARSONS HARDWARE CO., INC., plaintiff,
VERSUS
IGNACIA ECHEVARRIA, as guardian of the
heirs of S. Zubeldia, doing business
under the name of HEIRS OF ZUBELDIA,
defendants.
COMPLAINT
Comes now Parsons Hardware Co., Inc., through the undersigned attorneys and, as cause
of action against the Heirs of S. Zubeldia, to the court shows:
1. That the plaintiff is a corporation duly incorporated and registered in accordance with the
laws of the Philippine Islands, with its main office in the City of Manila, and the defendant, of
legal age, resident of Tabaco, Albay, and duly appointed guardian by the Court of First
Instance of said province of the heirs of S. Zubeldia.
2. That the defendant as guardian of the heirs of S. Zubeldia, and doing business under the
name of Heirs of S. Zubeldia, from the month of January to March 31 of the present year,
bought and received from the plaintiff, goods and merchandise to their entire satisfaction,
amounting to the sum of P6,167.39, Philippine currency, to be paid for within thirty days after
the receipt thereof, otherwise interest will be charged on said sum at the rate of 10 per cent
per annum.
3. That demand was made by the plaintiff, as well as by its attorney upon the defendant at
various times of pay the said sum of P6,167.39 but up to the date of the filing of this
complaint said defendant has not paid the whole nor any part thereof.
Wherefore, the plaintiff respectfully prays this Honorable Court that judgment be rendered in
its favor and against the defendant for the sum of P6,167.39; interest on this amount at the
rate of 10 per cent per annum from March 31st of the present year until fully paid, with the
costs of this action. The plaintiff also prays for such other remedy as may be just equitable.
Manila, P. I., May 20, 1925.
CROSSFILED & O'BRIEN
By I. SANTIAGO
Attorneys for Parsons Hardware Co.
39 escolta, Manila
EXHIBIT B
UNITED STATES OF AMERICA
PHILIPPINE ISLANDS
COURT OF FIRST INSTANCE OF MANILA

JUDGEMENT
Civil Case No. 28115
PARSONS HARDWARE CO., INC.,
plaintiff
VERSUS
IGNACIA ECHEVARRIA, ETC.,
defendants.
This court having regularly acquired jurisdiction for the trial of the above-entitled cause
submitted by both parties for decision, after consideration thereof by the court upon the
record, its decision and order for judgment having been filed on the 29th day of July, A. D.
1925. By virtue of said decision and order, it is hereby decreed that:
The defendant Ignacia Echevarria, as guardian of the heirs of S. Zubeldia and doing
business under the name of Heirs of S. Zubeldia, is ordered to pay the plaintiff the sum of
P6,167.39 the value of the goods received, plus interest from March 31, 1925; she is
likewise ordered to pay the plaintiff interest at the rate of 10 per cent per annum of the sum
of P6,120.59 from April 1st of this year until fully paid, with costs of this action.
Messrs: Crossfield & O'Brien
Ignacia Echevarria, Tabaco, Albay
(Copy of this judgment was sent to the defendant by registered mail this day of July,
1925.)
RICARDO SUMMERS
Clerk of the Court of First Instance of Manila
By FELIPE N. CONCEPCION
"Deputy"
The ground of the demurrer filed by the defendant corporation to the complaint is the lack of
jurisdiction of that court over the subject matter in litigation.
Did the Court of First Instance of Albay really have jurisdiction or did it not?
If, as alleged in paragraph 3 of the complaint above quoted, the herein plaintiff had not been
summoned in said case which resulted in judgment being rendered against her, the court of
Manila which tried the case had not acquired jurisdiction over her person and therefore said
judgment, so far as it affects her, is null and void.
(S 835) b. Want of Jurisdiction of Person. Where the court undertaking to try an action
and render judgment never acquired jurisdiction of the person of defendant, the judgment is
entirely void, and may be so held in a collateral proceeding, unless defendant, by
appearance, in the action, has waived the original want of jurisdiction.
(S 836) c. Want of Process or Service. In a personal action the issuance of process and
the service thereof upon defendant is necessary to confer jurisdiction upon the court, and if
no process is issued, or if service is not made on defendant, the judgment will be void and
subject to collateral attack, unless service is waived by voluntary appearance or otherwise.
(34 C. J., 532, 533.)
In this jurisdiction, however, it is a well-settled rule that all petitions for the reinstatement of
cases after final judgment has been entered must be presented under the provisions of
section 113 or 513 of the Code of Civil Procedure, as the case may be, except those cases
where judgment was rendered without jurisdiction and when such a fact appears in the
"Book of Final Records" provided in section 387 of the Code of Civil Procedure. (Anuran vs.
Aquino and Ortiz., 38 Phil., 29.)
Now, the action brought by the herein plaintiff is an ordinary civil action wherein she prays
the judgment be rendered in her favor for the sum of P23,000 as damages, and P200

monthly as rent, with the costs. This is not a mere equity proceeding under section 113 or
513 of the Code of Civil Procedure, the purpose of which in the case of section 113
aforecited is only to free one-self of the compliance with an order or judgment, and in the
case of section 513, the holding of a new trial. Besides, under the first section referred to the
remedy must be applied for in the same court that rendered the judgment, and under the
second, the petition must be presented to the Supreme Court.
According, then, to the rule laid down in the said case of Anuran vs. Aquino and Ortiz, supra,
if the plaintiff preferred to commence an ordinary civil action instead of taking advantage of
the benefits of section 113 of the Code of Civil Procedure, she ought to allege in her
complaint, if the facts justify it, that the lack of jurisdiction of the court which rendered the
judgment challenged by her appears in the "Book of Final Records" mentioned in section
387 of the Code of Civil Procedure.
Not having done so the demurrer filed must be sustained; but as it might happen that the
aforesaid lack of jurisdiction may appear in the proper "Book of Final Records," or in the
record of the case, or in the records of dockets of the court concerned, there exists,
therefore, the possibility of the complaint being amended, and it is but just that the plaintiff be
given an opportunity to make said amendment if the same is justified by the actual facts.
In regard to the motion filed by the plaintiff's attorney which is found on folio 20 in the file of
this cause, we are of the opinion that the circumstances of the case require no action by this
court.
For the foregoing, the order appealed from is modified by setting the dismissal ordered and
sustaining the demurrer filed by the defendant corporation, with permission to the plaintiff to
amend her complaint in harmony with the above resolution within thirty days from the date of
the notification of this decision. Without any special pronouncement as to costs. So ordered.
Johnson, Villamor, Ostrand and Villa-Real, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
It is perfectly clear to me that the Albay court was without jurisdiction to consider this case
and properly dismissed the complaint. (Anuran vs. Aquino and Ortiz [1918], 38 Phil., 29.)
Judgment should be affirmed. Order modified and demurrer sustained.
ROMUALDEZ, J.:
In the decision rendered by this court in the case bearing G. R. No. 26464, which is the
same as the present case, among other things, we said the following:
If, as alleged in paragraph 3 of the complaint above quoted, the herein plaintiff had not been
summoned in said case which resulted in judgment being rendered against her, the court of
Manila which tried the case had not, acquired jurisdiction over her person and therefore said
judgment, so far as it affects her, is null and void.
(S 835) b. Want of Jurisdiction of Person. Where the court undertaking to try an action
and render judgment never acquired jurisdiction of the person of defendant, the judgment is
entirely void, and may be so held in a collateral proceeding, unless defendant, by
appearance in the action, he waived the original want of jurisdiction.
(S 836) c. Want of Process or Service. In a personal action the issuance of process and
the service thereof upon defendant is necessary to confer jurisdiction upon the court, and if
no process is issued, or of service is not made on defendant, the judgment will be void and
subject to collateral attack, unless service is waived by voluntary appearance or otherwise.
(34 C. J., 532, 533.)

In this jurisdiction, however, it is a well-settled rule that the petitions for the reinstatement of
cases after final judgment has been entered must be presented under the provisions of
section 113 or 513 of the Code of Civil Procedure, as the case may be, except those cases
where judgment was rendered without jurisdiction and when such a fact appears in the
"Book of Final Records" provided in section 387 of the Code of Civil Procedure. (Anuran vs.
Aquino and Ortiz, 38 Phil., 29.)
Now, the action brought by the herein plaintiff is an ordinary civil action wherein she prays
that judgment be rendered in her favor for the sum of P23,000 as damages, and P200
monthly as rent, with the costs. This is not a mere equity proceeding under section 113 or
513 of the Code of Civil Procedure, the purpose of which in the case of section 113
aforecited is only to free one-self of the compliance with an order or judgment, and in the
case of section 513, the holding of a new trial. Besides, under the first section referred to the
remedy must be applied for in the same court that rendered the judgment, and under the
second, the petition must be presented to the Supreme Court.
According, then, to the rule laid down in the said case of Anuran vs. Aquino and Ortiz, supra,
if the plaintiff preferred to commence an ordinary civil action instead of taking advantage of
the benefits of section 113 of the Code of Civil Procedure, she ought to allege in her
complaint, if the facts justify, that the lack of jurisdiction of the court which rendered the
judgment challenged by her appears in the "Book of Final Records" mentioned in section
387 of the Code of Civil Procedure.
Not having done so the demurrer filed must be sustained; but as it might happen that the
aforesaid lack of jurisdiction may appear in the proper "Book of Final Records," or in the
record of the case, or in the records or dockets of the court concerned, there exists,
therefore, the possibility of the complaint being amended, and it is but just that the plaintiff be
given an opportunity to make said amendment if the same is justified by the actual facts.
In regard to the motion filed by the plaintiff's attorney which is found on folio 20 in the file of
this cause, we are of the opinion that the circumstances of the case require no action by his
court.
For the foregoing, the order appealed from is modify by setting aside the dismissal ordered
and sustaining the demurer filed by the defendant corporation, with permission to the plaintiff
to amend her complaint in harmony with the above resolution within thirty days from the date
of the notification of this decision.
The case was returned to the court of origin and in view of our findings in the decision, part
of which is quoted above, the plaintiff amended her complaint alleging, in the fourth
paragraph thereof, the following:
That it appears from the record of civil case No. 28115 of the Court of First Instance of
Manila that only Ignacio Zubeldia was summoned, neither the herein plaintiff nor her minor
children Leonor, Maria and Ricardo Zubeldia y Echevarria, who, for some time previous to,
and at the time of, the filing of the complaint and the summons in said civil case, as already
stated in the first paragraph of the complaint, resided outside of the Philippine Islands, in the
town of San Sebastian, Province of Guipuzcoa, Spain, having been summoned. Copy of
said summons with the return of the sheriff in said case is hereto attached marked Exhibit B,
and is made an integral part hereof.
According to these allegations, it appears from the record of said case that the defendant
therein and plaintiff herein, Ignacia Echevarria, was at that time in San Sebastian, Province
of Guipuzcoa, Spain, and therefore the Court of First Instance of Manila had no jurisdiction
over her person.

It is true that in the new complaint it is not alleged that such lack of jurisdiction appears in the
"Book of Final Records," referred to in section 387 of the Code of Civil Procedure; but we
stated in the decision above quoted, that:
* * * as it might happen that the aforesaid lack of jurisdiction may appear in the proper "Book
of Final Records," or in the record of the case, or in the records or dockets of the court
concerned, there exists, therefore, the possibility of the complaint being amended, and it is
but just that the plaintiff be given an opportunity to make said amendment if the same is
justified by the actual facts. (Emphasis ours.)
And the plaintiff now alleges in her amended complaint that the said lack of jurisdiction
appears in the record of the case.
The demurrer filed to the complaint thus amended is groundless for the reason the said
complaint alleges facts sufficient to constitute a cause of action and is not ambiguous nor
unintelligible.
The court of First Instance of Albay having sustained said demurrer in its order of July 19,
1927, the same is hereby revoked and said demurrer overruled, and the defendant is
ordered to answer the amended complaint within the period prescribed by the rules, without
any express finding as to costs. So ordered.
Johnson, Street, Ostrand, Johns and Villa-Real, JJ., concur.

------------------------------------[G.R. No. 126321. October 23, 1997]

TOYOTA CUBAO, INC., petitioner, vs. THE HONORABLE COURT OF APPEALS and
DANILO A. GUEVARRA, respondents.
DECISION
VITUG, J.:
Petitioner Toyota Cubao, Inc., undertook repairs on the car owned by private respondent
Danilo Guevarra. The repair cost of P76,800.47 was paid by means of BPI Check No.
17819, dated 12 March 1991, drawn by Guevarra in favor of Toyota. When presented for
payment, the check was dishonored, i.e., "Drawn Against Insufficient Funds (`DAIF')."
Petitioner thereupon requested that Guevarra should make good the check. When Guevarra
failed to heed the demand, petitioner filed a civil case for collection of the unpaid account.
On 07 January 1993, the trial court issued the summons to Guevarra at his address in 29
Burgos Street, Calamba, Laguna. On 02 February 1993, Process Server Antonio Rimas of
the Regional Trial Court of Calamba, Laguna, submitted to the trial court a return on the
service; it read in full:
Respectfully returned to the Branch Clerk of Court, Regional Trial Court, National Capital
Judicial Region, Branch 92, Quezon City, the herein attached original summon in the above
entitled case with the information that it was duly served to the defendant DANILO A.
GUEVARRA, thru her sister-in-law, GLORIA CABALLES, by leaving a copy of the summons
and complaint but refused to sign.
Serve[d] Feb. 2, 1993.[1]
On 23 February 1993, petitioner, claiming that Guevarra had failed to file an ANSWER within
the reglementary period, moved to declare Guevarra in default. A copy of the motion was
furnished Guevarra, through registered mail with return card, at 29 Burgos Street, Calamba,
Laguna.
On 05 March 1993, the scheduled date of hearing on the aforesaid motion, the trial court
held in abeyance any action pending submission to the court of proof of service to Guevarra.

On 16 March 1993, petitioner filed the registry return card indicating receipt of the motion.
On 19 March 1993, the trial court granted petitioner's Motion To Declare Defendant In
Default and allowed an ex-parte presentation of petitioner's evidence.
On 19 May 1993, petitioner presented its evidence ex-parte. Petitioner rested, following its
formal offer of documentary exhibits, and submitted the case for resolution by the court.
On 06 January 1994, the trial court rendered judgment in favor of petitioner; thus:
WHEREFORE, premises considered, the Court finds for the plaintiff and against the
defendant and hereby renders judgment as follows:
1. Ordering the defendant to pay the plaintiff the sum of P76,800.47 with legal interest from
March 3, 1993 and until the amount is fully paid;
2. Ordering the defendant to pay the amount of P10,000.00 as reasonable attorneys fees;
3. With cost of suit against the defendant.[2]
On 08 March 1994, a writ of execution was issued to implement the decision. On 26 July
1995, the Deputy Sheriff, implementing the writ, levied on Guevarras Toyota Corolla bearing
plate No. PRW-329. The notice of levy was served on Guevarra personally but he refused to
sign the receipt thereof, expressed surprise over it, and stated that he was not aware of any
case instituted against him.
On 28 July 1995, the Sheriff issued a notice of auction sale of the levied vehicle that was to
take place on 07 August 1995 at ten o'clock in the morning.
On 07 August 1995, the vehicle was sold at public auction to Christopher Alex Sillano, the
highest bidder, for P150,000.00. Whereupon, the corresponding certificate of sale was
issued in his favor.
Guevarra turned over, on demand, the subject vehicle to the authorities; forthwith, however,
he asked, in a certiorari petition (CA-G.R. SP No. 38048) before the Court of Appeals, for the
nullification of the ex-parte judgment of 06 January 1994. Guevarra claimed that the trial
court did not acquire jurisdiction over his person because of a defective service of summons
on him. The appellate court, finding merit in the petition, annulled and set aside the default
judgment, the writ of execution, the levy upon execution and the sale at public auction of the
vehicle. It held, in its now assailed decision of 28 June 1996, that the substituted service of
summons effected on private respondent was not valid and that, consequently, the
proceedings had before the trial court were nugatory and without legal effect.
In its appeal to this Court, petitioner Toyota argues that the appellate court has gravely erred
in ignoring the rule, enunciated in Mapa vs. Court of Appeals, [3] that the absence in the
sheriffs return of a statement about the impossibility of personal service cannot be
conclusive proof that the substituted service resorted to is invalid. Petitioner points out that
Mapa has cautioned against jumping outright to the conclusion that a substituted service
becomes inconsequential merely because the process server may have failed to state with
specificity the reason for resorting to substituted service. Petitioner asserts that the
requirements of Section 8, Rule 14, of the Revised Rules of Court have been met and that
the evidence for such compliance is the affidavit of the process server on the substituted
service annexed to its reply filed before the appellate court.
The Court sustains the Court of Appeals.
Section 7, Rule 14, of the Rules of Court requires that summons must be served personally
by "handing a copy thereof to the defendant in person or, if he refuses to receive it, by
tendering it to him." If, however, this mode of service cannot be effected within a reasonable
time, substituted service may be resorted to under Section 8 of the same Rule. A law
prescribing the manner in which the service of summons should be effected is jurisdictional
in character and its proper observance is what dictates the court's ability to take cognizance

of the litigation before it. Compliance therewith must appear affirmatively in the return. It
must so be as substitute service is a mode that departs or deviates from the standard rule.
Substitute service must be used only in the way prescribed, and under circumstances
authorized, by law.[4]
In Mapa vs. Court of Appeals,[5] we did say that x x x the absence in the sheriffs return of a statement about the impossibility of personal
service does not conclusively prove that the service is invalid. Proof of prior attempts at
personal service may be submitted by the plaintiff during the hearing of any incident
assailing the validity of the substituted service. While the sheriffs return carries with it the
presumption, albeit disputable, of regularity in the sense that inter alia, the entries therein
are deemed correct, it does not necessarily follow that an act done in relation to the official
duty for which the return is made was not done simply because it is not disclosed therein."[6]
The Court, however, has elucidated that evidence must in such a case be duly presented
that would prove proper compliance with the rules on substituted service. Hence "x x x. Unfortunately in these instant cases, the private respondent failed to present evidence
during the hearings of the petitioners separate motions to dismiss and set aside judgment to
prove that substituted service of summons was indeed effected in strict compliance with
Section 8, Rule 14 of the Rules of Court. During such hearings, the private respondent could
also have presented evidence to show that the petitioner did in fact receive from Susan O.
dela Torre the summonses, together with copies of the complaints, in both cases. If indeed
the petitioner received the same, the requirement of due process would have been complied
with.[7]
And, in Keister vs. Navarro,[8] the Court said:
"Service of summons upon the defendant is the means by which the court may acquire
jurisdiction over his person. In the absence of a valid waiver, trial and judgment without such
service are null and void. [Salmon, et al. v. Tan Cueco, 36 Phil. 556; Echevarria v. Parsons
Hardware Co., 51 Phil. 980; Reyes v. Paz, et al., 60 Phil. 440; Pantaleon v. Asuncion, 105
Phil. 761; Government v. Botor, 69 Phil. 130; Caneda v. Court of Appeals, 116 Phil. 283;
Trimica, Inc. v. Polaris Marketing Corporation, 60 SCRA 321, 325.] This process is solely for
the benefit of the defendant. [Mosaic Templars of America v. Saines, Civ. App. 265, SW
721.] Its purpose is not only to give the court jurisdiction of the person of the defendant, but
also to afford the latter an opportunity to be heard on the claim made against him. [72 C.J.S.
989; Mohr v. Manvierre, 101 U.S. 417, 25 L. ed. 1052.]
"The summons must be served to the defendant in person. [Section 7, Rule 14, Revised
Rules of Court.] It is only when the defendant cannot be served personally within a
reasonable time that a substituted service may be made. [Section 8, Ibid.] Impossibility of
prompt service should be shown by stating the efforts made to find the defendant personally
and the fact that such efforts failed. This statement should be made in the proof of service.[I
Moran, Comments on the Rules of Court, 1970 Ed., p. 444.] This is necessary because
substituted service is in derogation of the usual method of service. It has been held that this
method of service is `in derogation of the common law; it is a method extraordinary in
character, and hence may be used only as prescribed and in the circumstances authorized
by statute.' [72 C.J.S. 1053.] Thus, under the controlling decisions, the statutory
requirements of substituted service must be followed strictly, faithfully and fully, and any
substituted service other than that authorized by the statute is considered ineffective. [Ibid.,
pp. 1053-1054.]

"Indeed, the constitutional requirement of due process requires that the service be such as
may be reasonably expected to give the desired notice to the party of the claim against him.
[Perkins v. Dizon, 69 Phil. 186; Dy Reyes v. Ortega, 16 SCRA 903.]"[9]
It is not here disputed that substituted service of summons has been resorted to by the
process server but that, unfortunately, the server's return did not state the facts or the
needed particulars that could justify the substituted service. The constitutional requirement of
due process, this Court has held in Boticano vs. Chu, Jr.,[10] exacts that the service (of
summons) be such as may reasonably be expected to give the notice desired. Once the
service provided by the rules accomplishes that end, "the requirement of justice is answered;
the traditional notions of fair play are satisfied; due process is served. [11] Although Moran, on
the Rules of Court, has said that Irregularities of this kind (substituted service) (might) be
cured by proof that the copies (have) actually been delivered to the defendant," in the case
at bar, however, private respondent appears to have been notified of the case for the first
time only at the time the levy on execution of judgment was effected by the sheriff.
The fact of the matter was that Guevarra evidently had been unaware of the proceedings
before the Quezon City Regional Trial Court in Civil Case No. Q-92-14306. Upon learning of
the adverse decision, but already too late in the day for him to get relief from that court, he
filed, instead, a certiorari petition before the Court of Appeals. The appellate court neither
abused its discretion nor was in error when it refused to consider the affidavit of the process
server (declaring the concomitant facts required to be incorporated in the return) which was
presented to it for the first time only as an annex to its Reply filed with the tribunal. For the
appellate court to have accepted the affidavit favorably on its face value, without hearing,
would have again been a denial to the defendant (herein private respondent) of his right to
due process.
WHEREFORE, the petition for review is DENIED. No costs.
SO ORDERED
Davide, Jr., (Chairman), Bellosillo, and Kapunan, JJ., concur.
-------------------------------------------------------------------[G.R. No. 140244. August 29, 2000]
JOEL R. UMANDAP, petitioner, vs. HON. JUDGE JOSE L. SABIO, JR., and DOMINGO F.
ESTOMO, respondents.
DECISION
GONZAGA-REYES, J.:
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking
the reversal of the June 7, 1999 Decision of the Court of Appeals[1] in CA-G.R. SP No. 51294
and the September 30, 1999 Resolution denying the motion to reconsider said decision. The
challenged decision dismissed, for lack of merit, the petition for certiorari, to annul the
Resolutions dated October 2, 1998 and January 18, 1999 of the Regional Trial Court of
Misamis Oriental (Branch 23) in Civil Case No. 97-559 which, respectively, denied the
motion to set aside judgment by default and quash writ of execution; and denied the motion
for reconsideration.
The facts are summarized by the Court of Appeals in this wise:
"In August, 1997, private respondent Domingo Estomo filed against petitioner Joel Umandap
an action for damages based on breach of contract. On February 3, 1998, Process Server
Marmolejo effected substituted service of the summons and copy of the Complaint upon
petitioner, by leaving a copy thereof at petitioner's home and office address to a certain

Joseph David who refused to receive and acknowledge the same (Officer's Return, Rollo, p.
27).
Petitioner failed to file his Answer and, on motion of private respondent, was declared in
default. Thereafter, private respondent was allowed to adduce his evidence ex parte. On
May 8, 1998, the trial court rendered a judgment against petitioner, the dispositive portion of
which reads:
"WHEREFORE, premises above-considered and pursuant to applicable law on the matter
and plaintiff having proven by preponderance of evidence his right to the relief prayed for,
judgment is hereby rendered in favor of the plaintiff and against the defendant Joel R.
Umandap holding the latter liable to plaintiff and ordering the defendant to pay to the plaintiff:
"1. The amount of P304,393.25 representing the unremitted collections from
MORESCO/NEA received by defendant;
2. The amount of P200,000.00 as reimbursement of interest incurred and paid by plaintiff to
finish the contracted project;
"3. P50,000.00 as moral damages;
"4. P75,000.00 as attorney's fees;
"5. Litigation expenses of P5,547.00; and
"6. Cost of this suit.
"SO ORDERED."
(Rollo, p. 33).
On July 8, 1998, a Writ of Execution was issued and petitioner's deposit and receivables
were garnished. On August 3, 1998, petitioner filed a Motion to Set Aside Judgment by
Default and Quash Writ of Execution which respondent Court denied in an Order dated
October 2, 1998. Petitioner's motion for reconsideration was likewise denied in the Courts
order of January 18, 1999. xxx.[2]
Aggrieved, petitioner filed with the Court of Appeals a Petition for Certiorari under Rule 65 of
the Rules of Court assailing the resolutions of the trial court dated October 2, 1998 and
January 18, 1999.
Petitioner argued before the Court of Appeals that the trial court never acquired jurisdiction
over his person because there has been no valid service of summons; that the substituted
service of summons was improper and invalid since the process server's return failed to
show on its face the impossibility of personal service.
In dismissing the petition, the Court of Appeals found that the process server's Return is
"valid and regular on its face, and readily reveals that earnest efforts were exerted to find the
defendant personally but such efforts failed." The Court of Appeals also held that the "return
is clothed with the mantle of presumption of regularity under Section 3[m], Rule 131 of the
New Rules on Evidence; and that said presumption is not overcome by petitioner's
unsubstantiated and self-serving assertion that the process server went to his home and
office address only once."
Hence, this recourse to this Court.
In his Memorandum, petitioner raises the following issues:
1. Whether or not the substituted service of summons made on petitioner through Joseph
David on February 3, 1998 was valid and regular.
2. On the assumption that the service of summons made on petitioner was valid, whether or
not the Court of Appeals acted in accord with law and the applicable decisions of this Court
when it refused to set aside the default judgment rendered against petitioner in Civil Case
No. 97-559 (RTC-Misamis oriental, Branch 23; Cagayan de Oro City) and giving the latter a

chance to present his evidence therein so as to rebut or even defeat private respondent's
claim.[3]
The main issue in this petition is whether or not petitioner was served valid summons so as
to bring him within the jurisdiction of the court.
There can be no dispute that service of summons upon the defendant is necessary in order
that a court may acquire jurisdiction over his person. Any judgment without such service in
the absence of a valid waiver is null and void.[4]
Pursuant to Section 6, Rule 14 of the Revised Rules of Court, the general rule in this
jurisdiction is that summons must be served personally on the defendant, it reads:
"SEC. 6. Service in person on defendant. - Whenever practicable, the summons shall be
served by handing a copy thereof to the defendant in person, or, if he refuses to receive and
sign for it, by tendering it to him."
However, when the defendant cannot be served personally within a reasonable time after
efforts to locate him have failed, substituted service may be made. Section 7, Rule 14 of the
Revised Rules of Court reads:
"SEC. 7. Substituted Service. - If, for justifiable causes, the defendant cannot be served
within a reasonable time as provided in the preceding section, service may be effected (a) by
leaving copies of the summons at the defendant's residence with some person of suitable
age and discretion then residing therein, or (b) by leaving the copies at defendant's office or
regular place of business with some competent person in charge thereof."
In fine, the two modes for effecting substituted service of summons are: (a) by leaving copies
of the summons at the defendant's residence with some person of suitable age and
discretion; and (b) by leaving copies at defendant's office or regular place of business with
some competent person in charge thereof. Among these two modes of substituted service,
the sheriff or the process server may choose that which will more likely insure the
effectiveness of the service.[5]
In Venturanza vs. Court of Appeals,[6] this Court described how the impossibility of personal
service should be shown:
"The substituted service should be availed only when the defendant cannot be served
promptly in person. Impossibility of prompt service should be shown by stating the efforts
made to find the defendant personally and the failure of such efforts. The statement should
be made in the proof of service. This is necessary because substituted service is in
derogation of the usual method of service. Substituted service is a method extraordinary in
character, and hence may be used only as prescribed in the circumstances authorized by
statute. Thus, the statutory requirements of substituted service must be followed strictly,
faithfully, and any substituted service other than that authorized by the statute is considered
ineffective."
The proof of service alluded to is the return required by Section 4 of Rule 14 which reads:
"SEC. 4. Return. - When the service has been completed, the server shall, within five (5)
days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's
counsel, and shall return the summons to the clerk who issued it, accompanied by proof of
service."
Central to the instant controversy is the process server's return which petitioner relies upon
to show the invalidity of the substituted service of summons. He points to the following
alleged defects: (1) it does not state the efforts exerted or the alleged occasions on which
attempts were made to personally serve the summons upon petitioner; (2) it does not state
that Joseph David, to whom the process server left or tendered the summons and a copy of
the complaint was a person of suitable age and discretion then residing therein or a

competent person in charge of petitioner's residence or office; and, (3) it is not entitled to the
presumption of regularity since there is no compliance with the rules on substituted service.
We find petitioner's contentions to be devoid of merit.
The process server's return reads in full:
OFFICER'S RETURN
"THIS IS TO CERTIFY, that on the 3rd day of February 1998, undersigned served copy of
the summon with the copy of the complaint and its annexes, upon the defendant Joel R.
Umandap Jofel Construction, at No. 14-3rd St., New Manila, Quezon City by
leaving/tendering the copy to Joseph David receiving of said office, but he refused to sign in
receipt of the copy.
That despite efforts exerted to serve said process personally upon the defendant on several
occasions the same proved futile, for the reason that herein defendant was not around, thus
substituted service was made in accordance with the provision of Section 8, Rule 14 of the
Revised Rules of Court, and that this return is now being submitted to the Court of origin with
the information DULY SERVED.
Quezon City, Metro Manila, February 13, 1998.
FOR THE EX-OFFICIO SHERIFF
RUCIO C. MARMOLEJO
RTC/Process Server"
We are inclined to uphold the view of the Court of Appeals that the presumption of regularity
in the performance of official functions holds in this case. Indeed, in the absence of contrary
evidence, a presumption exists that a sheriff has regularly performed his official duty.[7] To
overcome the presumption arising from the sheriffs certificate, the evidence must be clear
and convincing.[8]
In the instant case, no proof of irregularity in the process server's return was presented by
petitioner. On the contrary, a perusal of the process server's return in the instant case shows
compliance with the requirements of substituted service in accordance with the requirements
set forth in Laus vs. Court of Appeals,[9] enumerated as follows: (a) indicate the impossibility
of service of summons within a reasonable time, (b) specify the efforts exerted to locate the
petitioners and (c) state that it was served on a person of sufficient age and discretion
residing therein.
First. The return indicates the location or address of the defendant where the summons was
served. Second. It indicates the efforts and/or prior attempts at personal service made by the
process server and that such attempts had proved futile, prompting the latter to resort to
substituted service. Third. It indicates that summons was left or tendered to Joseph David
"receiving of said office."
As it turns out, petitioner's allegation that the process server went to his home and office
address only once is, as correctly pointed out by the Court of Appeals, "unsubstantiated and
self-serving assertion of the petitioner." We have no reason to disbelieve or disregard the
statement in the return that personal service of summons was attempted on several
occasions. It is likewise not denied that the address stated therein, No. 14-3 rd St., New
Manila, Quezon City, is both the residence and office address of petitioner at the time the
summons was served. Thus, the place of service is not in issue. Significantly, petitioner
admitted receipt by Joseph David, nephew of his wife, of the summons and the complaint. [10]
He claims; however, that his nephew misplaced the same and ultimately failed to inform
defendant thereof. The return indicates that Joseph David was the "receiving of said office",
which sufficiently conveys that he was a person of sufficient age and discretion residing
therein, tasked as he is to receive for the office. In any event, petitioner never alleged in any

of his pleadings filed before the lower and appellate courts, and even in this Court, that
Joseph David was incompetent to receive the summons and a copy of the complaint and
that he was not a resident therein. The presumption that the process server left or tendered
the summons upon a person of sufficient age and discretion stands unrebutted.
In light of these facts, the appellate court's reliance on the process server's return that
summons upon petitioner through Joseph David was validly served in consonance with the
principle of presumption in favor of regularity of performance of official functions of a public
officer rests on a firm basis. The requirements of substituted service as emphasized in the
Laus case[11] were all complied with.
Finally, petitioner's argument that assuming the summons was validly served the Court of
Appeals should have nevertheless set aside the default judgment rendered against him
invoking the liberal construction of the rules is clearly untenable. Liberal construction of the
Rules may be invoked in situations wherein there may be some excusable formal deficiency
or error in a pleading, provided that the same does not subvert the essence of the
proceeding and connotes at least a reasonable attempt at compliance with the Rules. [12] In
the instant case, we agree with the trial court's observations of petitioner's resort to
technicalities in an apparent attempt to frustrate the ends of justice. We quote:
"In the case at bar, defendant never rebutted the fact that they received copies of the
summons and its annexes but rather questioned the process in which summons was served
by the sheriff.Certificate of service of summons by the sheriff is prima facie evidence of the
facts set out in such certificate and to overcome the presumption arising from the sheriff's
return, the evidence must be clear and convincing. But petitioner failed to overcome this
presumption. (Ramon Orosa, et al., vs. CA, et al., G. R. No. 118698, September 3, 1996).
Besides, respondent judge had the right to rely on the sheriff's return because there is the
presumption of regularity in the performance of their duties. (Claridad vs. Santos, January
27, 1998; Sec. 39m) Rule 131 of the Rules of Court).
Defendant Umandap could hardly feign ignorance of the existence of this instant case
considering the fact that he received a copy of order of this Court under date March 18, 1998
declaring him in default as evidenced by the Return and attached to the records of this case
dated March 27, 1998. Likewise, defendant received a copy of the judgment of this Court
Order dated May 8, 1998 as evidenced by Registry Return Slip dated May 29, 1998 attached
to the records of this case. Isn't this a case of a person who feigned to be asleep but who is
really awake?
Defendant Umandap in his affidavit of merit admitted that Joseph David (the person to whom
RTC Process Server Marmolejo gave the summons) was his wife's nephew. Defendant
never rebutted the fact that he received a copy of the judgment of this Court through a
certain Bobby Santiago, the Auditor of his company.
It is very clear that defendant Umandap is guilty of laches for failure to seasonably act on
those lawful Order he received from this Court. It was only when his receivables were
garnished that defendant filed these motions. This Court cannot help but conclude that all
the allegations made by defendant as to the regularity of service of notice are feeble and
desperate attempts to prevent the garnishment of his funds. Based on existing fact and
jurisprudence on the matter, they hardly deserve any consideration by the Court.[13]
Considering that petitioner received a copy of the Order dated March 18, 1998 declaring him
in default on March 27, 1998 and a copy of the judgment dated May 8, 1998 on May 29,
1998, as evidenced by registry return receipts, he could have protected his rights by availing
himself of several avenues of redress, including, filing a motion to set aside the order of
default in accordance with Sec. 3 (b), Rule 9 of the Rules of Court; or he could have taken

an ordinary appeal to the Court of Appeals in accordance with Sec. 2 (a), Rule 41 of the
Rules of Court questioning the judgment of the trial court.
WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of
Appeals is AFFIRMED.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

------------------------------------------[G.R. No. 127692. March 10, 2004]

FORTUNATO GOMEZ and AURORA GOMEZ, petitioners, vs. COURT OF APPEALS,
ADOLFO TROCINO and MARIANO TROCINO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court
assailing the decision[1] of the Court of Appeals dated September 30, 1996, in CA-G.R. SP
No. 40067, nullifying the decision and orders of the Regional Trial Court of Cebu City
(Branch 10) in Civil Case No. CEB-11103, for want of jurisdiction.
Civil Case No. CEB-11103 is an action for specific performance and/or rescission filed by
herein petitioners, spouses Fortunato and Aurora Gomez, against the heirs of Jesus J.
Trocino, Sr., which include herein respondents and their mother Caridad Trocino.[2]
Filed on December 16, 1991, the complaint alleges: Some time in 1975, the spouses Jesus
and Caridad Trocino mortgaged two parcels of land covered by TCT Nos. 10616 and 31856
to Dr. Clarence Yujuico. The mortgage was subsequently foreclosed and the properties sold
at public auction on July 11, 1988, and before the expiry of the redemption period, the
spouses Trocino sold the property to petitioners on December 12, 1989, who in turn,
redeemed the same from Dr. Yujuico. The spouses Trocino, however, refused to convey
ownership of the properties to petitioners, hence, the complaint.
On January 10, 1992, the trial courts Process Server served summons on respondents, in
the manner described in his Return of Service, to wit:
Respectfully returned to the Branch Clerk of Court, Regional Trial Court of Cebu, Branch 10,
the herein attached original summons issued in the above-entitled case with the information
that on January 8, 1992 summons and copies of the complaint were served to the
defendants Jacob, Jesus Jr., Adolfo, Mariano, Consolacion, Alice, Racheal thru defendant
Caridad Trocino at their given address at Maria Cristina Extension (besides Sacred Heart
School for Girls), Cebu City, evidence by her signature found at the lower portion of the
original summons.[3]
WHEREFORE I, respectfully return the original summons duly served to the court of origin.
Cebu City, Philippines, January 10, 1992.
(signed)
DELFIN D. BARNIDO
RTC Process Server
On January 27, 1992, the defendants, through their counsel Atty. Expedito P. Bugarin, filed
their Answer. Defendant Caridad A. Trocino, respondents mother, verified said pleading.[4]
After trial on the merits, the RTC rendered its decision on March 1993, with the following
disposition:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs
and against the defendants.

The latter are hereby ordered to jointly and severally execute a Deed of Sale in favor of the
plaintiffs and to deliver the owners duplicate copies of TCT Nos. 10616 and 31856, covering
the properties sold, to the plaintiffs within ten (10) days from the finality of the judgment, after
which plaintiffs shall pay in turn to the defendants the balance of P2,000,000.00. Otherwise,
the sale is rescinded and revoked and the defendants are directed to return to the plaintiffs
the amount of P500,000.00, with interest of 12% per annum computed from December 6,
1989, until the full amount is paid.
In addition thereto, defendants are to pay jointly and severally to the plaintiffs, the amount of
P50,000.00 as moral damages; P20,000.00 as exemplary damages; P40,000.00 by way of
attorneys fees; and P10,000.00 as litigation expenses.
SO ORDERED.[5]
Due to the defendants failure to deliver the owners duplicate of TCT Nos. 10616 and 31856,
the RTC issued an order on August 29, 1995 declaring said titles null and void, and ordering
the Register of Deeds of Cebu City to issue new titles in the name of herein petitioners.[6]
Thereafter, or on March 13, 1996, respondents Adolfo and Mariano Trocino filed with the
Court of Appeals, a petition for the annulment of the judgment rendered by the RTC-Cebu
(Branch 10) in Civil Case No. CEB-11103. Private respondents alleged that the trial courts
decision is null and void on the ground that it did not acquire jurisdiction over their persons
as they were not validly served with a copy of the summons and the complaint. According to
them, at the time summons was served on them, Adolfo Trocino was already in Ohio, U.S.A.,
and has been residing there for 25 years, while Mariano Trocino was in Talibon, Bohol, and
has been residing there since 1986. They also refuted the receipt of the summons by
Caridad A. Trocino, and the representation made by Atty. Bugarin in their behalf.
Respondents also contended that they have a meritorious defense. [7] Petitioners filed their
Comment/Answer to the petition.[8]
On September 30, 1996, the Court of Appeals issued the assailed Decision granting the
petition and annulling the decision of the RTC-Cebu (Branch 10). The decretal portion of the
decision reads:
WHEREFORE, the decision of the Regional Trial Court of Cebu City, Branch 10, in Civil
Case No. CEB-11103 as well as all Orders issued to implement the same are hereby
ANNULLED AND SET ASIDE. The Register of Deeds of Cebu City is hereby ENJOINED
from cancelling Transfer Certificates of Title Nos. 10616 and 31856. No pronouncement as
to costs.
SO ORDERED.[9]
Their motion for reconsideration having been denied by the Court of Appeals, petitioners
filed the present petition, setting forth the following assignment of errors:
I. THE COURT OF APPEALS ERRED IN FINDING LACK OF PRIOR KNOWLEDGE ON
THE PART OF RESPONDENTS TROCINO, REGARDING THE PROCEEDINGS BEFORE
THE RTC OF CEBU CITY AND IN NOT DISMISSING THE PETITION FOR VIOLATION OF
SUPREME COURT CIRCULAR 04-94.
II. THE COURT OF APPEALS ERRED IN DECLARING THE NEED FOR PERSONAL
AND/OR EXTRATERRITORIAL SERVICE OF SUMMONS, DESPITE THE NATURE OF
THE CAUSE OF ACTION BEING ONE IN REM.
III. THE COURT OF APPEALS ERRED IN ANNULLING THE JUDGMENT, CAUSING
FURTHER USELESS LITIGATION AND UNNECESSARY EXPENSE ON PETITIONERS
AND RESPONDENTS, ESPECIALLY SINCE RESPONDENTS HAVE NOT SHOWN ANY
VALID DEFENSE AS GROUND FOR REVERSAL OF JUDGMENT OF THE RTC.

IV. THE COURT OF APPEALS ERRED IN RULING THAT ITS JUDGMENT IS APPLICABLE
IN FAVOR OF CARIDAD TROCINO.[10]
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. [11]
Any judgment without such service in the absence of a valid waiver is null and void.[12]
The resolution of the present petition hinges on the issue of whether or not summons was
effectively served on respondents. If in the affirmative, the trial court had validly acquired
jurisdiction over their persons and therefore its judgment is valid.
To resolve whether there was valid service of summons on respondents, the nature of the
action filed against them must first be determined. As the Court explained in Asiavest
Limited vs. Court of Appeals, it will be helpful to determine first whether the action is in
personam, in rem, or quasi in rem because the rules on service of summons under Rule 14
of the Rules of Court of the Philippines apply according to the nature of the action.[13]
In actions in personam, summons on the defendant must be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him. This
is specifically provided in Section 7, Rule 14 of the Rules of Court,[14] which states:
SEC. 7. Personal service of summons.-- The summons shall be served by handing a copy
thereof to the defendant in person or, if he refuses to receive it, by tendering it to him.
If efforts to find defendant personally makes prompt service impossible, substituted service
may be effected by leaving copies of the summons at the defendant's dwelling house or
residence with some person of suitable age and discretion then residing therein, or by
leaving the copies at the defendant's office or regular place of business with some
competent person in charge thereof.[15] In substituted service, it is mandated that the fact of
impossibility of personal service should be explained in the proof of service.[16]
When the defendant in an action in personam 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 his person. This cannot be done if the
defendant is not physically present in the country, and thus, the court cannot acquire
jurisdiction over his person and therefore cannot validly try and decide the case against him.
[17]
An exception was accorded in Gemperle vs. Schenker wherein service of summons
through the non-residents wife, who was a resident of the Philippines, was held valid, as the
latter was his representative and attorney-in-fact in a prior civil case filed by the nonresident, and the second case was merely an offshoot of the first case.[18]
Meanwhile, in actions 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, although summons must be served upon the defendant in order to
satisfy the due process requirements.[19] 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, summons may be served extraterritorially 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.[20]
In the present case, petitioners cause of action in Civil Case No. CEB-11103 is anchored on
the claim that the spouses Jesus and Caridad Trocino reneged on their obligation to convey
ownership of the two parcels of land subject of their sale. Thus, petitioners pray in their
complaint that the spouses Trocino be ordered to execute the appropriate deed of sale and

that the titles be delivered to them (petitioners); or in the alternative, that the sale be revoked
and rescinded; and spouses Trocino ordered to return to petitioners their down payment in
the amount of P500,000.00 plus interests. The action instituted by petitioners affect the
parties alone, not the whole world. Hence, it is an action in personam, i.e., any judgment
therein is binding only upon the parties properly impleaded.[21]
Contrary to petitioners belief, the complaint they filed for specific performance and/or
rescission is not an action in rem. While it is a real action because it affects title to or
possession of the two parcels of land covered by TCT Nos. 10616 and 31856, it does not
automatically follow that the action is already one in rem. In Hernandez vs. Rural Bank of
Lucena, Inc., the Court made the following distinction:
In a personal action, the plaintiff seeks the recovery of personal property, the enforcement of
a contract or the recovery of damages. In a real action, the plaintiff seeks the recovery of
real property, or, as indicated in section 2(a) of Rule 4, a real action is an action affecting title
to real property or for the recovery of possession, or for partition or condemnation of, or
foreclosure of a mortgage on, real property.
An action in personam is an action against a person on the basis of his personal liability,
while an action in rem is an action against the thing itself, instead of against the person.
Hence, a real action may at the same time be an action in personam and not necessarily an
action in rem.[22]
The objective sought in petitioners complaint was to establish a claim against respondents
for their alleged refusal to convey to them the title to the two parcels of land that they
inherited from their father, Jesus Trocino, who was one of the sellers of the properties to
petitioners. Hence, to repeat, Civil Case No. CEB-11103 is an action in personam because it
is an action against persons, namely, herein respondents, on the basis of their personal
liability. As such, personal service of summons upon the defendants is essential in
order for the court to acquire of jurisdiction over their persons.[23]
A distinction, however, must be made with regard to service of summons on respondents
Adolfo Trocino and Mariano Trocino. Adolfo Trocino, as records show, is already a resident
of Ohio, U.S.A. for 25 years. Being a non-resident, the court cannot acquire jurisdiction over
his person and validly try and decide the case against him.
On the other hand, Mariano Trocino has been in Talibon, Bohol since 1986. To validly
acquire jurisdiction over his person, summons must be served on him personally, or through
substituted service, upon showing of impossibility of personal service. Such impossibility,
and why efforts exerted towards personal service failed, should be explained in the proof of
service. The pertinent facts and circumstances attendant to the service of summons must be
stated in the proof of service or Officers Return. Failure to do so would invalidate all
subsequent proceedings on jurisdictional grounds.[24]
In the present case, the process server served the summons and copies of the complaint on
respondents Jacob, Jesus, Jr., Adolfo, Mariano, Consolacion, Alice and Racheal,[25] through
their mother, Caridad Trocino.[26] The return did not contain any particulars as to the
impossibility of personal service on Mariano Trocino within a reasonable time. Such improper
service renders the same ineffective.
Due process of law requires personal service to support a personal judgment, and, when the
proceeding is strictly in personam brought to determine the personal rights and obligations of
the parties, personal service within the state or a voluntary appearance in the case is
essential to the acquisition of jurisdiction so as to constitute compliance with the
constitutional requirement of due process.[27]

Moreover, inasmuch as the sheriffs return failed to state the facts and circumstances
showing the impossibility of personal service of summons upon respondents within a
reasonable time, petitioners should have sought the issuance of an alias summons. Under
Section 5, Rule 14 of the Rules of Court, alias summons may be issued when the original
summons is returned without being served on any or all of the defendants. [28] Petitioners,
however, did not do so, and they should now bear the consequences of their lack of
diligence.
The fact that Atty. Expedito Bugarin represented all the respondents without any exception
does not transform the ineffective service of summons into a valid one. It does not constitute
a valid waiver or even a voluntary submission to the trial courts jurisdiction. There was not
even the slightest proof showing that respondents authorized Atty. Bugarins appearance for
and in their behalf.As found by the Court of Appeals:
While Caridad Trocino may have engaged the services of Atty. Bugarin, it did not necessarily
mean that Atty. Bugarin also had the authority to represent the defendant heirs. The records
show that in all the pleadings which required verification, only Caridad Trocino signed the
same. There was never a single instance where defendant heirs signed the pleading. The
fact that a pleading is signed by one defendant does not necessarily mean that it is binding
on a co-defendant. Furthermore, Caridad Trocino represented herself as the principal
defendant in her Motion to Withdraw Appeal. (Rollo, p. 80)
Since the defendant heirs are co-defendants, the trial court should have verified the extent of
Atty. Bugarins authority when petitioners failed to appear as early as the pre-trial stage,
where the parties are required to appear.The absence of the defendant heirs should have
prompted the trial court to inquire from the lawyer whether he was also representing the
other petitioners. As co-defendant and co-heirs over the disputed properties, the defendant
heirs had every right to be present during the trial. Only Caridad Trocino appeared and
testified on her own behalf. All the defenses raised were her own, not the defendant heirs.[29]
Consequently, the judgment sought to be executed against respondents were rendered
without jurisdiction as there was neither a proper service of summons nor was there any
waiver or voluntary submission to the trial courts jurisdiction. Hence, the same is void, with
regard to private respondents except Caridad Trocino.
It must be pointed out that while it was the spouses Jesus and Caridad Trocino who sold the
properties to petitioners, their right to proceed against Jesus Trocino when he died was
passed on to his heirs, which includes respondents and Caridad Trocino. Such transmission
of right occurred by operation of law, more particularly by succession, which is a mode of
acquisition by virtue of which the property, rights and obligations to the extent of the value of
the inheritance of a person are transmitted.[30] When the process server personally served
the summons on Caridad Trocino, the trial court validly acquired jurisdiction over her person
alone. Hence, the trial courts decision is valid and binding with regard to her, but only in
proportion to Caridad Trocinos share. As aptly stated by the Court of Appeals:
This Courts decision is therefore applicable to all the defendant heirs with the exception of
defendant Caridad Trocino considering that it was the latter who entered into the alleged
sale without the consent of her husband.She is therefore estopped from questioning her own
authority to enter into the questioned sale. Moreover, Caridad Trocino was validly served
with summons and was accorded due process.[31]
WHEREFORE, the petition for review is DENIED. The decision of the Court of Appeals in
CA-G.R. SP No. 40067 is AFFIRMED.
Costs against petitioners.
SO ORDERED.

Quisumbing, (Acting Chairman), Callejo, Sr., and Tinga, JJ., concur.

Puno, (Chairman), J., on leave.
----------------------------------[G.R. No. 109957. February 20, 1996]
ANTONIO NAVALE, FULGENCIO ABUHAN, LEONARDO NOVO, FILEMON
VALDEHUEZA, RODOLFO SANGA, ROGELIO SANGA, LYNITA VALDEHUEZA
QUIRANTE, TEODORA LIAMSO, MONICA NACASABOG, LEONILA NOBLE,
PETRONILA ALLA, GRACE SISON, REBECCA MARAON, APOLONIA SANICO, ROMEO
YAMSON, EUFRACIA REGAHAL, NATIVIDAD MANAGBANAG, JASMIN ANANETA, REX
MAXILUM, PERPITUA SALVO, ARNULFO TINAMPAY, LENY DUGADUGA, FLORITA
DELA GANAR, LAURITA MALAZARTE, LOURDES IMAN, ESTER DUHAYA, MARY
CAMPANA, FROSERFIDA NULO, DOLORES AGANA, NELSON MAGMAONG, and
CLARITA DONASCO, petitioners, vs. COURT OF APPEALS, HON. GREGORIO
PANTANOSAS, Municipal Trial Court Judge, JOVEN YASAY, and SAMSON YASAY,
respondents.
DECISION
ROMERO, J.:
Petitioners question the decision of the Court of Appeals1 affirming the decision of the
Regional Trial Court (Branch XX) of Cagayan de Oro City dismissing the petition for certiorari
in Special Civil Action No. 10804.
The facts are the following:
Private respondents filed an action for forcible entry and damages with the Municipal Trial
Court in Cities in Cagayan de Oro City docketed as Civil Case No. 8942 with prayer for the
issuance of preliminary mandatory injunction and for the return of the possession of a
portion of the Bagting Estate in Carmen, Cagayan de Oro City over which they claimed
absolute ownership but which had been allegedly occupied by petitioners with force and
violence. Moreover, the latter had also constructed houses thereon against private
respondents will.
The Municipal Trial Court in Cities (MTCC) granted the petition and issued the writ prayed
for. However, petitioners ignored the writ, prompting private respondents to file a motion to
have petitioners declared in contempt. The MTCC subsequently issued an order directing
petitioners to comply with the writ of injunction and for private respondents not to demolish
the formers houses pending a decision on the merits.
Petitioners were later declared in default for failure to appear and to present evidence on
their behalf. The MTCC then rendered judgment based on private respondents evidence
declaring them the rightful possessors of the land; ordering petitioners to immediately vacate
the premises and to pay actual damages for destroying the perimeter fence and guardhouse
in the amount of P5,000.00; exemplary damages of P25,000.00 as a deterrent to future
unlawful acts of the same category; attorneys fees of P5,000.00; and litigation expenses of
P1,000.00 plus costs.
The above judgment became final and writs of execution and demolition were issued.
Petitioners then filed a petition for certiorari with the Regional Trial Court questioning the
order of default, the subsequent judgment and the writ of demolition issued by the MTCC
arguing that they had never been summoned to answer the complaint.
The RTC dismissed the petition finding that, as shown by the Sheriffs return, as of March 29,
1983 summonses were served on petitioners and several John Does, but that they either

refused to receive the same and/or refused to give their names. These actions prompted the
Sheriff to leave copies of the summonses at the residences of petitioners and also with one
Eligio Valdehueza who, petitioners alleged, had allowed them to enter the land in question
and to build their houses thereon in his capacity as judicial administrator of the Bagting
Estates.
The RTC further found that answers were filed in the said case by petitioners without any
qualification; hence, jurisdiction was acquired by the MTCC over their persons.
Elevated to the Court of Appeals, the decision of the RTC was affirmed. Hence, this petition.
Petitioners argue that summonses were never validly served on them and that they did not
appear voluntarily in the action as to be covered by Section 23- of Rule 14 of the Rules of
Court in what is equivalent to service. They contend that it was only Eligio Valdehueza who
received a copy of the summonses and answered the same and that they never authorized
him to represent them. Thus, they conclude, the MTCC never acquired jurisdiction over
them.
We find petitioners contention to be devoid of merit.
Under Section 7, Rule 14 of the Rules of Court, summons may be served personally by
handing a copy thereof to the defendant in person or if he refuses to receive it, by tendering
it to him.
Jurisdiction cannot be acquired over the defendant without service of summons. However,
Section 23 of the Rules provides that the defendants voluntary appearance in the action
shall be equivalent to service. Instances of actions amounting to voluntary appearance have
been held by this Court to be: when his counsel files the corresponding pleading thereon; 2
when a defendant files a motion for reconsideration of the judgment by default; 3 when he
files a petition to set aside the judgment of default;4 when he and the plaintiff jointly submit a
compromise agreement for approval of the trial court.5
In the present case, the record shows that summonses were duly served on petitioners but
that they, not only refused to receive the same, but that they also declined to give their
names.
The Court is aware of the difficulties of serving judicial notices on defendants in unlawful
detainer, recovery of possession, or ejectment cases. Process servers in these cases are
often greeted with hostility and suspicion by the occupants of the subject properties and,
sometimes, even threatened with physical violence.
In the absence of contrary evidence, a presumption exists that a sheriff has regularly
performed his official duty.6 To overcome the presumption arising from the sheriffs certificate,
the evidence must be clear and convincing. 7 However, no such proof of irregularity in the
Sheriffs return was ever presented by petitioners.
We have held that the refusal of a defendant (the petitioners in this case) to receive the
summons is a technicality resorted to in an apparent attempt to frustrate the ends of justice.8
Granting that there was an invalid service of summons, which is not the case here, still the
MTCC acquired jurisdiction over the petitioners through their voluntary appearance thereat.
As the RTC noted:
On April 11, 1983, defendants, thru counsel and without qualification filed their answer to the
contempt charge filed by private respondents.
On April 12, 1983 all the defendants filed their Answer to the complaint in Civil Case No.
8942 (p. 167, Record in C.C. No. 8942) thru counsel, claiming that the land is part of the
Bagting Estate and they were duly authorized by one, Eligio Valdehueza, administrator of the
Bagting Estate pending in the Court of First Instance of Misamis Oriental and duly appointed
as administrator.

During the execution of the writ of injunction and the contempt proceedings all the
defendants pleaded that they be allowed to vacate the premises within an extended time of
three (3) months provided the contempt petition be withdrawn but later the defendants never
left the premises, hence, the MTCC issued a writ of demolition.
The defendants, thru counsel even answered not only the contempt charge but also the writ
of demolition motion pleading that the case must be tried and decided on the merits before
they will be ejected from the premises.
On April 29, 1983 counsel for defendants manifested and volunteered to have an ocular
inspection of the premises in connection with the claim of the plaintiffs in Civil Case No. 8942
that the defendants defied the order of injunction.
On May 3, 1983 the defendants in the civil case below and also accused in the same court
for violating P.D. 772 agreed with plaintiff below to comply with the order by vacating the
premises as plaintiffs and complainants agreed to their petition for contempt and by virtue of
said agreement no demolition was effected.
On June 6, 1983 the pre-trial was terminated and some of the defendants were declared in
default; on July 20, 1983 Atty. Fermente P. Dable, counsel for the defendants appeared to
explain his non-appearance on the hearing on July 14, 1983.
On December 3, 1983 defendants presented Pricilla Valdehueza as a witness and on
January 6, 1984 (p. 294, Record) Elegio Valdehueza testified and the decision was rendered
on June 13, 1983 by the respondent judge.9
Petitioners actions, such as filing an answer to the contempt charge (among others), are a
clear manifestation that they voluntarily submitted themselves to the jurisdiction of the
MTCC.10 Even their filing of the petition for certiorari is evidence of such voluntary
submission.11
There is no showing that petitioners ever questioned the jurisdiction of the MTCC over them,
except when a judgment in default was declared against them. To properly avail of the
defense of invalid service of summons, petitioners should have questioned it and the MTCCs
exercise of jurisdiction over them, from the very start.
Defects of summons are cured by voluntary appearance and by the filing of an answer to the
complaint. A defendant can not be permitted to speculate upon the judgment of the court by
objecting to the courts jurisdiction over its person if the judgment is adverse to it, and
acceding to jurisdiction over its person if and when the judgment sustains its defense.12
Any form of appearance in court by the defendant, his authorized agent or attorney, is
equivalent to service except where such appearance is precisely to object to the jurisdiction
of the court over his person.13
In La Naval Drug Corporation v. Court of Appeals,14 we held:
Jurisdiction over the person must be seasonably raised, i.e., that it is pleaded in a motion to
dismiss or by way of an affirmative defense in an answer. Voluntary appearance shall be
deemed a waiver of this defense.
However, we also said therein that where the court itself clearly has no jurisdiction over the
subject matter or nature of the action (which is not the case here) the invocation of the
defense of lack of jurisdiction may be raised at any time. An example of this is when the case
falls within the jurisdiction of another government agency or quasi-judicial body; in which
case, voluntary appearance will not be deemed as a waiver.
In the instant case, there is no question that the MTCC had jurisdiction over the subject
matter of the action. The question was whether it had jurisdiction over the person of
petitioners.
We hold that it did.

Petitioners, having failed to object to the MTCCs jurisdiction from the very beginning, may no
longer raise it now as a ground to set aside the judgment by default. Nor can they claim that
they are not bound by the consequences of their own acts before the Court.
As the RTC aptly stated:
x x x otherwise there will be no end to litigation. There will be anarchy if the petitioners will
be allowed to use their own culpa or violation as a reason or excuse from the impact and
sanctions imposed by law. x x x
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED.
Regalado (Chairman), Puno, and Mendoza, JJ., concur.
------------------------------------------------------[G.R. No. 147530. June 29, 2005]
PABLO B. CASIMINA, then General Manager of the Philippine Fisheries Development
Authority, petitioner, vs. HON. EMILIO B. LEGASPI, in his capacity as Presiding Judge
of RTC of Iloilo, Branch 22 and EMMANUEL T. ILLERA, respondents.
DECISION
CORONA, J.:
Before us is a petition for review under Rule 45 of the Rules of Civil Procedure for the
nullification of the decision dated August 18, 2000 of Hon. Emilio B. Legaspi, presiding judge
of the Regional Trial Court of Iloilo City, Branch 22 in Civil Case No. 00-26187, directing
petitioner to desist from giving effect to the re-assignment of private respondent from his
permanent station in Iloilo City to the Quezon City office.
The facts follow.
Private respondent Emmanuel T. Illera was the Port Manager of the Iloilo Fishing Port
Complex (IFPC) while petitioner Pablo B. Casimina was the then General Manager of the
Philippine Fisheries Development Authority (PFDA) with offices in Quezon City.
On March 17, 2000, petitioner Casimina issued Special Order No. 82 [1] re-assigning private
respondent from Iloilo to the central office in Quezon City:
17 March 2000
SPECIAL ORDER
No. 82
Series of 2000
Subject: REASSIGNMENT OF PERSONNEL
In the exigency of the service, Mr. EMMANUEL T. ILLERA, Port Manager of the Iloilo Fish
Port Complex (IFPC) is hereby reassigned to the Central Office of the General Manager
effective 03 April 2000. To assume responsibility of over-all port administration, Engr. TITO
C. COSEJO, Port Manager, Navotas Fish Port Complex (NFPC) is hereby re-assigned and
designated as Acting Port Manager of the Iloilo Fish Port Complex.
Mr. Illera and Engr. Cosejo should immediately clear themselves of their administrative
accountabilities before proceeding to their new place of assignment.
This Order shall remain effective until revoked in writing by the undersigned.
(SGD.) PABLO B. CASIMINA
General
Manager
On March 22, 2000, private respondent sent a memorandum[2] to petitioner praying for a
reconsideration of the above order. He wrote

22 March
2000
M E M O R AN D U M
F O R: The General Manager, PFDA
T H R U: The Asst. General Manager, PFDA
F R O M: The Port Manager, PFDA-IFPC
SUBJECT: REASSIGNMENT
In the late afternoon of 21 March 2000, S.O. no. 82 s. 2000 was faxed to my office. I was
surprised when my staff gave this communication to me the next day because considering
my transfer or any employees transfers for that matter would have far reaching official and
personal consequences as well, I expected that this matter should have at least first been
discussed with me. As it is I do not know for what reasons if any I am being reassigned or
even what I am supposed to be doing in your office when I get there. The S.O. itself is silent
on these matters.
My situation becomes quite ironic when we look at S.O. no. 81 s. 2000 which is dated 14
March 2000. Before this Order referring to Ms. Irma Catains detail to Central Office was
even prepared, Ms. Catain first talked to you, me and Atty. Paz to whose office she will be
assigned. When we accepted her personal reasons for reassignment our offices worked out
the details of her transfer and so the Special Order was issued. If you will recall, last 18
January 2000 an undated S.O. No. 024 was issued transferring Engr. P. Zapanta, the IFPC
Acting EMD chief to General Santos and no prior consultation was also done. I thought with
the procedure observed in Ms. Catains case all that was behind us.
In view therefore of the above I am requesting that S.O. No. 82 s.2000 be reconsidered.
(SGD.) EMMANUEL T. ILLERA
On March 29, 2000, petitioner issued a memorandum [3] to private respondent stating therein
the reason for the re-assignment. He explained
29 March
2000
M E M O R AN D U M
T O: The Port Manager, IFPC
F R O M: The General Manager
SUBJECT: Reassignment to Central Office
Your response dated 22 March 2000 to Special Order No. 82 Series of 2000 regarding your
reassignment to the Central Office is noted.
While in the Central Office, you are expected to help review and formulate credit and
collection policies that would negate the accumulation of uncollected accounts receivables,
in addition to the other duties that may be assigned to you in the interest of the service.
In this connection, you are hereby ordered to cease and desist from the further performance
of your duties as Port Manager of the Iloilo Fish Port Complex effective 03 April 2000 and to
assume duties and responsibilities as stated.
For strict compliance.
(SGD.) PABLO B. CASIMINA
After receiving the memorandum, private respondent immediately filed a case for injunction
with prayer for temporary restraining order and a writ of preliminary injunction against
petitioner in the RTC of Iloilo, Branch 22 docketed as Civil Case No. 00-26187, to restrain
petitioner from transferring him to the central office in Quezon City.
On April 14, 2000, petitioner, through counsel, filed an omnibus motion for the dismissal of
the complaint on the grounds of lack of jurisdiction over his person and the subject matter,

and lack of cause of action. He averred that he never received any summons or copy of the
complaint against him, hence, the court never acquired jurisdiction over his person. He
further contended that the case involved personnel movement of a government employee in
the public service and should have been appealed to the Civil Service Commission instead
of the regular courts.
The trial court denied petitioners motion to dismiss the complaint against him and granted
the writ of preliminary injunction prayed for by private respondent ordering petitioner to desist
from giving effect to the re-assignment of plaintiff (herein private respondent) from his
permanent station in Iloilo City to the Quezon City office.[4]
Petitioner moved for a reconsideration of the above decision but it was denied, hence, this
appeal. He raises the following as the issues for our consideration:
A. Whether or not public respondent, Hon. Emilio B. Legaspi, in his capacity as Presiding
Judge of the Regional Trial Court of Iloilo, Branch 22, exercised grave abuse of discretion
which is tantamount to lack of or in excess of jurisdiction in deciding the case when the said
trial court has not acquired jurisdiction over the person of the petitioner and the subject
matter of the case;
B. Whether or not the instant case should be dismissed for lack of cause of action on the
ground of private respondents failure to exhaust administrative remedies.[5]
Petitioner contends that the court a quo did not acquire jurisdiction over his person because
the summons, together with a copy of the complaint, was not personally served on him. He
argues that the summons was served by the sheriff in the PFDA office in the Iloilo Fishing
Port Complex while his office was in Quezon City. He further contends that when Assistant
Government Corporate Counsel Reynaldo R. Tansioco, Government Corporate Attorney
Ruben S. de la Paz and Government Corporate Attorney Mariano C. Alojado appeared in
court during the hearing of the motion for the issuance of a preliminary injunction on April 18,
2000, they did so only to inform the court that they had filed an omnibus motion to dismiss
the complaint against petitioner on the ground of lack of jurisdiction over his person and over
the subject matter of the case.
We find the petition meritorious.
A court acquires jurisdiction over a person either through a valid service of summons or the
persons voluntary appearance in court. A court must necessarily have jurisdiction over a
party for the latter to be bound by a court decision.[6]
Generally accepted is the principle that no man shall be affected by any proceeding to which
he is a stranger, and strangers to a case are not bound by judgment rendered by the court.[7]
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 may acquire jurisdiction over his
person.[8] As a rule, summons should be personally served on the defendant.[9] It is only
when summons cannot be served personally within a reasonable period of time that
substituted service may be resorted to. [10] The Rules specify two modes for effecting
substituted service of summons, to wit:
a) by leaving copies of the summons at the defendants residence with some person of
suitable age and discretion then residing therein, or
b) by leaving the copies at defendants office or regular place of business with some
competent person in charge thereof.[11]
Here, petitioner never received the summons against him, whether personally or in his office.
The records show that petitioners official address as the General Manager of the Philippine
Fisheries Development Authority (PFDA) was in Quezon City. Yet, the summons, together
with a copy of the complaint, was served not in his Manila office but in PFDAs Iloilo branch

office and received by the records receiving officer there. We have held that the failure to
faithfully, strictly and fully comply with the requirements of substituted service renders the
service ineffective.[12]
In ruling that there was a valid service of summons, respondent judge presumed that the
said Records Receiving Officer (was) authorized to receive the communication or court
processes addressed to the defendant.[13] He further surmised and held that:
One thing sure is, he forwarded it to their Manila, Quezon City Central Office. In fact, Engr.
Tito Cosejo who briefly acted as the Department Manager of the Iloilo Fishing Port Complex,
appeared in Court during the summary hearing on the plaintiffs prayer for the issuance of the
TRO on April 4, 2000 and informed the Court that the summons was received by their
Central Office when defendant was on his way to the province. There was therefore
substantial compliance of the rule on service of summons.
We disagree.
The doctrine of substantial compliance requires that for there to be a valid service of
summons, actual receipt of the summons by the defendant through the person served must
be shown.[14]We further require that where there is substituted service, there should be a
report indicating that the person who received the summons in the defendants behalf was
one with whom petitioner had a relation of confidence ensuring that the latter would receive
or would be notified of the summons issued in his name. [15] None of these was observed in
the case at bar.
We cannot infer actual receipt of summons by petitioner from the fact that the government
corporate counsel filed a motion to dismiss the case against him and Mr. Cosejo appeared
on his behalf during the summary hearing for the issuance of a temporary restraining order
to ask for the postponement of the case. It is well-settled that a party who makes a special
appearance in court challenging the jurisdiction of said court based on the ground of
invalidity of summons, among others, cannot be considered to have submitted himself to the
jurisdiction of the court.[16] 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.[17]
Since the trial court did not acquire jurisdiction over the person of petitioner, he could not
have been bound by the decision of respondent judge ordering him to desist from
transferring private respondent from his station in Iloilo City to the central office in Quezon
City. Any decision rendered without jurisdiction is a total nullity and may be struck down at
any time, even on appeal, before this Court.
On the issue of lack of jurisdiction over the subject matter, we agree with petitioner that this
case falls within the jurisdiction of the Civil Service Commission (CSC) because it involves
the movement of government personnel to promote order and efficiency in public service.
The 1987 Constitution specifically mandates that:
Section 3. The Civil Service Commission, as the central personnel agency of the
government, shall establish a career service and adopt measures to promote morale,
efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil
service. It shall strengthen the merits and rewards system, integrate all human resources
development programs for all levels and ranks, and institutionalize a management climate
conducive to public accountability. It shall submit to the President and the Congress an
annual report on its personnel programs.[18] (emphasis ours)
Personnel actions, i.e., appointments, promotions, transfers, re-assignments, etc., are
specifically provided for in Section 26 (3), Chapter 5, Book V, Subtitle A, of Executive Order
No. 292, or the Administrative Code of 1987. Thus,

Section 26. Personnel Actions. xxx any action denoting the movement or progress of
personnel in the civil service shall be known as personnel action. Such action shall include
appointment through certification, promotion, transfer, reinstatement, re-employment, detail,
reassignment, demotion, and separation. All personnel actions shall be in accordance with
such rules, standards, and regulations as may be promulgated by the Commission.
xxx xxx xxx
(3) Transfer. A transfer is a movement from one position to another which is of equivalent
rank, level, or salary without break in service involving the issuance of an appointment.
It shall not be considered disciplinary when made in the interest of public service, in
which case, the employee concerned shall be informed of the reason therefore. If the
employee believes that there is no justification for the transfer, he may appeal his
case to the Commission. (emphasis ours)
xxx xxx xxx
While we are aware that the power to transfer and re-assign government employees from
one office to another can be abused by some unscrupulous government officials, not all
transfers, however, amount to removal from office.[19]
(N)either does illegality attach to the transfer of an employee from his assigned station to the
main office, effected in good faith and in the interest of the service pursuant to Sec. 32 of the
Civil Service Act.[20]
Here, petitioner ordered the transfer of private respondent from the Iloilo branch to the main
office in Manila in the exigency of the service and in order to
help review and formulate credit and collection policies that would negate the accumulation
of uncollected accounts receivables, in addition to the other duties that may be assigned to
(him) in the interest of the service.[21]
There is nothing to show from the facts presented to us that the order transferring private
respondent to Manila was done in bad faith or motivated by ill will. We thus find his refusal to
transfer to the main office to be without basis.
In any event, if private respondent believed that his transfer was unjustified, his remedy was
to appeal to the Civil Service Commission.[22] It was therefore wrong for the trial court to take
cognizance of the case without private respondent first exhausting the administrative
remedies available to him.
WHEREFORE, foregoing premises considered, the petition is hereby GRANTED. The
decision in Civil Case No. 00-26187, and the order denying the motion for its
reconsideration, are hereby ANNULLED AND SET ASIDE.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Carpio-Morales and Garcia, JJ., concur.
--------------------------------------------------------

SECOND DIVISION
CYNTHIA C. ALABAN, G.R. No. 156021
FRANCIS COLLADO, JOSE
P. COLLADO, JUDITH Present:
PROVIDO, CLARITA PROVIDO,
ALFREDO PROVIDO, MANUEL PUNO, J.,
PROVIDO, JR., LORNA DINA Chairman,

E. PROVIDO, SEVERO ARENGA, AUSTRIA-MARTINEZ,

JR., SERGIO ARENGA, EDUARDO CALLEJO, SR.,
ARENGA, CAROL ARENGA, RUTH TINGA, and
BABASA, NORMA HIJASTRO, CHICO-NAZARIO, JJ.
DOLORES M. FLORES, ANTONIO
MARIN, JR., JOSE MARIN, SR., and
MATHILDE MARIN, Promulgated:
Petitioners,
September 23, 2005
- versus -

COURT OF APPEALS and

FRANCISCO H. PROVIDO,
Respondents.
x-------------------------------------------------------------------x

DECISION
TINGA, J.:
This is a petition for review of the Resolutions[1] of the
Court of Appeals (CA) in CA-G.R. SP No. 69221, [2] dismissing petitioners petition for
annulment of judgment.

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition, docketed

as SP Proc. No. 00-135, for the probate of the Last Will and Testament[3] of the late Soledad
Provido Elevencionado (decedent), who died on 26 October 2000 in Janiuay, Iloilo. [4]
Respondent alleged that he was the heir of the decedent and the executor of her will. On 30
May 2001, the Regional Trial Court (RTC), Branch 68, in P.D. Monfort North, Dumangas,
Iloilo, rendered its Decision,[5] allowing the probate of the will of the decedent and directing
the issuance of letters testamentary to respondent.[6]

More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for
the reopening of the probate proceedings.[7] Likewise, they filed an opposition to the
allowance of the will of the decedent, as well as the issuance of letters testamentary to

respondent,[8] claiming that they are the intestate heirs of the decedent. Petitioners claimed
that the RTC did not acquire jurisdiction over the petition due to non-payment of the correct
docket fees, defective publication, and lack of notice to the other heirs. Moreover, they
alleged that the will could not have been probated because: (1) the signature of the
decedent was forged; (2) the will was not executed in accordance with law, that is, the
witnesses failed to sign below the attestation clause; (3) the decedent lacked testamentary
capacity to execute and publish a will; (4) the will was executed by force and under duress
and improper pressure; (5) the decedent had no intention to make a will at the time of
affixing of her signature; and (6) she did not know the properties to be disposed of, having
included in the will properties which no longer belonged to her. Petitioners prayed that the
letters testamentary issued to respondent be withdrawn and the estate of the decedent
disposed of under intestate succession.[9]

On 11 January 2002, the RTC issued an Order[10] denying petitioners motion for being
unmeritorious. Resolving the issue of jurisdiction, the RTC held that petitioners were deemed
notified of the hearing by publication and that the deficiency in the payment of docket fees is
not a ground for the outright dismissal of the petition. It merely required respondent to pay
the deficiency.[11] Moreover, the RTCs Decision was already final and executory even before
petitioners filing of the motion to reopen.[12]
Petitioners thereafter filed a petition[13] with an application for preliminary injunction with the
CA, seeking the annulment of the RTCs Decision dated 30 May 2001 and Orderdated 11
January 2002. They claimed that after the death of the decedent, petitioners, together with
respondent, held several conferences to discuss the matter of dividing the estate of the
decedent, with respondent agreeing to a one-sixth (1/6) portion as his share. Petitioners
allegedly drafted a compromise agreement to implement the division of the estate. Despite
receipt of the agreement, respondent refused to sign and return the same. Petitioners
opined that respondent feigned interest in participating in the compromise agreement so that
they would not suspect his intention to secure the probate of the will. [14] They claimed that
they learnt of the probate proceedings only in July of 2001, as a result of which they filed
their motion to reopen the proceedings and admit their opposition to the probate of the will
only on 4 October 2001. They argued that the RTC Decision should be annulled and set
aside on the ground of extrinsic fraud and lack of jurisdiction on the part of the RTC.[15]

In its Resolution[16] promulgated on 28 February 2002, the CA dismissed the petition. It found
that there was no showing that petitioners failed to avail of or resort to the ordinary remedies
of new trial, appeal, petition for relief from judgment, or other appropriate remedies through
no fault of their own.[17] Moreover, the CA declared as baseless petitioners claim that the
proceedings in the RTC was attended by extrinsic fraud. Neither was there any showing that
they availed of this ground in a motion for new trial or petition for relief from judgment in the
RTC, the CA added.[18] Petitioners sought reconsideration of the Resolution, but the same
was denied by the CA for lack of merit.[19]
Petitioners now come to this Court, asserting that the CA committed grave abuse of
discretion amounting to lack of jurisdiction when it dismissed their petition for the alleged
failure to show that they have not availed of or resorted to the remedies of new trial, appeal,
petition for relief from judgment or other remedies through no fault of their own, and held that
petitioners were not denied their day in court during the proceedings before the RTC. [20] In
addition, they assert that this Court has yet to decide a case involving Rule 47 of the Rules
of Court and, therefore, the instant petition should be given due course for the guidance of
the bench and bar.[21]

For his part, respondent claims that petitioners were in a position to avail of the remedies
provided in Rules 37 and 38, as they in fact did when they filed a motion for new trial.
[22]

Moreover, they could have resorted to a petition for relief from judgment since they

learned of the RTCs judgment only three and a half months after its promulgation.
[23]

Respondent likewise maintains that no extrinsic fraud exists to warrant the annulment of

the RTCs Decision, since there was no showing that they were denied their day in court.
Petitioners were not made parties to the probate proceedings because the decedent did not
institute them as her heirs.[24] Besides, assuming arguendo that petitioners are heirs of the
decedent, lack of notice to them is not a fatal defect since personal notice upon the heirs is a
matter of procedural convenience and not a jurisdictional requisite.[25] Finally, respondent
charges petitioners of forumshopping, since the latter have a pending suit involving the same
issues as those in SP No. 00-135, that is SP No. 1181 [26] filed before Branch 23, RTC of
General Santos City and subsequently pending on appeal before the CA in CA-G.R.
No.74924.[27]

It appears that one of the petitioners herein, Dolores M. Flores (Flores), who is a niece of the
decedent, filed a petition for letters of administration with the RTC of General Santos City,
claiming that the decedent died intestate without any issue, survived by five groups of
collateral heirs. Flores, armed with a Special Power of Attorney from most of the other
petitioners, prayed for her appointment as administratrix of the estate of the decedent. The
RTC dismissed the petition on the ground of lack of jurisdiction, stating that the probate court
in Janiuay, Iloilo has jurisdiction since the venue for a petition for the settlement of the estate
of a decedent is the place where the decedent died. This is also in accordance with the rule
that the first court acquiring jurisdiction shall continue hearing the case to the exclusion of
other courts, the RTC added.[28] On 9 January 2002, Flores filed a Notice of Appeal

[29]

and

on 28 January 2002, the case was ordered forwarded to the CA.[30]

Petitioners maintain that they were not made parties to the case in which the decision sought
to be annulled was rendered and, thus, they could not have availed of the ordinary remedies
of new trial, appeal, petition for relief from judgment and other appropriate remedies,
contrary to the ruling of the CA. They aver that respondents offer of a false compromise and
his failure to notify them of the probate of the will constitute extrinsic fraud that necessitates
the annulment of the RTCs judgment.[31]

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on
the ground of fraud, accident, mistake, or excusable negligence. The same

Rule permits the filing of a motion for reconsideration on the grounds of excessive award of
damages, insufficiency of evidence to justify the decision or final order, or that the decision
or final order is contrary to law.[32] Both motions should be filed within the period for taking an
appeal, or fifteen (15) days from notice of the judgment or final order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when
a judgment or final order is entered, or any other proceeding is thereafter taken, against a
party in any court through fraud, accident, mistake, or excusable negligence. Said party may
file a petition in the same court and in the same case to set aside the judgment, order or

proceeding. It must be filed within sixty (60) days after the petitioner learns of the judgment
and within six (6) months after entry thereof.[33]

A motion for new trial or reconsideration and a petition for relief from judgment are remedies
available only to parties in the proceedings where the assailed

judgment is rendered.[34] In fact, it has been held that a person who was never a party to the
case, or even summoned to appear therein, cannot avail of a petition for relief from
judgment.[35]

However, petitioners in this case are mistaken in asserting that they are not or have not
become parties to the probate proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other
person interested in the estate may, at any time after the death of the testator, petition the
court having jurisdiction to have the will allowed. [36] Notice of the time and place for proving
the will must be published for three (3) consecutive weeks, in a newspaper of general
circulation in the province,[37] as well as furnished to the designated or other known heirs,
legatees, and devisees of the testator.[38] Thus, it has been held that a proceeding for the
probate of a will is one in rem, such that with the corresponding publication of the petition the
court's jurisdiction extends to all persons interested in said will or in the settlement of the
estate of the decedent.[39]

Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the right sought
to be established. It is the publication of such notice that brings in the whole world as a party
in the case and vests the court with jurisdiction to hear and decide it. [40]Thus, even though
petitioners were not mentioned in the petition for probate, they eventually became parties
thereto as a consequence of the publication of the notice of hearing.

As parties to the probate proceedings, petitioners could have validly availed of the remedies
of motion for new trial or reconsideration and petition for relief from judgment. In fact,
petitioners filed a motion to reopen, which is essentially a motion for new trial, with

petitioners praying for the reopening of the case and the setting of further proceedings.
However, the motion was denied for having been filed out of time, long after the Decision
became final and executory.
Conceding that petitioners became aware of the Decision after it had become final, they
could have still filed a petition for relief from judgment after the denial of their motion to
reopen. Petitioners claim that they learned of the Decision only on 4 October 2001, or almost
four (4) months from the time the Decision had attained finality. But they failed to avail of the
remedy.

For failure to make use without sufficient justification of the said remedies available to them,
petitioners could no longer resort to a petition for annulment of judgment; otherwise, they
would benefit from their own inaction or negligence.[41]

Even casting aside the procedural requisite, the petition for annulment of judgment must still
fail for failure to comply with the substantive requisites, as the appellate court ruled.

An action for annulment of judgment is a remedy in law independent of the case where the
judgment sought to be annulled was rendered. [42] The purpose of such action is to have the
final and executory judgment set aside so that there will be a renewal of litigation. It is
resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from
judgment, or other appropriate remedies are no longer available through no fault of the
petitioner,[43] and is based on only two grounds: extrinsic fraud, and lack of jurisdiction or
denial of due process.[44] A person need not be a party to the judgment sought to be
annulled, and it is only essential that he can prove his allegation that the judgment was
obtained by the use of fraud and collusion and he would be adversely affected thereby.[45]

An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or
collateral in character.[46] Fraud is regarded as extrinsic where it prevents a party from having
a trial or from presenting his entire case to the court, or where it operates upon matters
pertaining not to the judgment itself but to the manner in which it is procured. The overriding

consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in court.[47]

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondents
deliberate omission or concealment of their names, ages and residences as the other heirs
of the decedent in his petition for allowance of the will, they were not notified of the
proceedings, and thus they were denied their day in court. In addition, they claim that
respondents offer of a false compromise even before the filing of the petition prevented them
from appearing and opposing the petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to known heirs, legatees,
and devisees of the testator.[48] A perusal of the will shows that respondent was instituted as
the sole heir of the decedent. Petitioners, as nephews and nieces of the decedent, are
neither compulsory nor testate heirs[49] who are entitled to be notified of the probate
proceedings under the Rules. Respondent had no legal obligation to mention petitioners in
the petition for probate, or to personally notify them of the same.

Besides, assuming arguendo that petitioners are entitled to be so notified, the purported
infirmity is cured by the publication of the notice. After all, personal notice upon the heirs is a
matter of procedural convenience and not a jurisdictional requisite.[50]

The non-inclusion of petitioners names in the petition and the alleged failure to personally
notify them of the proceedings do not constitute extrinsic fraud. Petitioners were not denied
their day in court, as they were not prevented from participating in the proceedings and
presenting their case before the probate court.

One other vital point is the issue of forum-shopping against petitioners. Forum-shopping
consists of filing multiple suits in different courts, either simultaneously or successively,
involving the same parties, to ask the courts to rule on the same or related causes and/or to
grant the same or substantially same reliefs,[51] on the supposition that one or the other court

would make a favorable disposition.[52] Obviously, the parties in the instant case, as well as in
the appealed case before the CA, are the same. Both cases deal with the existence and
validity of the alleged will of the decedent, with petitioners anchoring their cause on the state
of intestacy. In the probate proceedings, petitioners position has always been that the
decedent left no will and if she did, the will does not comply with the requisites of a valid will.
Indeed, that position is the bedrock of their present petition. Of course, respondent maintains
the contrary stance. On the other hand, in the petition for letters of administration, petitioner
Flores prayed for her appointment as administratrix of the

estate on the theory that the decedent died intestate. The petition was dismissed on the
ground of lack of jurisdiction, and it is this order of dismissal which is the subject of review in
CA-G.R. No. 74924. Clearly, therefore, there is forum-shopping.
Moreover, petitioners failed to inform the Court of the said pending case in their certification
against forum- shopping. Neither have they done so at any time thereafter. The Court notes
that even in the petition for annulment of judgment, petitioners failed to inform the CA of the
pendency of their appeal in CA-G.R. No. 74924, even though the notice of appeal was filed
way before the petition for annulment of judgment was instituted.
WHEREFORE, the petition is DENIED. Costs against petitioners.
SO ORDERED.

DANTE O. TINGA Associate Justice

WE CONCUR:

REYNATO S. PUNO

Associate Justice
Chairman

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Associate Justice
Chairman, Second Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairmans
Attestation, it is hereby certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.

HILARIO G. DAVIDE, JR.

Chief Justice

------------------------------------------------------Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 170232
December 5, 2006
VETTE INDUSTRIAL SALES CO., INC., KENNETH TAN, ESTRELLA CHENG, LUISITO
RAMOS, YVETTE TAN, KESSENTH CHENG, VEVETTE CHENG and FELESAVETTE
CHENG, petitioners,
vs.
SUI SOAN S. CHENG a.k.a. CHENG SUI SOAN, respondent.
x ---------------------------------------------------- x
G.R. No. 170301
December 5, 2006
SUI SOAN S. CHENG a.k.a. CHENG SUI SOAN, petitioner,
vs.
VETTE INDUSTRIAL SALES CO., INC., KENNETH TAN, ESTRELLA CHENG, LUISITO
RAMOS, YVETTE TAN, KESSENTH CHENG, VEVETTE CHENG and FELESAVETTE
CHENG, respondents.
DECISION
YNARES-SANTIAGO, J.:
These consolidated Petitions for Review on Certiorari1 assail the Decision2 dated September
22, 2005 of the Court of Appeals in CA-G.R. SP No. 88863 entitled, "Vette Industrial Sales,
Company, Inc., Kenneth Tan, Estrella Cheng, Luisito Ramos, Yvette Tan, Kessenth Cheng,
Vevette Cheng, and Felesavette Cheng, Petitioners versus Hon. Regional Trial Court of
Manila, Branch 173, and Sui Soan S. Cheng a.k.a. Cheng Sui Soan, Respondents." Also
assailed is the Resolution3 dated October 27, 2005 denying petitioners motion for partial
reconsideration and respondent Suis motion for reconsideration.
In his Complaint4 for specific performance and damages filed against Vette Industrial Sales
Company, Inc., Kenneth Tan, Estrella Cheng, Luisito Ramos, Yvette Tan, Kessenth Cheng,
Vevette Cheng, and Felesavette Cheng (petitioners) and docketed as Civil Case No. 03105691, Sui Soan S. Cheng a.k.a. Cheng Sui Soan (Sui) alleged that on October 24, 2001,
he executed a Deed of Assignment,5 where he transferred his 40,000 shares in the company
in favor of Kenneth Tan, Vevette Cheng, Felesavette Cheng, and Yvette Tan (PetitionersAssignees). To implement the Deed of Assignment, the company acknowledged in a
Memorandum of Agreement (MOA),6 that it owed him P6.8 million pesos, plus insurance
proceeds amounting to P760,000.00 and a signing bonus of P300,000.00. Thereafter, he
was issued 48 postdated checks but after the 11th check, the remaining checks were
dishonored by the bank. Sui also claimed that petitioners did not remit to him the insurance
proceeds, thus breaching their obligation under the MOA which entitled him to moral and
exemplary damages, and attorneys fees.
In their Answer With Compulsory Counterclaim, 7 petitioners alleged that Sui sold his shares
for only P1.00 per share which they already paid; that the MOA was unenforceable because
it was executed without authorization from the board of directors; that the MOA was void for
want of consideration; and that petitioner Kenneth Tan executed the MOA after Sui issued
threats and refused to sign the waiver and quitclaim.

After the issues were joined, pre-trial was set on July 3, 2003. 8 However, the case was first
submitted for mediation but it was referred back to the court for continuation of the
proceedings when no settlement was arrived at during mediation.
Sui thereafter filed a Motion to Set Pre-trial 9 on December 16, 2003. Petitioners received the
motion but they did not attend because there was no notice from the Court setting the pretrial date. On December 29, 2003, petitioners received two orders from the trial court. The
first Order10 allowed Sui to present evidence ex-parte, while the second Order 11 revoked the
first order after the trial court noted that "what was set for consideration on December 16,
2003 was merely a motion to set pre-trial." Thus, the trial court reset the pre-trial on January
15, 2004 but it was postponed and moved to May 21, 2004. On said date, Sui and his
counsel, Atty. Pedro M. Ferrer (Atty. Ferrer), failed to appear. Consequently, the trial court
ordered the dismissal of the case without prejudice on the part of petitioners to present and
prove their counterclaim and set the hearing for reception of evidence on June 22, 2004.12
Atty. Ferrer filed a Manifestation and Motion for Reconsideration13 of the order of dismissal,
explaining that he arrived late for the hearing because he had to drop by his office to get the
case folder because he had just arrived from South Cotabato where he served as Chief
Counsel in the Provincial Board of Canvassers for Governor Datu Pax Mangudadatu and
Congressman Suharto Mangudadatu.
The trial court required petitioners to file their Comment on the Manifestation and Motion for
Reconsideration. In their Opposition,14 petitioners asserted that the motion for
reconsideration be denied outright because (1) Sui did not comply with the three-day notice
rule which is mandatory under Section 4, Rule 15 of the Rules of Court considering that
petitioners received the manifestation and motion for reconsideration only one day prior to
the date of hearing of the motion for resolution, thus the same must be treated as a mere
scrap of paper; (2) the trial court did not comply with Section 6 of Rule 15 of the Rules 15
when it acted on the manifestation and motion of Sui despite the latters failure to submit
proof of receipt by petitioners of the manifestation and motion; (3) the negligence of counsel
binds the client, thus, when Atty. Ferrer arrived late for the hearing, the trial court correctly
dismissed the complaint; and (4) the explanation of Atty. Ferrer is unacceptable because
traffic gridlocks are daily events in the metropolis, thus, Atty. Ferrer should have left his place
early.
In his Reply,16 Sui averred that the motion complied with Section 5 of Rule 15 of the Rules 17
and that the setting of the hearing of the motion on May 28, 2004 was within the three day
period for it was filed on May 25, 2004. He added that the same was not heard because the
trial court allowed petitioners to file a comment on the manifestation and motion for
reconsideration, which was received by the latter prior to the said setting.
In an Order dated December 16, 2004,18 the trial court granted Suis motion for
reconsideration and set aside the dismissal of the complaint, the dispositive portion of which
provides:
WHEREFORE, prescinding with such ruling and in the interest of substantial justice,
plaintiffs motion is GRANTED and the order dated May 21, 2004 is hereby lifted and set
aside with the warning that any delay in this proceedings will not be countenanced by the
Court.
Set pre-trial anew on February 15, 2005.
Notify the parties.
SO ORDERED.19
The trial court cited Ace Navigation Co., Inc. v. Court of Appeals,20 which held that since
rules of procedure are mere tools designed to facilitate the attainment of justice, their strict

and rigid application which would result in technicalities that tend to frustrate rather than
promote substantial justice must always be avoided the dismissal of an appeal on purely
technical ground is frowned upon especially if it will result to unfairness.
The Motion for Reconsideration21 filed by petitioners was denied by the trial court 22 hence
they filed a Petition for Certiorari23 with the Court of Appeals which granted the petition, thus:
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the writ applied for is partly GRANTED.
The assailed orders must be, as they hereby are, VACATED and SET ASIDE, and another
hereby issued dismissing the instant complaint, but "without prejudice." This means that the
complaint can be REINSTATED. On the other hand, petitioners are hereby given leave to
present before the Trial Court evidence of their counterclaim. Without costs in this instance.
SO ORDERED.24
The Court of Appeals noted that both Atty. Ferrer and Sui were not in attendance at the pretrial conference; that Section 5 of Rule 18 mentions only the effect of the failure to appear on
the part of "the plaintiff" but is silent on the effect of failure of the partys counsel to appear at
the pre-trial; that the Manifestation and Motion for Reconsideration 25 mentioned only the
reasons why Atty. Ferrer was absent without stating that he was fully authorized in writing to
enter into an amicable settlement, or to submit to alternative modes of dispute resolution, or
to enter into stipulations or admissions of facts and of documents; and that there was no
explanation for Suis nonappearance. Thus, based on these circumstances, the Court of
Appeals held that dismissal of the case is proper but without prejudice to the filing of a new
action.26
Both parties moved for reconsideration but the same were jointly denied in a Resolution
dated October 27, 2005.
Hence, these consolidated Petitions.
In G.R. No. 170232, petitioners raise the following errors:
I.
THE COURT OF APPEALS ERRED IN NOT DISMISSING THE COMPLAINT OF
RESPONDENT CHENG IN CIVIL CASE NO. 03-105691 WITH PREJUDICE.
II.
THE COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENTS COUNSEL
FAILED TO APPRECIATE THE BASIC RULES ON PRE-TRIAL.
III.
THE COURT OF APPEALS ERRED IN NOT CONSIDERING THE MISTAKE OR
NEGLIGENCE OF RESPONDENTS COUNSEL AS BINDING ON THE RESPONDENT
HIMSELF.
IV.
THE COURT OF APPEALS ERRED IN APPLYING THE RULINGS OF THE HONORABLE
COURT IN THE DE LOS REYES VS. CAPULE (102 PHIL. 464) AND SUAREZ VS. COURT
OF APPEALS (220 SCRA 274) CASES.
V.
THE COURT OF APPEALS ERRED IN NOT CONSIDERING RESPONDENTS
MANIFESTATION AND MOTION FOR RECONSIDERATION DATED MAY 21, 2004 FILED
BEFORE THE TRIAL COURT AS A MERE SCRAP, AND A USELESS PIECE, OF PAPER
AND IN NOT CONSIDERING THE ORDER DATED MAY 21, 2004 OF THE TRIAL COURT
AS ALREADY FINAL IN VIEW OF THE PROCEDURAL INVALIDITY/DEFECTIVENESS (I.E.
IT FAILED TO COMPLY WITH SECTIONS 4 AND 6 OF THE RULES) OF RESPONDENTS
MANIFESTATION AND MOTION FOR RECONSIDERATION DATED MAY 21, 2004.
In G.R. No. 170301, Sui raises the following issues, thus:

I. THE COURT OF APPEALS ERRED IN NOT RULING THAT THE NON-APPEARANCE OF

PETITIONER IN THE PRE-TRIAL MAY BE EXCUSED FOR A VALID CAUSE.
II. THE COURT OF APPEALS ERRED IN NOT RULING THAT THE CASE OF ACE
NAVIGATION CO. INC. VS. COURT OF APPEALS IS SQUARELY APPLICABLE TO THE
INSTANT CASE.
The core issue for resolution is whether the Court of Appeals erred in dismissing without
prejudice Civil Case No. 03-105691 and in ruling that the trial court committed grave abuse
of discretion when it granted Suis motion for reconsideration to set aside the order of
dismissal of the complaint.
The judge has the discretion whether or not to declare a party non-suited. 27 It is, likewise,
settled that the determination of whether or not an order of dismissal issued under such
conditions should be maintained or reconsidered rests upon the sound discretion of the trial
judge.28 The next question to be resolved is whether there was grave abuse of discretion of
the trial judge. We hold that there was none.
The case of Estate of Salud Jimenez v. Philippine Export Processing Zone 29 discussed the
propriety of filing a Petition for Certiorari under Section 1 of Rule 65 of the Rules of Court,
thus:
A petition for certiorari is the proper remedy when any tribunal, board, or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal,
nor any plain, speedy, and adequate remedy at law. Grave abuse of discretion is defined as
the capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. An
error of judgment committed in the exercise of its legitimate jurisdiction is not the same as
"grave abuse of discretion." An abuse of discretion is not sufficient by itself to justify the
issuance of a writ of certiorari. The abuse must be grave and patent, and it must be shown
that the discretion was exercised arbitrarily and despotically.
As a general rule, a petition for certiorari will not lie if an appeal is the proper remedy thereto
such as when an error of judgment as well as of procedure are involved. As long as a court
acts within its jurisdiction and does not gravely abuse its discretion in the exercise thereof,
any supposed error committed by it will amount to nothing more than an error of judgment
reviewable by a timely appeal and not assailable by a special civil action of certiorari.
However, in certain exceptional cases, where the rigid application of such rule will result in a
manifest failure or miscarriage of justice, the provisions of the Rules of Court which are
technical rules may be relaxed. Certiorari has been deemed to be justified, for instance, in
order to prevent irreparable damage and injury to a party where the trial judge has
capriciously and whimsically exercised his judgment, or where there may be danger of clear
failure of justice, or where an ordinary appeal would simply be inadequate to relieve a party
from the injurious effects of the judgment complained of.30 (Emphasis supplied)
Lack of jurisdiction and excess of jurisdiction are distinguished thus: the respondent acts
without jurisdiction if he does not have the legal power to determine the case; where the
respondent, being clothed with the power to determine the case, oversteps his authority as
determined by law, he is performing a function in excess of his jurisdiction. 31 Thus, we now
discuss whether the trial court granted the motion for reconsideration of Sui and reinstated
the complaint without basis in law. Citing the case of Ace Navigation Co., Inc. v. Court of
Appeals,32 the trial court held that rules of procedures are mere tools designed to facilitate
the attainment of justice and must be relaxed if its strict and rigid application would frustrate
rather than promote substantial justice. Thus, it lifted and set aside its order of dismissal in

the interest of substantial justice, which is the legal basis for the trial court to grant the
motion for reconsideration of Sui.
We have repeatedly warned against the injudicious and often impetuous issuance of default
orders.33 While it is desirable that the Rules of Court be faithfully observed, courts should not
be so strict about procedural lapses that do not really impair the proper administration of
justice. If the rules are intended to ensure the proper and orderly conduct of litigation, it is
because of the higher objective they seek which is the attainment of justice and the
protection of substantive rights of the parties. Thus, the relaxation of procedural rules, or
saving a particular case from the operation of technicalities when substantial justice requires
it, as in the instant case, should no longer be subject to cavil.34
When the Court of Appeals held that the case is dismissible because Sui did not attend the
pre-trial conference, it failed to consider the explanation of Atty. Ferrer that Sui executed a
"Special Power of Attorney" in his behalf and that he was not absent on the scheduled pretrial but was only late.
Under Section 4 of Rule 18 of the Rules, 35 the non-appearance of a party at the pre-trial may
be excused when there is a valid cause shown or when a representative shall appear in his
behalf, and is fully authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or admissions of facts
and of documents. Although Sui was absent during the pre-trial, Atty. Ferrer alleged that he
was fully authorized to represent Sui. Moreover, it is not entirely accurate to state that Atty.
Ferrer was absent during the pre-trial because he was only late, the reasons for which he
explained in his Manifestation and Motion for Reconsideration. The circumstances attendant
in the instant case compel this Court to relax the rules of procedure in the interest of
substantial justice.
Petitioners claim that the motion for reconsideration of Sui was procedurally defective
because it was not served three days before the date of the hearing and no proof of service
was given to the court, in violation of Sections 4 and 6 of Rule 15. Petitioners also aver that
they received the Manifestation and Motion for Reconsideration of Sui on May 27, 2004 but
the hearing was scheduled on May 28, 2004. Thus, it is nothing but a scrap of paper
because it violated the three-day notice rule.
We are not persuaded.
In the instant case, we find that the purpose of a notice of hearing had been served. In
Vlason Enterprises Corporation v. Court of Appeals,36 we enumerated the exceptions to the
rule on notice of hearing, to wit:
The Court has consistently held that a motion which does not meet the requirements of
Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper,
which the clerk of court has no right to receive and the trial court has no authority to act
upon. Service of a copy of a motion containing a notice of the time and the place of hearing
of that motion is a mandatory requirement, and the failure of movants to comply with these
requirements renders their motions fatally defective. However, there are exceptions to the
strict application of this rule. These exceptions are as follows:
"x x x Liberal construction of this rule has been allowed by this Court in cases (1) where a
rigid application will result in a manifest failure or miscarriage of justice; especially if a party
successfully shows that the alleged defect in the questioned final and executory judgment is
not apparent on its face or from the recitals contained therein; (2) where the interest of
substantial justice will be served; (3) where the resolution of the motion is addressed solely
to the sound and judicious discretion of the court; and (4) where the injustice to the adverse

party is not commensurate [to] the degree of his thoughtlessness in not complying with the
procedure prescribed."
The present case falls under the first exception. Petitioner was not informed of any cause of
action or claim against it. All of a sudden, the vessels which petitioner used in its salvaging
business were levied upon and sold in execution to satisfy a supposed judgment against it.
To allow this to happen simply because of a lapse in fulfilling the notice requirement which,
as already said, was satisfactorily explained would be a manifest failure or miscarriage of
justice.
A notice of hearing is conceptualized as an integral component of procedural due process
intended to afford the adverse parties a chance to be heard before a motion is resolved by
the court. Through such notice, the adverse party is permitted time to study and answer the
arguments in the motion.
Circumstances in the case at bar show that private respondent was not denied procedural
due process, and that the very purpose of a notice of hearing had been served. On the day
of the hearing, Atty. Desierto did not object to the said Motion for lack of notice to him; in fact,
he was furnished in open court with a copy of the motion and was granted by the trial court
thirty days to file his opposition to it. These circumstances clearly justify a departure from the
literal application of the notice of hearing rule. In other cases, after the trial court learns that
a motion lacks such notice, the prompt resetting of the hearing with due notice to all the
parties is held to have cured the defect.
Verily, the notice requirement is not a ritual to be followed blindly. Procedural due process is
not based solely on a mechanistic and literal application that renders any deviation
inexorably fatal. Instead, procedural rules are liberally construed to promote their objective
and to assist in obtaining a just, speedy and inexpensive determination of any action and
proceeding. For the foregoing reasons, we believe that Respondent Court committed
reversible error in holding that the Motion for Reconsideration was a mere scrap of
paper.37(Emphasis supplied)
When the trial court received Suis Manifestation and Motion for Reconsideration, it did not
immediately resolve the motion. Instead, it allowed petitioners to file their comment and also
leave to file a rejoinder if Sui files a reply.38These circumstances justify a departure from the
literal application of the rule because petitioners were given the opportunity to study and
answer the arguments in the motion.
Petitioners claim that Sui failed to attach proof of service in violation of Section 6, Rule 15 of
the Rule, must fail. In Republic of the Philippines v. Court of Appeals,39 we held, thus:
Nonetheless, considering the question raised in the appeal of the government and the
amount involved in this case, we think the Court of Appeals should have considered the
subsequent service of the motion for reconsideration to be a substantial compliance with the
requirement in Rule 15, 6. In De Rapisura v. Nicolas, the movant also failed to attach to his
motion for reconsideration proof of service of a copy thereof to the other party. Nonetheless,
this Court held the failure not fatal as the adverse party had actually received a copy of the
motion and was in fact present in court when the motion was heard. It was held that the
demands of substantial justice were satisfied by the actual receipt of said motion under
those conditions.40
Petitioners admitted that they received a copy of Suis Manifestation and Motion for
Reconsideration. In fact, they had the opportunity to oppose the same. Under these
circumstances, we find that the demands of substantial justice and due process were
satisfied.

It is the policy of the Court to afford party-litigants the amplest opportunity to enable them to
have their cases justly determined, free from the constraints of technicalities. 41 It should be
remembered that rules of procedure are but tools designed to facilitate the attainment of
justice, such that when rigid application of the rules tend to frustrate rather than promote
substantial justice, this Court is empowered to suspend their operation.42
WHEREFORE, in view of the foregoing, the Decision dated September 22, 2005 and the
Resolution dated October 27, 2005 of the Court of Appeals in CA-G.R. SP No. 88863 is
REVERSED and SET ASIDE. The Order of the Regional Trial Court in Civil Case No. 03105691, lifting its previous order of dismissal is REINSTATED and AFFIRMED.
SO ORDERED.
Panganiban, C.J. (Chairperson), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ.,
concur.

----------------------------------------------------------------------------Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 84195
December 11, 1989
LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS,
DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN
KEE HION, (Represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY
C. TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHAO, MANUEL KHOO,
MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO C. RANOLA, WILLIAM T.
WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA AND WILLY CO, petitioners,
vs.
SANDIGANBAYAN (Second Division), and the REPUBLIC OF THE PHILIPPINES,
(Represented by the Presidential Commission on Good Government), respondents.
Ocampo, Quiroz, Mina & Associates for petitioners.
SARMIENTO, J.:
We give DUE COURSE to this petition filed by the petitioners . We also consider the
comment filed by the Solicitor General as the Government's answer.
The petitioners, twenty-two in number, assail the action of the Sandiganbayan, denying their
"Motion for a More Definite Statement or a Bill of Particulars" directed against the Complaint
filed by the Presidential Commission on Good Government (PCGG).
The Complaint, dated July 17, 1987, was filed in July, 1987, by the PCGG against the
twenty-two petitioners, together with the late Ferdinand Marcos, Mrs. Imelda Marcos, Don
Ferry, and Federico Moreno. The same prayed for judgment as follows:
WHEREFORE, it is respectfully prayed that this Honorable Court render judgment adjudging
and ordering Defendants as follows:
29. AS TO THE FIRST, SECOND AND THIRD CAUSES OF ACTION -To return and
reconvey to Plaintiff all funds and other property impressed with constructive trust in favor of
Plaintiff and the Filipino people, as well as funds and other property acquired by Defendants
by abuse of right and power and through unjust enrichment; or alternatively to jointly and

severally pay Plaintiff the value thereof with interest thereon from the date of unlawful
acquisition until full payment.
30.
AS TO THE FOURTH CAUSE OF ACTION- To show to the satisfaction of this
Honorable Court that they have lawfully acquired all such funds, assets and property which
are in excess of their legal net income, and for this Honorable Court to decree that the
Defendants are under obligation to account to Plaintiff with respect to all legal or beneficial
interests in funds, properties and assets of whatever kind and wherever located in excess of
the lawful earnings or lawful income from legitimately acquired property.
31. AS TO THE FIRST, SECOND, THIRD, FOURTH, AND FIFTH CAUSES OF ACTION TO
solidarily pay Plaintiff:
a) Actual Damages in such amount as are proven during the trial;
b) Moral Damages in the amount of FIFTY BILLION (P 50,000,000,000.00) PESOS;
c) Temperate Damages in such amount as may be determined by the Honorable Court in the
exercise of its sound discretion;
d) Nominal Damages in such amount as may be determined by the Honorable Court in the
exercise of its sound discretion;
e) Exemplary Damages in the amount of ONE BILLION (P l,000,000,000.00) PESOS;
f)
Attorney's Fees in such amount to be proven during the trial;
g)
Litigation expenses in such amount as may be proven during the trial;
h)
Treble judicial costs.
Plaintiff further prays for such further relief as may appear to the Honorable Court to be just
and equitable under the premises. 1
Subsequently, the PCGG filed a "Complaint Expanded per Court-Approved Plaintiff's
Manifestation/Motion dated December 8,1987." That notwithstanding, the twenty-two
petitioners (the Marcoses never joined them, neither did Don Ferry nor Federico Moreno)
moved, as indicated above, for a bill of particulars.
The pertinent portions of the Complaint for which a bill of particulars is sought, and insofar as
material to this petition, are hereinbelow reproduced as follows:
VI
CAUSES OF ACTION
16.
First Cause of Action: ABUSE OF RIGHT AND POWER. - (a) Defendants, in
perpetrating the unlawful acts described above, committed abuse of right and power which
caused untold misery, sufferings and damages to Plaintiff. Defendants violated, among
others, Articles 19, 20, and 21 of the Civil Code of the Philippines ;
(b)
As a result of the foregoing acts, Defendants acquired title to and beneficial interest
in funds and other property and concealed such title, funds and interest through the use of
relatives, business associates, nominees, agents, or dummies. Defendants are, therefore,
jointly and severally liable to Plaintiff to return and reconvey all such funds and other
property unlawfully acquired by them or alternatively, to pay Plaintiff, jointly and severally by
way of indemnity, the damage caused to Plaintiff equivalent to the amount of such funds or
the value of other property not returned or restored to Plaintiff, plus interest thereon from the
date of unlawful acquisition until full payment thereof.
17.
Second Cause of Action: UNJUST ENRICHMENT Defendants illegally accumulated
funds and other property in violation of the laws of the Philippines and in breach of their
official functions and fiduciary obligations. Defendants, therefore, have unjustly enriched
themselves to the grave and irreparable damage and prejudice of Plaintiff. Defendants have
an obligation at law, independently of breach of trust and abuse of right and power and, as
an alternative, are jointly and severally liable to return to Plaintiff such funds and other

property with which Defendants, in gross evident bad faith, have unjustly enriched
themselves or, in default thereof, restore to Plaintiff the amount of such funds and the value
of the other property including those which may have been wasted, and/or lost with interest
thereon from the date of unlawful acquisition until full payment thereof.
18.
Third cause of Action: BREACH OF PUBLIC TRUST A public office is a public trust.
By committing all the acts described above. Defendants, repeatedly breached public trust
and the law, making them liable jointly and severally to Plaintiff. The funds and other
property acquired by Defendants following, or as a result of, their breach of public trust, are
deemed to have been acquired for the benefit of Plaintiff and are, therefore, impressed with
constructive trust in favor of Plaintiff and the Filipino people. Consequently, Defendants are
solidarity liable to restore or reconvey to Plaintiff all such funds and property thus impressed
with constructive trust for the benefit of Plaintiff and the Filipino people.
19. Fourth Cause of action: ACCOUNTING the Commission, acting pursuant to the
provisions of applicable law, respectfully maintain that Defendants, acting singly or
collectively, in unlawful concert with one another, acquired funds, assets and property during
the incumbency of Defendant public officers, or while acting in unlawful concert with public
officers, manifestly out of proportion to their salaries, to their other lawful income and income
from legitimately acquired property. Consequently, they are required to show to the
satisfaction of this Honorable Court that they have lawfully acquired all such funds, assets
and property which are in excess of their legal net income, and for this Honorable Court to
decree that the Defendants are under obligation to account to Plaintiff with respect to all
legal or beneficial interests in funds, properties and assets of whatever kind and wherever
located in excess of the lawful earnings of lawful income from legitimately acquired property.
20. Fifth Cause of Action: LIABILITY FOR DAMAGES (a) By reason of the unlawful acts set
forth above, Plaintiff and the Filipino people have suffered actual damages in an amount
representing the pecuniary loss sustained by the latter as a result of Defendants' unlawful
acts, plus expenses which Plaintiff has been compelled to incur and shall continue to incur in
its effort to recover Defendants' ill-gotten wealth all over the world, Defendants are,
therefore, jointly and severally liable to Plaintiff for actual damages and to reimburse
expenses for recovery of Defendants' ill-gotten wealth all over the world in such amounts as
are proven during the trial.
(b)
As a result of Defendants' unlawful, malicious, immoral and wanton acts described
above, Plaintiff and the Filipino people had, for more than twenty long years, painfully
endured and suffered and continue to endure and suffer anguish, fright, sleepless nights,
serious anxiety, wounded feelings and moral shock, as well as besmirched reputation and
social humiliation before the international community, for which Defendants are jointly and
severally liable to Plaintiff and the Filipino people for moral damages;
(c) In addition, Plaintiff and the Filipino people are entitled to temperate damages for their
sufferings which, by their very nature, are incapable of pecuniary estimation but which this
Honorable Court may determine in the exercise of its sound discretion;
(d) Defendants, by reason of the above described unlawful acts, have violated and invaded
the inalienable right of Plaintiff and the Filipino people to a fair and decent way of life befitting
a Nation with rich natural and human resources. This basic and fundamental right of Plaintiff
and the Filipino people should be recognized and vindicated by awarding nominal damages
in an amount to be determined by the Honorable Court in the exercise of its sound
discretion.

(e)
By way of example and correction for the public good and in order to ensure that
Defendants' unlawful, malicious, immoral and wanton acts are not repeated, said
Defendants are solidarily liable to Plaintiff for exemplary damages . 2
On April 14, 1988, the respondent Court promulgated a Resolution denying the petitioners'
motion. On July 13, 1988, it issued a second one denying reconsideration.
The petitioners submit, in a nutshell, that the PCGG's averments are made up of bare
generalizations, presumptuous conclusions of fact and law, and plain speculations, for which
a motion for a more definite statement or for a bill of particulars allegedly lies.
The Sandiganbayan's dispositions are as follows:
From the foregoing it can readily be seen that We have set out fully and in detail the
particulars and specifications being sought by defendants- movants in order to show in a
much broader perspective the factual basis relied upon to justify the relief sought in their
motion. A careful and meticulous examination thereof, as well as the pertinent portions of the
Expanded Complaint (Pp. 673-692, Ibid.) readily shows that Paragraphs 1 to 9, inclusive, fall
under the headings "Nature Of The Action," "The Parties" and "Averments Common To All
Causes of Action" hence, they do not constitute an inherent or integral part of the causes of
action, similarly as in Paragraphs 10 to 13 inclusive, which fall under the heading "IV.
General Averments Of Defendants' Illegal Acts". Hence, as aptly pointed out by plaintiff, they
serve merely to present the factual backdrop or scenario leading to Paragraphs 14 to 15,
inclusive which set out iii detail the "Specific Averments Of Defendants' Illegal Acts" and to
which latter paragraphs the motion may, therefore, be properly addressed.
Correlating the specific averments in Paragraphs 14 to 15, inclusive, to the five (5) Causes
of Action described in Paragraphs 16 to 20, inclusive, We are of the considered opinion that
Paragraphs 14 to 15, inclusive, of the Expanded Complaint had already supplied or provided
the specifications and particulars theretofore lacking in the original Complaint. Therein,
defendants-movants herein, particularly defendants Lucio C. Tan, Willy Co, Florencio T.
Santos, Mariano Tan Eng Lian, Domingo Chua and Mariano Khoo, together with their codefendants-movants, are alleged to have actively collaborated and willingly participated in
multi-varied and inter-related business/corporate/individual acts and practices involving the
General Bank and Trust Company (now Allied Banking Corporation), the Central Bank of the
Philippines, the Asia Brewery, Inc., Fortune Tobacco Co., Shareholdings, Inc., Foremost
Farms, Inc., Himmel Industries, Inc., Grandspan Development Corporation, Silangan, Inc.,
Maranaw Hotel and Resorts, Corp., Sipalay Trading Corporation, The Development
Corporation of the Philippines, Northern Redrying Co., Inc. and the Virginia Tobacco
Administration. The nature, scope and consequences of such acts and practices, insofar as
they involve or affect the operations of the above-named firms, entities or corporations,
again insofar as they constitute alleged violations of plaintiffs rights and interests, are
outlined in vivid detail, complete with names, dates, facts and figures in Paragraph 14 (a) (13), (b), (c), (d), (e) (1-5), (f), (g) and (h). The specific roles and participation of defendantsmovants are likewise averred in the particular sub-paragraphs which relate to the firms,
entities and corporations affected. In short, each and every defendant-movant can clearly
see where, how and why he or she is being held liable or responsible for the particular act or
acts attributed to them, singly or collectively. 3
We sustain the respondent, the Sandiganbayan.
Under section 1, of Rule 12, of the Rules of Court, supra, thus:
SECTION 1. Motion for bill of particulars before responding to a pleading or, if no responsive
pleading is permitted by these rules, within ten (10) days after service of the pleading upon
him, a party may move for a more definite statement or for a bill of particulars of any matter

which is not averred with sufficient definiteness or particularity to enable him properly to
prepare his responsive pleading or to prepare for trial. Such motion shall point out the
defects complained of and the details desired.
A bill of particulars becomes part of the pleadings once accepted, thus:
(a)
Bill a part of pleading. A bill of particulars becomes a part of the pleading which it
supplements. It shall be governed by the rules of pleading and the original shall be filed with
the clerk of the court. 4
A seasonable motion therefor interrupts the period within which to answer:
(b) Stay of period to file responsive pleading- After service of the bill of particulars or of a
more definite pleading, or after notice of denial of his motion, the moving party shall have the
same time to serve his responsive pleading, if any is permitted by these rules, as that to
which he was entitled at the time of serving his motion, but not less than five (5) days in any
event. 5
If the motion is filed beyond that period, it should rightly be denied . 6 Where it is, however,
filed on time, whether or not the movant succeeds in his motion, he, the movant, has, as
above-indicated, "the same time to serve his responsive pleading . . . as that to which he
was entitled ... but not less than five (5) days in any event. 7
Pending the resolution of these questions, the issues of the case can not be said to have
been joined, and a party's failure to attend subsequent hearings does not amount to failure
to prosecute. 8
A motion for a bill of particulars, not a motion to dismiss, is the proper remedy against a
deficient pleading. 9 In one case, 10 it was held that in that event, a motion to dismiss for
failure to state a cause of action should be treated as a motion for a bill of particulars. 11
In a recent case, 12 it was held that a motion for a bill of particulars may be granted where
the complaint fails to state in what capacity the plaintiffs sue.
The proper office of a bill of particulars is "to inform the opposite party and the court of the
precise nature and character of the cause of action . . . the pleader has attempted to set
forth, and thereby to guide his adversary in his preparations for trial and reasonably protect
him against surprise at the trial." 13 It complements the rule on pleadings in general, that is,
that the complaint should consist of a "concise statement of the ultimate facts ." 14 Its
admission, finally, is subject to the sound discretion of the judge, unless discretion has been
exercised with palpable abuse. 15
It has also been held that:
xxx
xxx
xxx
It is the office or function, as well as the object or purpose, of a bill of particulars to amplify or
limit a pleading, specify more minutely and particularly a claim or defense set up and
pleaded in general terms, give information, not contained in the pleading, to the opposite
party and the court as to the precise nature, character, scope, and extent of the cause of
action or defense relied on by the pleader, and apprise the opposite party of the case which
he has to meet, to the end that the proof at the trial may be limited to the matters specified,
and in order that surprise at, and needless preparation for, the trial may be avoided, and that
the opposite party may be aided in framing his answering pleading and preparing for trial. It
has also been stated that it is the function or purpose of a bill of particulars to define, clarify,
particularize, and limit or circumscribe the issues in the case, to expedite the trial, and assist
the court. A general function or purpose of a bill of particulars is to prevent injustice or do
justice in the case when that cannot be accomplished without the aid of such a bill.
It is not the office of a bill of particulars to supply material allegations necessary to the
validity of a pleading, or to change a cause of action or defense stated in the pleading, or to

state a cause of action or defense other than the one stated. Also it is not the office or
function, or a proper object, of a bill of particulars to set forth the pleader's theory of his
cause of action or a rule of evidence on which he intends to rely, or to furnish evidential
information whether such information consists of evidence which the pleader proposes to
introduce or of facts which constitute a defense or offset for the other party or which will
enable the opposite party to establish an affirmative defense not yet pleaded. 16
The complaint for which a bill for a more definite statement is sought, need only inform the
defendant of the essential (or ultimate) facts to enable him, the defendant, to prepare an
intelligent answer. 17 As we indicated, its primary objective is to apprise the adverse party of
what the plaintiff wants to preclude the latter from springing a surprise attack later. Any more
"particulars", in that event, would be evidentiary in character, which must be adduced at the
trial proper.
It is noteworthy that in Bataan Shipyard & Engineering Co., Inc. v. Presidential Commission
on Good Government,18 we upheld the sequestration of the Bataan Shipyard & Engineering
Co., Inc., upon a prima facie showing that the PCGG had a good case against the shipping
firm, or otherwise, that:
xxx
xxx
xxx
1)
that "(i) ill-gotten properties (were) amassed by the leaders and supporters of the
previous regime;"
a)
more particularly, that "(i) ill-gotten wealth (was) accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, ...
located in the Philippines or abroad, ... (and) business enterprises and entities (came to be)
owned or controlled by them, during ... (the Marcos) administration, directly or through
nominees, by taking undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship;
b) otherwise stated, that "there are assets and properties purportedly pertaining to former
President Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their close
relatives, subordinates, business associates, dummies, agents or nominees which had been
or were acquired by them directly or indirectly, through or as a result of the improper or
illegal use of funds or properties owned by the Government of the Philippines or any of its
branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue
advantage of their office, authority, influence, connections or relationship, resulting in their
unjust enrichment and causing grave damage and prejudice to the Filipino people and the
Republic of the Philippines;"
c)
that "said assets and properties are in the form of bank accounts, deposits, trust
accounts, shares of stocks, buildings, shopping centers, condominiums, mansions,
residences, estates, and other kinds of real and personal properties in the Philippines and in
various countries of the world;" and
2)
that certain "business enterprises and properties (were) taken over by the
government of the Marcos Administration or by entities or persons close to former President
Marcos." 19
It must be stressed, however, that the above conclusions are but prima facie
demonstrations, which must be proved at the trial.
We are satisfied in this case that the PCGG has made out a sufficient complaint against the
petitioners. It was filed pursuant to Executive Order No. 1 as amended, and is to be tried on
the theory that the petitioners are guilty of accumulating ill-gotten wealth. But as we put it in
the COCOFED case, supra, and as we stated above, the sufficiency of the complaint is one
thing and the merits thereof are another. The latter is not the question before us.

We also sustain the Sandiganbayan because the PCGG's complaint (as amended); from our
vantage point, does set out allegations, however confusingly put in print, which, interrelated
to one another, are enough to support a formal civil charge. If the petitioners are not aware
of the PCGG's asseverations, the remedy, so we hold, is to deny the same in their answer
for lack of "knowledge or information sufficient to form a belief as to the truth of 20 the said
averments. They can not, however, demand for any more particulars without actually making
the PCGG expose its evidence unnecessarily before the trial stage.
A reading, indeed, of paragraphs four through six, and paragraph fourteen, of the PCGG's
Complaint illustrates enough semblance of logic, as to what the Republic wants from the
petitioners. We quote:
xxx
xxx
xxx
4. Defendant LUCIO C. TAN was a business partner of Defendant Ferdinand E. Marcos.
Defendants Ferdinand E. Marcos and Lucio C. Tan had agreed that the former would own
60% of Shareholdings, Inc., which in turn, beneficially held and/or controlled substantial
shares of Fortune Tobacco, Asia Beer Brewery, Allied Banking Corporation and Foremost
Farms. Apart from said 60% beneficial interest of Defendant Ferdinand E. Marcos,
Defendant Lucio Tan yearly paid the former sums of money from 1980 to 1986, in exchange
for privileges and concessions which said Defendant Ferdinand E. Marcos gave Defendant
Lucio C. Tan, as more particularly described in paragraph 13 of this Complaint. The latter,
Defendant Lucio C. Tan, is a resident of Quezon City and may be served with summons and
other court processes at 30 Biak-na-Bato St., Sta. Mesa Heights, Quezon City.
5.
Defendants FERDINAND E. MARCOS and IMELDA R. MARCOS are spouses. They
may be served with summons and other court processes either (i) at their last known
address at Don Mariano Marcos St., Cor. P. Guevarra Street, San Juan, Metro Manila; (ii) at
6577 Kalanianaole Highway, Honolulu, Hawaii, United States of America, at which two
Hawaii addresses they now temporarily reside, even as they remain residents and citizens of
the Philippines.
6. The following Defendants acted as dummies, nominees, or agents, by allowing
themselves to be incorporators, directors, board members and/or stockholders of
corporations held and/or controlled by Defendants Lucio C. Tan, Ferdinand E. Marcos and
Imelda R. Marcos. Said Defendants enumerated below may be served with summons and
other court processes at the respective addresses appearing opposite their names:
xxx
xxx
xxx
14.
Defendant Lucio C. Tan, by himself and/or in unlawful concert with Defendants
Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of his relationship
and influence with Defendant Spouses, among others:
(a) without sufficient collateral and for a nominal consideration, with the active collaboration,
knowledge and willing participation of Defendant Willy Co, arbitrarily and fraudulently
acquired control of the General Bank and Trust Company which eventually became Allied
Banking Corporation, through then Central Bank Governor Gregorio Licaros, as shown by,
but not limited to, the following circumstances:
(1) In 1976, the General Bank and Trust Company (GBTC, for short) got into financial
difficulties. The Central Bank then extended an emergency loan of P350 million to GBTC. In
extending this loan, the CB however took control of GBTC when the latter executed an
Irrevocable Proxy of 2/3 of GBTC's outstanding shares in favor of the CB and when 7 of the
11 member Board of Directors were CB nominees. Subsequently, on March 25, 1977, the
Monetary Board of CB issued a Resolution declaring GBTC insolvent, forbidding it to do
business and placing it under receivership.

(2)
In the meantime, a public bidding for the sale of GBTC assets and liabilities was
scheduled at 7:00 P.M. on March 28, 1977. Among the conditions of the bidding were: (a)
submission by the bidder of Letter of Credit issued by a bank acceptable to CB to guaranty
payment or as collateral of the CB emergency loan; and (b) a 2-year period to repay the said
CB emergency loan. On March 29, 1977, CB thru a Monetary Board Resolution, approved
the bid of the group of Lucio Tan and Willy Co. This bid, among other things, offered to pay
only P 500,000.00 for GBTC assets estimated at P 688,201,301.45; Capital Accounts of P
103,984,477.55; Cash of P 25,698,473.00; and the takeover of the GBTC Head Office and
branch offices. The required Letter of Credit was not also attached to the bid.
(3)
As already stated, GBTC eventually became the Allied Banking Corporation in April,
1977. The defendants Lucio Tan, Willy S. Co and Florencio T. Santos are not only
incorporators and directors but they are also the major shareholders of this new bank.
(b) delivered to Defendant Spouses Ferdinand and Imelda Marcos, sometime in July, 1979
or thereafter, substantial beneficial interests in shares of stock worth about P 50 million
pesos in the Asia Brewery, Inc. through dummies, nominees or agents, with the active
collaboration, knowledge and willing participation of Defendants Florencio T. Santos as then
President, Mariano Tan Eng Lian as then Treasurer, and Domingo Chua and Mariano Khoo
as then Directors, of the Asia Brewery, Inc. in consideration of substantial concessions which
their varied business ventures were unduly privileged to enjoy, such as but not limited to, the
grant of dollar allocation amounting to about U.S. $ 6,934,500.00.
(c)
gave improper payments such as gifts, bribes, commissions, and/or guaranteed
"dividends" to said Defendant spouses in various sums, such as P 10 M in 1980, P 10 M in
1981, P 20 M in 1982, P 40 M in 1983, P 40 M in 1984, P 50 M in 1985, P 50 M in 1986, in
consideration of Defendant Spouses continued support of Defendant Lucio Tan's diversified
business ventures and/or Defendant Spouses ownership or interest in said diversified
business ventures, such as Allied Banking Corporation, Asia Brewery, Inc., Fortune Tobacco
Co., Shareholdings, Inc., among others. Even earlier, Tan gave the amounts of P 11 million
in 1975, about P 2 million in 1977, and P 44 million in 1979, among other amounts.
(d)
sometime in May, 1979, applied for and was granted by the Central Bank "free dollar
allocation" in millions of US Dollars for the use and benefit of Asia Brewery Inc., such as for
the importation of the whole machinery set up for the proposed brewery and glass
manufacturing plants. Defendants were major stockholders and/or in which they held
substantial beneficial interest;
(e) established Shareholdings, Inc., a holding company, which in turn beneficially held and/or
controlled substantial shares of stocks in Fortune Tobacco Corporation, Asia Brewery, Inc.,
Foremost Farms, Inc., Himmel Industries, Inc., Grandspan Development Corporation,
Silangan, Inc., and Allied Banking Corporation, with the active collaboration, knowledge and
willing participation of Defendants Carmen Khao Tan, Florencio T. Santos, Natividad N.
Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee
Hiong (represented by Tarciana C. Tan), Florencio N. Santos, Jr., Harry C. Tan, Tan Eng
Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel Khoo, Jaime Khoo and
Elizabeth Khoo, who are or acted as dummy-shareholders of the Shareholdings, Inc., as well
as directors in the case of Harry Tan and Manuel Khoo, in order to prevent disclosure and
recovery of illegally obtained assets. Moreover, for the same purpose, in December, 1980,
said Defendants transferred to Shareholdings, Inc. their purported shares of stocks in
Foremost Farms, Inc., Fortune Tobacco Corporation, Asia Brewery, Inc., Himmel Industries,
Inc., Grandspan Development Corp., and Silangan Holdings, Inc.

(f)
caused losses in millions of pesos to the Development Bank of the Philippines (DBP),
a government lending institution, by unlawfully selling DBP's controlling interest in Century
Park Sheraton Hotel (Manila), owned by Maranaw Hotel and Resorts Corp., a grossly
undercapitalized company beneficially held and controlled by Lucio C. Tan, said transaction
having been facilitated with the active collaboration, knowledge and willing participation of
defendants Harry Tan and Don Ferry while the latter was then serving as Vice-Chairman of
DBP, as shown by, but not limited to, the following facts and circumstances:
(i) Sometime in 1984, Lucio C. Tan wrote defendant Ferdinand E. Marcos informing him
among other things that 'new business prospect to buy out from DBP Holding" includes the
Century Park Sheraton Hotel (Sheraton, for short). Apparently receiving favorable reaction
from Marcos, Lucio Tan organized and established on October 5, 1984 the Sipalay Trading
Corporation (Sipalay, for short), with a capitalization of P5 million. Defendant Harry C. Tan
became Chairman and President of the corporation.
(2)
Sipalay in a letter dated January 29, 1985 wrote defendant Don Ferry, as then ViceChairman of the DBP, offering to buy for U.S. $8.7 million 79% of the voting shares of the
Maranaw Hotel and Resorts Corp. (MHRC, for short), owned by DBP. On January 30, 1985,
the DBP Board approved "in principle" the above proposal to buy.
(3)
On February 26, 1985, Sipalay requested DBP to waive its requirement "to provide a
comptroller pending full payment of the purchase price". Defendant Ferry agreed to this
waiver.
(4) On March 1, 1985, DBP represented by defendant Ferry and Sipalay represented by
defendant Harry C. Tan, executed an Agreement to buy and sell-DBP to sell 78.3% of its
controlling interest in MHRC to Sipalay for a consideration of U.S. $ 8.5 million with 20% of
the purchase price as downpayment. At the same time, DBP and Sipalay also executed an
escrow agreement which stipulated that the interest earned by the escrow account would be
for the benefit of Sipalay (rather than DBP). Defendants Ferry and Harry Tan again signed
for their respective agency and corporation.
(5)
On April 22, 1985, the corresponding Deed of Sale was executed by the parties,
defendant Ferry again signing for DBP, and defendant Harry C. Tan for Sipalay. A Pledge
Agreement was likewise signed on the same date, the subject shares being pledged by
Sipalay to DBP, and the pledge to remain in full force until the full payment of the purchase
price or until Sipalay may have substituted as collateral a stand-by letter of credit to secure
the unpaid balance. Sipalay however did not turn over the subject shares to DBP.
(g) printed in or about 1981, without legal authority, BIR strips (sic) stamps worth about P7
billion pesos and affixed them on packs of cigarettes produced by Fortune Tobacco
Corporation, in violation of Section 180 of the Internal Revenue Code of 1977, thereby
defrauding the Plaintiff and the Filipino people of billions of pesos in tax receipts.
(h) established in May, 1985 the Northern Redrying Co., Inc. (NRCI) a Virginia Tobacco
Company, which on several instances in 1986 made importations and purchases of about
9,607,482.9 net kilos, in excess of the ceiling set by law, with the active collaboration of
Defendant Celso C. Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita who are
all Directors of NRCI, and at the time of the establishment of NRCI, were employees of
defendant Lucio Tan. Defendant Federico Moreno, as Chairman of the Virginia Tobacco
Administration, supervised, approved and /or permitted such importations and purchases,
15. The acts of Defendants, singly or collectively, and in unlawful concert with one another,
constitute gross abuse of official position and authority, flagrant breach of public trust and
fiduciary obligations, brazen abuse of right and power, unjust enrichment, violation of the

Constitution and laws of the Republic of the Philippines, to the grave and irreparable
damage of Plaintiff and the Filipino people. 21
In essence, these are what the PCGG says:
1.
The petitioner Lucio Tan was Mr. Marcos' business partner;
2.
Through undue influence, coercion, and abuse of light they acquired shareholdings
from various firms, and built a business empire therefrom;
3.
The remaining petitioners acted as their "dummies, nominees, or agents";
4.
Together with the Marcoses, they maneuvered their way into these firms and
acquired control thereof;
5.
The same were accomplished through unacceptable machinations such as insider
trading and similar acts, in violation of existing laws;
6. They also unjustly enriched the petitioners at the expense of the Republic of the
Philippines and the Filipino people.
The foregoing, so we find, are actionable wrongs that are proper for a complaint. We can not
accept the petitioners' pleadings that:
xxx
xxx
xxx
8. As will be noted from the above, the ultimate facts upon which each cause of action is
based are not alleged directly and particularly. Instead, they are described as "the unlawful
acts described above", "the foregoing acts", "all of the acts described above", "the unlawful
acts set forth above", and "defendants' unlawful, malicious, immoral and wanton acts
described above".
9. What the complaint does is to compel petitioners to determine which allegations in the first
fifteen paragraphs pertain to each cause of action. Petitioners are made to guess and
speculate which allegations in the first fifteen paragraphs pertain to the "first cause of action
the "second cause of action the "third cause of action the "fourth cause of action" and the
Fifth cause of action
10. It is petitioners' submission that due process requires that before a defendant is required
to answer a complaint, a common understanding must exist among the plaintiff, the
defendant, and the court as to the ultimate facts comprising each cause of action. What
respondent court has done, in denying petitioners' "Motion for a More Definite Statement or
a Bill of Particulars' (of the statement of the Causes of Action), is to allow a situation whereby
the plaintiff may have one understanding of the ultimate facts comprising each cause of
action, the defendants, possibly another understanding, and the court another view. Not only
would it be grossly unfair to compel a defendant to answer and to go to trial in such a
situation but would likely invite protracted, and perhaps, endless controversy on what the
issues really are. 22
We agree that the PCGG's Complaint/Expanded Complaint is garbled in many respects, but
this is no excuse for sloth on the part of the petitioners. The Sandiganbayan, furthermore,
has taken pains on the behest of the petitioners to interconnect, paragraph by paragraph,
the allegations of the Complaint/ Expanded Complaint in question. They, the petitioners, can
not any more be heard to insist that they are still left at a loss and in the dark. The
Complaint/Expanded Complaint is complete enough to perish fears of the PCGG pulling a
surprise subsequently.
We therefore order the remand of the case against the twenty-two petitioners and heard
without any further delay.
WHEREFORE, the petition is DISMISSED. Costs against the petitioners.
SO ORDERED.

Fernan, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes,
Grio-Aquino, Medialdea and Regalado, JJ., concur.
Narvasa, J., took no Part.
Gutierrez, Jr., J., is on leave.
--------------------------------------Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 143188
February 14, 2007
FLORENTINO PINEDA, Petitioner,
vs.
HEIRS OF ELISEO GUEVARA, represented by ERNESTO E. GUEVARA and ISAGANI S.
GUEVARA, namely: ELISEO GUEVARA, JR., ZENAIDA G. SAPALICIO, DANTE G.
GUEVARA, DANILO C. GUEVARA, and ISAGANI S. GUEVARA, Respondents.
DECISION
TINGA, J.:
On appeal by way of certiorari under Rule 45 of the 1997 Rules of Civil Procedure are the
Decision1 and Resolution of the Court of Appeals in CA-G.R. CV No. 54074. The Decision
reversed the order of dismissal of the Regional Trial Court (RTC), Branch 273, Marikina, and
directed the court a quo to conduct trial on the merits, while the Resolution denied petitioner
Pinedas motion for reconsideration.
As borne out by the records, the following are the factual antecedents.
On 7 September 1995, respondents Eliseo Guevara, Jr., Zenaida G. Sapalicio, Dante G.
Guevara and Isagani S. Guevara, collectively referred hereinafter as the Guevara heirs, filed
an action for the nullification of the certificates of title of a parcel of land measuring
approximately 2,304 hectares situated in Marikina.
Named defendants were the estate of the late Pedro Gonzales, Virginia Perez, Crisanta
Perez, Jose Perez, Roy Guadalupe, Lino Bucad and Florentino Pineda. The complaint,
docketed as Civil Case No. 95-171-MK, was raffled to Branch 273 of the RTC of Marikina.
The Guevara heirs alleged in the complaint that they were the co-owners of a property
originally covered by Original Certificate of Title (OCT) No. 386 issued on 7 December 1910
in favor of the spouses Emiliano Guevara and Matilde Crimen. The couples son, and the
Guevara heirs predecessor-in-interest, Eliseo Guevara, allegedly purchased the property on
1 January 1932 and had exercised ownership over the property since then by selling and
donating portions thereof to third persons. The Guevara heirs averred that the sale of the
property to Eliseo Guevara was annotated at the back of OCT No. 386.
According to the Guevara heirs, the defendants illegally claimed ownership and possession
over a certain portion of the property, particularly that area covered by Transfer Certificate of
Title (TCT) No. 223361 issued to the estate of Pedro C. Gonzales. TCT No. 223361 was
derived from OCT No. 629, which the Guevara heirs described as fake, having been issued
only on 26 January 1912 or subsequent to the issuance of OCT No. 386. Hence, the
Guevara heirs prayed that OCT No. 629 and its derivative titles, to wit, TCT Nos. 223361,
244447, 244448, 244449 be cancelled, that the Guevara heirs be declared owners of the
property and that a new certificate of title be issued in their names.

Defendant Pineda filed an answer with counterclaim, raising the defenses of lack of cause of
action, prescription, laches and estoppel. He averred that he was a buyer in good faith and
had been in actual possession of the land since 1970 initially as a lessor and subsequently
as an owner. He registered the property in his name and was issued TCT No. 257272.
Defendants Virginia, Crisanta, and Jose, all surnamed Perez, filed an answer with
compulsory counterclaim and averred that their father, Marcos Perez, purchased the
property from the late Pedro Gonzales and had it declared in Perezs name for taxation
purposes. According to them, they had been in actual possession of a lot measuring 375
square meters before 1958 and had been regularly paying the property taxes thereon.
The rest of the defendants, including the estate of Pedro Gonzales, also filed an answer with
counterclaim, raising the same defenses of laches and prescription and res judicata. They
claimed that OCT No. 629 was issued to the Municipality of Marikina in 1912 and that the
late Pedro Gonzales and his family started occupying the property as early as 1950 as
lessees thereon. The late Pedro Gonzales allegedly bought the property from the
Municipality of Marikina in a public bidding on 25 April 1966 and had allowed defendants to
occupy the property. They asserted that the Guevara heirs never actually occupied the
property.
On 4 December 1995, the RTC set the case for hearing as if a motion to dismiss had been
filed. During the hearing, the parties presented oral arguments and were directed to file their
memoranda.
After submission of memoranda, the RTC issued an Order dated 7 May 1996, dismissing the
action on the ground of laches. The Guevara heirs appealed the order of dismissal, claiming
the denial of their right to due process.
On 23 August 1999, the Court of Appeals promulgated the assailed Decision, which set
aside the RTCs order of dismissal and directed the reinstatement of Civil Case No. 95-171MK. The appellate court ruled that a complaint cannot be dismissed under Rule
16, Section 12 of the Rules of Court based on laches since laches is not one of the grounds
enumerated under said provision. Although the RTC order of dismissal did not rule on the
other affirmative defenses raised by petitioners in the answer, such as lack of cause of
action, prescription and res judicata, the Court of Appeals discussed them and ruled that
none of these affirmative defenses raised were present to warrant the dismissal of the
action.
Only Pineda sought reconsideration. In its 3 May 2000 Resolution, the Court of Appeals
denied Pinedas motion. Hence, the instant petition, attributing the following errors to the
Court of Appeals:
THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE APPEAL OF
RESPONDENTS WHICH RAISED ONLY PURELY QUESTIONS OF LAW; AND,
THEREFORE, IT ACTED WITHOUT JURISDICTION IN HEARING AND DECIDING THE
SAID APPEALED CASE.
THE COURT OF APPEALS ERRED IN NOT CONSIDERING THE AFFIRMATIVE DEFENSE
OF LACHES AS ANALOGOUS TO PRESCRIPTION.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURTS DISMISSAL
OF THE RESPONDENTS COMPLAINT IS ERRONEOUS FOR THE REASON THAT THE
AFFIRMATIVE DEFENSE OF LACHES IS NOT AMONG THE GROUNDS FOR A MOTION
TO DISMISS UNDER THE RULES, WHICH MAY BE ALLEGED AS AFFIRMATIVE
DEFENSE TO BE PROVED DURING THE TRIAL.
AS A COROLLARY TO THE THIRD ASSIGNED ERROR ABOVE, THE COURT OF
APPEALS ERRED IN NOT TREATING THE ASSAILED ORDER OF DISMISSAL OF

RESPONDENTS COMPLAINT BY THE TRIAL COURT AS A SUMMARY JUDGMENT, TO

AVOID PROTRACTED LITIGATION.
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT WHILE PRESCRIPTION IN
DEROGATION OF THE TITLE TO REGISTERED OWNERS WILL NOT LIE, LACHES
WILL.3
Counsel for the estate of Pedro Gonzales filed a Comment/Manifestation, 4 stating that her
clients have adopted and joined Pinedas petition praying for the reinstatement of the trial
courts order of dismissal.
At bottom, the petition raises two main issues, to wit: (1) whether or not the appeal of the
heirs of Guevara was improperly elevated to the Court of Appeals since, according to them,
it raised a pure question of law; and (2) whether or not the trial court correctly dismissed the
action on the ground of laches without conducting trial on the merits.
Petitioner Pineda had ample opportunity to raise before the Court of Appeals the objection
on the improper mode of appeal taken by the heirs of Guevara. This, he failed to do. The
issue of improper appeal was raised only in Pinedas motion for reconsideration of the Court
of Appeals Decision. Hence, this Court cannot now, for the first time on appeal, pass upon
this issue. For an issue cannot be raised for the first time on appeal. 5 In any case, the appeal
by the heirs of Guevara also raised the issue regarding the existence of laches on the part of
petitioners as defendants, which is factual in nature as discussed below.
Now, did the trial court correctly order the dismissal of the complaint based on laches without
conducting trial on the merits? The Court of Appeals disagreed, holding that under Rule 16,
Section 16 of the Rules of Court, laches is not enumerated under said provision, hence, it
must be proved during trial. On the other hand, petitioner Pineda asserts that laches is
analogous to prescription and, therefore, can be a ground of dismissing a complaint as
though a motion to dismiss is filed.
Well-settled is the rule that the elements of laches must be proved positively. Laches is
evidentiary in nature which could not be established by mere allegations in the pleadings
and can not be resolved in a motion to dismiss. At this stage therefore, the dismissal of the
complaint on the ground of laches is premature. 7 Those issues must be resolved at the trial
of the case on the merits wherein both parties will be given ample opportunity to prove their
respective claims and defenses.8
The elements of laches are: (1) conduct on the part of the defendant, or of one under whom
he claims, giving rise to the situation of which the complaint seeks a remedy; (2) delay in
asserting the complainants rights, the complainant having had knowledge or notice of the
defendants conduct as having been afforded an opportunity to institute a suit; (3) lack of
knowledge or notice on the part of the defendant that the complainant would assert the right
in which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is
accorded to the complainant, or the suit is not held barred.9
Whether or not the elements of laches are present is a question involving a factual
determination by the trial court. There is no absolute rule as to what constitutes laches or
staleness of demand; each case is to be determined according to its particular
circumstances.10 Laches is not concerned with the mere lapse of time, rather, the party must
have been afforded an opportunity to pursue his claim in order that the delay may sufficiently
constitute laches.11 Without prejudging the instant case, an apparent delay in the
enforcement of ones claim does not automatically constitute laches. The party charged with
negligence or omission in invoking his right must be afforded the opportunity to raise his
defenses, which can be accommodated only in a contentious proceeding.

In reversing the RTCs order of dismissal, the Court of Appeals held that "laches could not be
a ground to dismiss the complaint as it is not enumerated under Rule 16, Section 1." 12 This is
not entirely correct. Under paragraph (h) thereof, where a claim or demand set forth in the
plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished, the same
may be raised in a motion to dismiss. The language of the rule, particularly on the relation of
the words "abandoned" and "otherwise extinguished" to the phrase "claim or demand
deemed set forth in the plaintiffs pleading" is broad enough to include within its ambit the
defense of bar by laches. However, when a party moves for the dismissal of the complaint
based on laches, the trial court must set a hearing on the motion where the parties shall
submit not only their arguments on the questions of law but also their evidence on the
questions of fact involved.13 Thus, being factual in nature, the elements of laches must be
proved or disproved through the presentation of evidence by the parties. As discussed
above, an apparent delay in the filing of a complaint as shown in a pleading does not
automatically warrant the dismissal of the complaint on the ground of laches.
In the case at bar, while the trial court correctly set the case for hearing as though a motion
to dismiss had been filed, the records do not reveal that it extended to the parties the
opportunity to present evidence. For instance, counsel for the heirs of Guevara filed and
served written interrogatories14 on one of the defendants but the trial court held in abeyance
the resolution of the motion to order the defendant to submit answers to the written
interrogatories.15 The trial court likewise denied the Ex Parte Motion To Set Trial filed by the
heirs of Guevara.16These were the instances which would have enabled the trial court to
receive evidence on which to anchor its factual findings. Although the trial court heard oral
arguments and required the parties to submit their respective memoranda, the presentation
of evidence on the defenses which are grounds for a motion to dismiss was not held at all.
Otherwise, the oral arguments and memoranda submitted by the parties would have
enabled this Court to review the trial courts factual finding of laches instead of remanding
the case for trial on the merits. A perusal of the records precludes this Court from making a
categorical declaration on whether the heirs of Guevara were guilty of laches.
Neither does the affirmative defense of prescription alleged in an answer automatically
warrant the dismissal of the complaint under Rule 16. An allegation of prescription can
effectively be used in a motion to dismiss only when the complaint on its face shows that
indeed the action has already prescribed.17 Otherwise, the issue of prescription is one
involving evidentiary matters requiring a full-blown trial on the merits and cannot be
determined in a mere motion to dismiss. 18 Pinedas theory that the defense of laches should
be treated as an affirmative defense of prescription warranting the dismissal of the complaint
is erroneous.1awphi1.net
There is also no basis in procedural law to treat the RTCs order of dismissal as a summary
judgment. The trial court cannot motu proprio decide that summary judgment on an action is
in order. Under the applicable provisions of Rule 35, the defending party or the claimant, as
the case may be, must invoke the rule on summary judgment by filing a motion. 19 The
adverse party must be notified of the motion for summary judgment20 and furnished with
supporting affidavits, depositions or admissions before hearing is conducted. 21 More
importantly, a summary judgment is permitted only if there is no genuine issue as to any
material fact and a moving party is entitled to a judgment as a matter of law.22
Based on the parties allegations in the complaint and answer, the issues in the case at bar
are far from settled. For instance, both petitioner and respondents claim their ownership
rights over the same property based on two different original certificates of title.
Respondents charge petitioner of illegal occupation while the latter invokes good faith in the

acquisition of the property. Clearly, these are factual matters which can be best ventilated in
a full-blown proceeding before the trial court, especially when what are involved appear to be
sizeable parcels of land covered by two certificates of title.
Except for Pineda, the other defendants did not elevate the Court of Appeals Decision to this
Court. With respect to them, the appellate courts Decision has already become final and
conclusive, notwithstanding their adoption23 of Pinedas petition.
WHEREFORE, the instant petition for review on certiorari is DENIED and the Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 54074 are AFFIRMED. Let the
records of the case be remanded for further proceedings to the Regional Trial Court of
Marikina City, which is hereby ORDERED to try and decide the case with deliberate speed.
SO ORDERED.
DANTE O. TINGA Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES

Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division
C E R T I F I CAT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.
REYNATO S. PUNO
Chief Justice
---------------------------------------------------------------THIRD DIVISION
[G.R. No. 148174. June 30, 2005]
BONIFACIO CONSTRUCTION MANAGEMENT CORPORATION, petitioner, vs. THE
HON. ESTELA PERLAS-BERNABE, in her official capacity as Presiding Judge of the
RTC of MAKATI, BRANCH 142, and GARY CRUZ, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is a petition for review on certiorari assailing the Decision[1] of the Court of Appeals
dated March 12, 2001 and its Resolution[2] dated May 8, 2001 in CA-G.R. SP No. 62512,
entitled Bonifacio Construction Management Corporation vs. The Honorable Estela PerlasBernabe as Presiding Judge, RTC of Makati City, Branch 142 and Gary Cruz.

The facts are as follows:

The Bonifacio Construction Management Corporation, petitioner, is a domestic corporation in
charge of the Fort Bonifacio-Kalayaan-Buendia Flyover Project II, while Gary Cruz, private
respondent, is a doctor of medicine with a Medical Clinic and Industrial Service Office
located at No. 3434 Limbo St., cor. Kalayaan Avenue, Makati City.
On January 5, 1998, the construction of the Fort Bonifacio-Kalayaan-Buendia Flyover in
Makati City commenced. Since then, business establishments within the vicinity of the
construction site, including respondents clinic, have been affected by the construction works.
As a result, his patients and clients stopped visiting his medical clinic for fear of welding
flames from the on-going construction. Furthermore, they could no longer park their vehicles
near the medical clinic.
On September 25, 1998, respondent filed a complaint with the Office of the Barangay
Chairman of Pinagkaisahan, Makati City.[3] In turn, the latter, in letters dated October 2 and 8,
1998,[4]advised petitioner to take appropriate action thereon. Both letters remained
unheeded.
Consequently, on November 17, 1998, respondent sent petitioner a letter [5] demanding
payment of P2,000.00 a day for loss of income due to the construction. But petitioner
refused to pay, prompting respondent to file with the Regional Trial Court, Branch 142,
Makati City a complaint for damages[6] against petitioner, docketed as Civil Case No. 99-521.
Petitioner filed a motion to dismiss[7] on the ground of lack of cause of action and
respondents failure to implead as co-defendant the State, a real party in interest. In an
Order[8] dated February 10, 2000, the trial court denied the motion and required petitioner to
file an answer.
Instead of filing an answer, petitioner, on February 28, 2000, filed an urgent omnibus
motion[9] seeking reconsideration of the trial courts February 10, 2000 Order.
On June 19, 2000, the trial court issued an Order[10] denying petitioners urgent omnibus
motion, holding that the allegations in the complaint constitute a cause of action; and giving
petitioner ten (10) days from notice within which to file its answer. On July 3, 2000, petitioner
filed its answer.[11]
On August 16, 2000, petitioner filed another motion to dismiss [12] alleging that respondent, as
plaintiff, failed to implead the contractor as an indispensable party. In an Order dated
September 19, 2000,[13] the trial court denied the motion. Petitioners subsequent motion for
reconsideration was likewise denied.
Thus, petitioner filed with the Court of Appeals a petition for certiorari and/or prohibition
under Rule 65 of the 1997 Rules of Court, as amended, alleging that respondent judge acted
without jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction when she refused to dismiss the complaint in Civil Case No. 99-521.
On March 12, 2001, the Appellate Court rendered a Decision dismissing the petition for
certiorari and/or prohibition. Petitioner filed a motion for reconsideration but the same was
denied.
Hence, this petition.
Petitioner basically contends before the Court of Appeals that the trial court acted without or
in excess of jurisdiction or with grave abuse of discretion when it denied its second motion to
dismiss the complaint dated August 16, 2000 in Civil Case No. 99-521.
The petition for certiorari and prohibition filed by petitioner with the Court of Appeals is not
the proper remedy to assail the denial by the trial court of its motion to dismiss. The Order
of the trial court denying the motion to dismiss is merely interlocutory. An interlocutory
order does not terminate nor finally dispose of the case, but leaves something to be done by

the court before the case is finally decided on the merits. It is always under the control of the
court and may be modified or rescinded upon sufficient grounds shown at any time before
final judgment. This proceeds from the courts inherent power to control its processes and
orders so as to make them conformable to law and justice.[14]
In Indiana Aerospace University vs. Commission on Higher Education,[15] we held:
An order denying a motion to dismiss is interlocutory, and so the proper remedy in
such a case is to appeal after a decision has been rendered. A writ of certiorari is not
intended to correct every controversial interlocutory ruling: It is resorted only to correct
a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of
jurisdiction. Its function is limited to keeping an inferior court within its jurisdiction and to
relieve persons from arbitrary acts acts which courts or judges have no power or authority in
law to perform. It is not designed to correct erroneous findings and conclusions made by the
courts.
Assuming that certiorari is the proper remedy, we find no grave abuse of discretion
committed by the trial court in denying petitioners second motion to dismiss. We thus sustain
the ruling of the Court of Appeals:
xxx
We have carefully examined the records of the case and the pleadings filed and the
challenged Orders of public respondent, and We are convinced that the latter cannot be
faulted with grave abuse of discretion. By grave abuse of discretion is meant such capricious
and whimsical exercise of judgment or is equivalent to lack of jurisdiction and mere abuse of
discretion is not enough as it must be grave. (Taada vs. Angara, 272 SCRA 18). There is no
such showing on the part of public respondent. On the contrary, it is obvious to Us that public
respondent court acted judiciously and with clear observance of due process.
xxxxxxxxx
x x x Indeed the Motion To Dismiss filed by petitioner on August 17, 2000, more than a
month after it filed its answer, is not sanctioned by the 1997 Rules of Civil Procedure.
Section 1 Rule 16 of said Rules specifically provides that the Motion To Dismiss must be
made within the time for but before filing the answer to the complaint or pleading asserting a
claim x x x. Thus, a Motion To Dismiss may not therefore be made after an answer had
already been filed, in keeping with the pronouncement of the Supreme Court in Lagutan vs.
Icao (224 SCRA 9).
Besides, even granting arguendo that the party sought to be impleaded by petitioner is an
indispensable party, still, as provided for under Sec. 11, Rule 3 of the 1997 Rules of Civil
Procedure Neither misjoinder nor joinder of parties is ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are just x x x (underscoring for
emphasis). Clearly therefore, the Motion To Dismiss as correctly found by the lower court
was procedurally improperly filed, and justifiably denied.
Additionally, by its Motion To Dismiss on the alleged ground of failure to implead or
indispensable party, petitioner is dictating to private respondent whom to select as
defendant. Such is contrary to the ruling of the Supreme Court in Bank of America NT & SA
vs. CA, 186 SCRA 417, where it was held thus: (N)one of the defendants has the right to
compel said plaintiff to prosecute the action against a party if he does not wish to do so. Of
course, the plaintiff will have to suffer the consequences of any error he might commit in
exercising his option, for the defendant that he does not implead or drop from the action,
may well be an indispensable party. (Underlining for emphasis).

From the foregoing disquisition therefore, it is all too clear that errors in this case are
attributable not to public respondent court but to petitioner. Indeed the Motion To Dismiss it
filed suffered from several jurisprudential and procedural flaws which did not escape the
judicious scrutiny of public respondent and which correctly acted under such circumstances.
It is a well settled rule that after the trial court denied a motion to dismiss the complaint, the
defendant should file an answer, proceed to trial and await judgment before interposing an
appeal.
Here, after filing its answer, petitioner should have proceeded to trial. Should the decision of
the lower court be adverse to him, his remedy is to appeal.
WHEREFORE, the petition is hereby DENIED. Costs against petitioner.
SO ORDERED.
Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 147058
March 10, 2006
DAVAO LIGHT & POWER CO., INC., Petitioner,
vs.
HON. JUDGE OF THE REGIONAL TRIAL COURT DAVAO CITY, BRANCH 8, ATTY.
SERAFIN S. OSABEL, NEOCEDA NOVAL-OSABEL, MARIE JOHANNA OSABELGARCIA, VICTORIA LUZ OSABEL-DACUYCUY, ANNA CHRISTIA OSABEL and
SERAFIN OSABEL, JR., Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Petitioner, an electric utility with franchise to distribute electricity in Davao City and other
areas, assails in the present petition for review under Rule 45 of the Rules of Court the
Decision dated October 6, 2000 and the Resolution dated February 6, 2001 rendered by the
Court of Appeals (CA) in CA-G.R. SP No. 50234.1
Petitioner and private respondents are the contending parties in two separate civil cases
before the lower courts. Civil Case No. 3452-F-96 is for Sum of Money, Damages and
Attorneys Fees pending before the Municipal Trial Court in Cities (MTCC) of Davao City,
Branch 6, where petitioner is the plaintiff while private respondent Atty. Serafin Osabel (Atty.
Osabel) and Alfredo Rubin (Rubin) are the defendants. On the other hand, Civil Case No.
25,086-97 is for Damages and Attorneys Fees with Prayer for a Writ of Preliminary
Mandatory Injunction filed before the Regional Trial Court (RTC) of Davao City, Branch 8,
with private respondents as plaintiffs and petitioner as defendant.
In Civil Case No. 3452-F-96, petitioner alleged in its Amended Complaint that: it entered into
an electric service contract with Rubin; despite notice, Rubin failed to pay his electric bills
from September 1990 to May 1993 until it amounted to P35,154.17, prompting petitioner to
cut off electrical service on October 14, 1993; petitioner discovered that during said period,
Rubins electricity service was extended beyond his property line to a certain Ronald
Donguila, who, in turn, sold his property to Atty. Osabel; petitioner also discovered that Atty.
Osabel was using the electrical service of a certain Maria Mercedes Villarosa (Villarosa);

petitioner tried to collect from Atty. Osabel but the latter refused and instead, informed
petitioner that he is consigning the payment of his current consumption to the court;
petitioner tried to collect the amount consigned to the court but was informed by the Clerk of
Court that he needed an order to do so; petitioner gave Atty. Osabel an opportunity to settle
his obligation under his present consumption but the latter ignored petitioners
communications; because of private respondents failure to pay the arrears, petitioner
disconnected the service on February 6, 1997, and in view of the termination of the contract,
removed the meter from the premises.2 Thus, petitioner prayed for the payment of the sums
sought to be collected, damages and attorneys fees.3
Meanwhile, in Civil Case No. 25,086-97, Atty. Osabel, together with his co-private
respondents wife and children, presented three causes of action for damages due to
petitioners (1) failure to give notices of disconnection in two instances between February
1996 and December 1996; (2) disconnection of private respondents electric services on
February 6, 1997; and (3) removal of the electric meter by petitioner in full view of their
neighbors and the public on February 21, 1997.4
Private respondents alleged in their complaint that: in 1994 and with petitioners knowledge,
they leased a residential house owned by Villarosa including the use of Electric Meter No.
86817 under Account No. 091-13848; some time in December 1995, they received from
petitioner a letter demanding payment of P18,900.17 for the electrical consumption made
under the name of Rubin; Atty. Osabel replied and informed petitioner that his obligation
under Account No. 091-13848 has been settled, and the demand for payment for the
consumption made in Rubins name is illegal for which he cannot be held liable, and that he
is tendering payment in the amount of P189.41 as full payment for his March 1996 account;
petitioner wrote back to Atty. Osabel, informing him that the unpaid account in Rubins name
was transferred to his name under Account No. 091-13848, and that a conference was
scheduled on May 22, 1996 so that the matter may be settled; Atty. Osabel declined to
attend the conference, reiterated his objection to the transfer of Rubins account to his name,
and requested for a statement of account for May 1996 so that he could deposit the amount
with the Office of the Clerk of Court of the MTCC; several communications were exchanged
between petitioner and Atty. Osabel until the electrical service to the Osabels was twice
disconnected, in February and December 1996, without notice and warning; Atty. Osabel
made deposits with the MTCC Office of the Clerk of Court for their account due from March
1996 to December 1996; on January 1997, petitioner wrote Villarosa claiming the amount of
P9,633.32 as outstanding balance as of January 1997, without prejudice to its recovery of
the amount of P18,900.17 against Atty. Osabel; Atty. Osabel then made another deposit of
P1,008.44 with the MTCC Office of the Clerk of Court for their January 1997 consumption,
notifying petitioner of the same in a Notice of Consignation dated February 3, 1997;
petitioner refused to acknowledge the consignation and decided to terminate its service
contract on February 6, 1997, and removed its electric meter on February 21, 1997. 5 In each
of the three causes of action, the Osabels prayed for the award of moral, nominal and
exemplary damages as well as attorneys fees and litigation expenses in their favor. They
also prayed for the deletion of the amount of P9,633.32 from Account No. 091-13848.6
Petitioner filed an Amended Motion to Dismiss Civil Case No. 25,086-97 on grounds of lack
of jurisdiction, lack of cause of action, and that a valid consignation needs a judicial action in
the MTC for the complaint to prosper.7 With regard to lack of jurisdiction, petitioner argued
that the claim for moral damages is only for P80,000.00, and as such, it is below the
jurisdictional amount cognizable by the RTC. Petitioner also argued that since private
respondents other causes of action pertain to their consignation of P7,912.62 before the

MTCC, and the damages prayed for are mere incidents to it, then the RTC has no
jurisdiction over the case. On the issue of the lack of cause of action, petitioner contended
that private respondents, who alleged that the case is one for damages and not
consignation, failed to allege in their complaint that there was a valid consignation made in
order for them to validly claim the damages sought. Petitioner also contended that private
respondents are not even the real-party-in-interest inasmuch as they are mere lessees of
Villarosa and the contract of service was with the latter. Finally, petitioner claimed that the
consignation made with the clerk of court is ineffective in the absence of a complaint or case
made in court.8
Private respondents filed their opposition to the amended motion to dismiss, refuting
petitioners arguments. Respondents essentially claimed that the case before the trial court
is for damages and does not depend on the issue of consignation.9
On June 19, 1997, the RTC issued its Order denying the motion to dismiss. The RTC ruled
thus:
In this regard, this Court notes that the instant claim is for the recovery of damages for the
alleged and oppressive act of defendant in cutting of power in plaintiffs abode which this
Court finds to be incapable of pecuniary estimation for as stated in Raymundo vs. Court of
Appeals, et al., 213 SCRA 457, "(I)n determining whether an action is one the subject matter
of which is not capable of pecuniary estimation this Court has adopted the criterion of first
ascertaining the nature of the principal action or remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered capable of pecuniary estimation, and
whether it is in the municipal court [now municipal trial courts] or in the courts of first instance
[now regional trial courts] would depend on the amount of the claim. However, where the
basic issue is something other than the right to recover a sum of money, or where the money
claim is purely incidental to, or a consequence of, the principal relief sought, this Court has
considered such action as cases where the subject of litigation may not be estimated in
terms of money, and are cognizable exclusively by courts of first instance [now regional trial
courts]."
Anent the second, defendant asserts that the complaint fails to state a cause of action upon
plaintiffs failure to allege a valid consignation, which, it stresses, is a matter upon which their
claim is hinged.
This Court appreciates the logic of defendants arguments. The argument, however,
assumes that plaintiffs claim depend on a valid consignation or that the consignation made
by plaintiffs was ineffective. Suffice it to state that these are matters better ventilated at the
trial on the merits.10
Petitioner filed a motion for reconsideration of the RTCs denial, which was denied by the
RTC in its Order dated November 10, 1998.11
Petitioner then brought the RTC orders to the CA via petition for certiorari and prohibition
with preliminary injunction, but the CA denied this in the assailed Decision dated October 6,
2000. The decretal portion of the Decision reads:
WHEREFORE, premises considered, the petition is DISMISSED for lack of merit; and the
assailed Orders of the respondent Judge in Civil Case No. 25,086-97 are AFFIRMED en
toto. The petitioner is hereby ordered to file its Answer before the court a quo.
SO ORDERED.12
The CA found that the RTC has jurisdiction over the case inasmuch as the action before the
RTC seeks to compel petitioner to accept payment of the consigned amounts, and therefore
one for specific performance, which is incapable of pecuniary estimation.13

Petitioner sought reconsideration of the CAs decision but this was denied by the CA in the
assailed Resolution dated February 6, 2001.14
Hence, the present petition, with petitioners setting forth basically the same arguments it
raised before the RTC and the CA.15 According to petitioner, based on the allegations and
the relief prayed for in the complaint, the action before the RTC is a consignation case or an
action to compel the creditor to accept payment; and following the ruling in Ascue v. Court of
Appeals, 196 SCRA 804, the amount consigned is below the jurisdiction of the RTC.
Petitioner also argues that the case before the RTC is not a proper consignation case as it is
not lodged with the proper forum where the consignation or deposit is at the disposal of
judicial authority, the deposits having been made with the MTCC Office of the Clerk of Court.
Lastly, petitioner contends that since it is not the proper case, then it is dismissible for lack of
jurisdiction, lack of or failure to state a cause of action and litis pendentia.
It has long been settled that an order denying a motion to dismiss is an interlocutory order. It
neither terminates nor finally disposes of a case, as it leaves something to be done by the
court before the case is finally decided on the merits, and as such, the general rule is that
the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari. 16
In order to justify the grant of the extraordinary remedy of certiorari, the denial of the motion
to dismiss must have been tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction.17 In this case, the Court finds none.
Both the RTC and the CA found that Civil Case No. 25,086-97 is within the RTCs jurisdiction
as the same is incapable of pecuniary estimation. But that is the only aspect where the two
courts shared the same view. The RTC and the CA differed in characterizing respondents
case. It was the opinion of the RTC that Civil Case No. 25,086-97 is one for damages, while
the appellate court found that it was for specific performance. Given this divergence of
opinion, it now devolves upon the Court to ascertain the nature of the case before the RTC
and ultimately determine whether the RTC has jurisdiction over the same.
The nature of an action is determined by the material averments in the complaint and the
character of the relief sought.18 In this case, the complaint filed in Civil Case No. 25,086-97
sufficiently established a case for DAMAGES, and not specific performance. Neither is it an
action for consignation. This is evident from the reading of the allegations in the complaint
and the reliefs prayed for. The complaint principally sought an award of moral, nominal and
exemplary damages, as well as attorneys fees and litigation expenses, for the alleged
damages suffered by respondents by reason of petitioners disconnection of their electrical
service. The allegations regarding the consignation with the court of the amounts due to
petitioner are mere factual premises from which respondents are basing their theory that
petitioners disconnection of the electrical service and removal of the electric meter was
unjustified. Also, the relief sought by respondents for the RTC to order petitioner to delete
the amount of P9,633.32 from their account is merely incidental to their claim for damages. It
is not the main cause of their claim.
Given that Civil Case No. 25,086-97 is an action for damages, the next question to be
resolved is whether the RTC has jurisdiction over the case.
Republic Act No. 7691, which took effect on April 15, 1994, provides that where the amount
of the demand in civil cases exceeds P100,000.00, exclusive of interest, damages of
whatever kind, attorneys fees, litigation expenses, and costs, the exclusive jurisdiction
thereof is lodged with the RTC.19 Where the amount of the demand in the complaint does not
exceed P100,000.00, exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses, and costs, the exclusive jurisdiction over the same is vested in the
Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. 20 On March

20, 1999, by virtue of Administrative Circular No. 21-99, the jurisdictional amount was
increased to P200,000.00.
Guidelines in the implementation of R.A. No. 7691 were laid out in Administrative Circular
No. 09-94 dated June 14, 1994. Particularly, with regard to damages, paragraph 2 provides:
2. The exclusion of the term "damages of whatever kind" in determining the jurisdictional
amount under Section 19 (8) and Section 33 (1) of B.P. Blg. 129, as amended by R.A. No.
7691, applies to cases where the damages are merely incidental to or a consequence of the
main cause of action. However, in cases where the claim for damages is the main cause of
action, or one of the causes of action, the amount of such claim shall be considered in
determining the jurisdiction of the court. (Emphasis supplied)
Jurisdiction over the subject matter is determined by the allegations in the complaint,
irrespective of whether or not the plaintiff is entitled to recover all or some of the claims or
reliefs sought therein.21 Jurisdiction should not be affected by the pleas or the theories set up
by the defendant in an answer or a motion to dismiss. Otherwise, jurisdiction would become
dependent almost entirely upon the whims of the defendant.22
The complaint in Civil Case No. 25,086-97 was filed on March 3, 1997, 23 hence, R.A. No.
7691 and its implementing guidelines apply. In their prayer, respondents sought, among
others, the following awards:
xxxx
C. On the First Cause of Action: To condemn defendant to pay plaintiffs the sum of
P80,000.00 moral damages, P20,000.00 nominal damages and P20,000.00 exemplary or
corrective damages with interest at the legal rate from the date of filing of the complaint until
fully paid.
D. On the Second Cause of Action: To condemn the defendant to pay damages to the
following plaintiffs, viz.:
(1) To plaintiff Serafin S. Osabel:
P200,000.00 moral damages
20,000.00 nominal damages
20,000.00 temperate damages
20,000.00 exemplary or corrective damages
with interest at the legal rate from the date of filing of the complaint until fully paid.
(2) To plaintiffs Neoceda Osabel, Marie Johanna Osabel-Garcia, Victoria Luz-Dacuycuy,
Anna Christia Osabel and Serafin Osabel, Jr.
P150,000.00 moral damages
25,000.00 nominal damages
25,000.00 exemplary or corrective damages
with interest at the legal rate from the date of filing of the complaint until fully paid.
(3) P6,163.13 actual or compensatory damages with interest at the legal rate from the date
of the filing of the complaint until fully paid.
E. On the Third Cause of Action: To condemn the defendant to pay plaintiffs the sum of
P140,000.00 in damages itemized as follows:
P100,000.00 moral damages
20,000.00 nominal damages
20,000.00 exemplary or corrective damages 24
It is clear from the foregoing that respondents main action is for damages. Hence, all these
claims must be included in determining the jurisdictional amount, and obviously, it falls within
the jurisdiction of the RTC.
Petitioners argument of lack of cause of action likewise cannot stand.

Cause of action is defined as the act or omission by which a party violates a right of
another.25 A complaint is said to assert a sufficient cause of action if, admitting what appears
solely on its face to be correct, the plaintiff would be entitled to the relief prayed for.
Assuming the facts that are alleged to be true, the court should be able to render a valid
judgment in accordance with the prayer in the complaint.26
The rule is that in a motion to dismiss, a defendant hypothetically admits the truth of the
material allegations of the plaintiffs complaint. This hypothetical admission extends to the
relevant and material facts pleaded in, and the inferences fairly deducible from, the
complaint. Hence, to determine whether the sufficiency of the facts alleged in the complaint
constitutes a cause of action, the test is as follows: admitting the truth of the facts alleged,
can the court render a valid judgment in accordance with the prayer?27
A perusal of the complaint discloses sufficient allegations of a legal right or interest enjoyed
by respondents, which was allegedly violated by petitioner, thus causing damages and injury
to the former. The issue of valid consignation raised by petitioner is a matter of defense that
is best left to be established by proof and determined during the trial on the merits of the
case, as was correctly ruled by the RTC.
Lastly, with regard to the ground of litis pendentia as a ground for dismissal of the case,
suffice it to say that petitioner never raised this issue before the RTC or the CA. It is being
alleged for the first time only before the Court. The rule is that questions not raised in the
lower courts cannot be raised for the first time on appeal. 28Consequently, the Court will not
dwell on said issue.
WHEREFORE, the petition is DENIED. The Regional Trial Court (RTC) of Davao City,
Branch 8, is ORDERED to proceed with Civil Case No. 25,086-97 with dispatch.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO
Associate Justice

ROMEO J. CALLEJO, SR.

Asscociate Justice

MINITA V. CHICO-NAZARIO
Associate Justice
C E R T I F I CAT I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice