G.R. No.

74854 April 2, 1991

JESUS DACOYCOY, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT, HON. ANTONIO V. BENEDICTO, Executive Judge,
Regional Trial Court, Branch LXXI, Antipolo, Rizal, and RUFINO DE GUZMAN, respondents.

Ramon V. Sison for petitioner.

Public Attorney's Office for private respondent.

FERNAN, C.J.:

May the trial court motu proprio dismiss a complaint on the ground of improper venue? This is the
issue confronting the Court in the case at bar.

On March 22, 1983, petitioner Jesus Dacoycoy, a resident of Balanti, Cainta, Rizal, filed before the
Regional Trial Court, Branch LXXI, Antipolo, Rizal, a complaint against private respondent Rufino de
Guzman praying for the annulment of two (2) deeds of sale involving a parcel of riceland situated in
Barrio Estanza, Lingayen, Pangasinan, the surrender of the produce thereof and damages for
private respondent's refusal to have said deeds of sale set aside upon petitioner's demand.

On May 25, 1983, before summons could be served on private respondent as defendant therein, the
RTC Executive Judge issued an order requiring counsel for petitioner to confer with respondent trial
judge on the matter of venue. After said conference, the trial court dismissed the complaint on the
ground of improper venue. It found, based on the allegations of the complaint, that petitioner's action
is a real action as it sought not only the annulment of the aforestated deeds of sale but also the
recovery of ownership of the subject parcel of riceland located in Estanza, Lingayen, Pangasinan,
which is outside the territorial jurisdiction of the trial court.

Petitioner appealed to the Intermediate Appellate Court, now Court of Appeals, which in its decision
of April 11, 1986,1 affirmed the order of dismissal of his complaint.

In this petition for review, petitioner faults the appellate court in affirming what he calls an equally
erroneous finding of the trial court that the venue was improperly laid when the defendant, now
private respondent, has not even answered the complaint nor waived the venue.2

Petitioner claims that the right to question the venue of an action belongs solely to the defendant and
that the court or its magistrate does not possess the authority to confront the plaintiff and tell him that
the venue was improperly laid, as venue is waivable. In other words, petitioner asserts, without the
defendant objecting that the venue was improperly laid, the trial court is powerless to dismiss the
case motu proprio.

Private respondent, on the other hand, maintains that the dismissal of petitioner's complaint is proper
because the same can "readily be assessed as (a) real action." He asserts that "every court of
justice before whom a civil case is lodged is not even obliged to wait for the defendant to raise that
venue was improperly laid. The court can take judicial notice and motu proprio dismiss a suit clearly
denominated as real action and improperly filed before it. . . . the location of the subject parcel of
land is controlling pursuant to Sec. 2, par. (a), Rule 4 of the New Rules of Court . . .3

We grant the petition.

The motu proprio dismissal of petitioner's complaint by respondent trial court on the ground of
improper venue is plain error, obviously attributable to its inability to distinguish between jurisdiction
and venue.

Questions or issues relating to venue of actions are basically governed by Rule 4 of the Revised
Rules of Court. It is said that the laying of venue is procedural rather than substantive. It relates to
the jurisdiction of the court over the person rather than the subject matter. Provisions relating to
venue establish a relation between the plaintiff and the defendant and not between the court and the
subject matter. Venue relates to trial not to jurisdiction, touches more of the convenience of the
parties rather than the substance of the case.4

Jurisdiction treats of the power of the court to decide a case on the merits; while venue deals on the
locality, the place where the suit may be had.5

In Luna vs. Carandang,6 involving an action instituted before the then Court of First Instance of
Batangas for rescission of a lease contract over a parcel of agricultural land located in Calapan,
Oriental Mindoro, which complaint said trial court dismissed for lack of jurisdiction over the leased
land, we emphasized:

(1) A Court of First Instance has jurisdiction over suits involving title to, or possession of, real
estate wherever situated in the Philippines, subject to the rules on venue of actions (Manila
Railroad Company vs. Attorney General, etc., et al., 20 Phil. 523; Central Azucarera de
Tarlac vs. De Leon, et al., 56 Phil. 169; Navarro vs. Aguila, et al., 66 Phil. 604; Lim Cay, et
al. vs. Del Rosario, etc., et al., 55 Phil. 692);

(2) Rule 4, Section 2, of the Rules of Court requiring that an action involving real property
shall be brought in the Court of First Instance of the province where the land lies is a rule on
venue of actions, which may be waived expressly or by implication.

In the instant case, even granting for a moment that the action of petitioner is a real action,
respondent trial court would still have jurisdiction over the case, it being a regional trial court vested
with the exclusive original jurisdiction over "all civil actions which involve the title to, or possession of,
real property, or any interest therein . . ." in accordance with Section 19 (2) of Batas Pambansa Blg.
129. With respect to the parties, there is no dispute that it acquired jurisdiction over the plaintiff
Jesus Dacoycoy, now petitioner, the moment he filed his complaint for annulment and damages.
Respondent trial court could have acquired jurisdiction over the defendant, now private respondent,
either by his voluntary appearance in court and his submission to its authority, or by the coercive
power of legal process exercised over his person.7

Although petitioner contends that on April 28, 1963, he requested the City Sheriff of Olongapo City
or his deputy to serve the summons on defendant Rufino de Guzman at his residence at 117 Irving
St., Tapinac, Olongapo City,8 it does not appear that said service had been properly effected or that
private respondent had appeared voluntarily in court9 or filed his answer to the complaint.10 At this
stage, respondent trial court should have required petitioner to exhaust the various alternative
modes of service of summons under Rule 14 of the Rules of Court, i.e., personal service under
Section 7, substituted service under Section 8, or service by publication under Section 16 when the
address of the defendant is unknown and cannot be ascertained by diligent inquiry.

Dismissing the complaint on the ground of improper venue is certainly not the appropriate course of
action at this stage of the proceeding, particularly as venue, in inferior courts as well as in the courts
of first instance (now RTC), may be waived expressly or impliedly. Where defendant fails to
challenge timely the venue in a motion to dismiss as provided by Section 4 of Rule 4 of the Rules of
Court, and allows the trial to be held and a decision to be rendered, he cannot on appeal or in a
special action be permitted to challenge belatedly the wrong venue, which is deemed waived.11

Thus, unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot
be truly said to have been improperly laid, as for all practical intents and purposes, the venue,
though technically wrong, may be acceptable to the parties for whose convenience the rules on
venue had been devised. The trial court cannot pre-empt the defendant's prerogative to object to the
improper laying of the venue by motu proprio dismissing the case.

Indeed, it was grossly erroneous for the trial court to have taken a procedural short-cut by
dismissing motu proprio the complaint on the ground of improper venue without first allowing the
procedure outlined in the Rules of Court to take its proper course. Although we are for the speedy
and expeditious resolution of cases, justice and fairness take primary importance. The ends of
justice require that respondent trial court faithfully adhere to the rules of procedure to afford not only
the defendant, but the plaintiff as well, the right to be heard on his cause.

WHEREFORE, in view of the foregoing, the decision of the Intermediate Appellate Court, now Court
of Appeals, dated April 11, 1986, is hereby nullified and set aside. The complaint filed by petitioner
before the Regional Trial Court of Antipolo, Branch LXXI is revived and reinstated. Respondent court
is enjoined to proceed therein in accordance with law.

SO ORDERED.

G.R. No. 106920 December 10, 1993

PHILIPPINE BANKING CORPORATION, petitioner,

vs.
HON. SALVADOR S. TENSUAN, Judge of Regional Trial Court of Makati, National Capital
Judicial Region, Branch 146; CIRCLE FINANCIAL CORPORATION, AVELINO E. DEATO, JR.,
MIGUEL F. VIOLAGO, BENJAMIN F. SANTIAGO, SOCORRO R. GOMEZ, NERISSA T. GLORIA,
FILEMON C. MARQUEZ, DOMINGO SANTIAGO AND HILARIO P. LOPEZ, respondents.

Tomargo, Luzano & Associates for petitioner.

Edgardo V. Cruz for private respondents.

FELICIANO, J.:
In this Petition for Review on Certiorari, petitioner asks us to review and set aside the Order of Judge
Salvador A. Tensuan dated 3 August 1992, dismissing petitioner's complaint in Civil Case No. 91-
2220 entitled "Philippine Banking Corporation vs. Circle Financial Corporation, et al."

Petitioner Philippine Banking Corporation (hereafter "Bank") is a commercial banking corporation

with principal office at Makati, Metro Manila. Petitioner Bank instituted a complaint for collection of a
sum of money, with a prayer for preliminary attachment, at the Regional Trial Court of Makati. It
appears from the allegations of the Bank's complaint that respondent Circle Financial Co. (hereafter
"Circle"), sometime in 1983 and 1984, through its representatives, obtained several loans
aggregating P1,000,000.00 from petitioner. Respondent Circle, for value received, delivered to
petitioner Bank four (4) promissory notes, each of which contained the stipulation that:

I/We hereby expressly submit to the jurisdiction of the courts of Valenzuela any legal
action which may arise out of this promissory note.

As security for the re-payment by respondent Circle of the sums loaned by petitioner Bank, eight (8)
individuals, who were impleaded as defendants in the complaint — namely, Avelino Deato, Miguel
Violago, Benjamin Santiago, Socorro Gomez, Nerissa Gloria, Filemon Marquez, Domingo Santiago
and Hilario Lopez — executed a Continuing Surety Agreement and undertook to
pay jointly and severally respondent Circle's obligations. Only five (5) out of eight (8) individual
obligors are respondents in present case, namely: Domingo Santiago, Hilario Lopez, Avelino Deato,
Benjamin P. Santiago and Socorro Gomez.

On their due dates, Circle failed to pay its obligations under the promissory notes. Thereupon,
petitioner Bank demanded payment from the eight (8) individual sureties conformably with their
promises contained in the Continuing Surety Agreement; the individual obligors, however, also failed
to pay.

Petitioner moved for issuance of a writ of preliminary attachment, alleging that respondent Circle had
become insolvent and had been placed under receivership by the Central Bank. The trial judge
granted the motion and issued a writ of preliminary attachment. The sheriff's return indicated,
however, that no properties belonging to the respondent Circle and the individual obligors could be
found. Per sheriff's return, summons was served upon Domingo Santiago, 1 Hilario P. Lopez, 2 Avelino
Deato, 3 Benjamin P. Santiago, 4 and Socorro Gomez. 5 The sheriff failed to serve summons on (a) Miguel
Violago, who had died; (b) Nerissa T. Gloria 6 and Filemon Marquez, 7 whose whereabouts were
unknown; and (c) Circle, which had ceased to engage in business at the address given by petitioner and
could not be located.

A motion to dismiss was filed by the respondents (Circle and the five [5] individual sureties served
with summons) and averred that the venue of the action was improperly laid since an agreement had
fixed the venue of actions arising from the promissory notes in Valenzuela, Metro Manila, only.
Respondents called the trial court's attention to the stipulation contained in the promissory note,
quoted in limine.

Acting upon respondent's motion, respondent Judge Tensuan issued the challenged Order which
read as follows:

Acting on defendant's motion to dismiss on grounds of improper venue in relation

with actionable promissory notes which stipulate that the parties "expressly submit to
the jurisdiction of the Courts of Valenzuela, Metro Manila any legal action which may
arise", and,
 Finding said motion to be impressed with merit consistent with
Sec. 13, Rule 14 of the Rules of Court as well as in line with the doctrinal rule
in Bautista vs. Hon. Juan de Borja, et al. (18 SCRA 474) that the proper venue for an
action is that stipulated in a document "in case of any litigation herefrom or in
connection herewith" upon a rationale that had the parties intended to reserve the
right to choose venue under Section 2 (b), Rule 4 of the Rules of Court, such
reservation should have been reflected in the document as against the rationale
in Polytrade Corporation vs. Blanco (30 SCRA 187) which should allow choice of
venue where an actionable document does not set forth qualifying or restrictive
words in point, and

In order to more clearly define the parameters of the rule on proper venue vis-a-vis a
clear perception that a stipulation to "expressly submit to the jurisdiction of the Courts
of Valenzuela, Metro Manila" amount to unequivocal agreement to sue and be sued
in Valenzuela, Metro Manila.

WHEREFORE, premises considered and finding the motion to be meritorious, same

is hereby granted and the above-entitled case is accordingly dismissed. Without
pronouncement as to costs.

SO ORDERED. 8

Petitioner moved for reconsideration of the above Order of the trial court, without success.

Hence, this Petition.

We consider that the Petition is meritorious.

It is settled in this jurisdiction that the parties, by written agreement, may change or transfer the
venue of an action from one province to another. 9 We have many times sustained the validity and
enforceability of contractual stipulations concerning venue, it is, of course, the tenor of their agreement
which is of critical relevance. The relevant task, in other words, is determining the intent of the parties as
manifested in the words employed by them and, where such words are less than clear, in other
recognized indicators of the will of the contracting parties.

Petitioner Bank contends that the stipulation contained in the promissory notes is merely an
agreement to add the courts of Valenzuela to the tribunals to which the parties may resort. Petitioner
thus insists that the venue stipulation set out in the notes did not restrict or limit the permissible
venue of actions arising out of those notes to the courts of Valenzuela, to the exclusion of all the
other courts recourse to any one of which is authorized or permitted under the Rules of Court. Thus,
venue was properly laid by petitioner Bank in the place where its principal offices are located: i.e.,
Makati, Metropolitan Manila.

Private respondents, in opposition, aver that the words used in the stipulation here involved are clear
and unambiguous. A promise to submit to the jurisdiction of a specific court, without an express
reservation of the right to resort to one or more of the tribunals otherwise accessible under the Rules
of Court, is an agreement definitely fixing the permissible venue in only one place, i.e., Valenzuela,
to the exclusion of other competent courts.

A careful reading of the terms of the stipulation — "I/We hereby expressly submit to the jurisdiction
of the courts of Valenzuela any legal action which may arise out of this promissory note" — shows
that the stipulation does not require the laying of venue in Valenzuela exclusively or mandatorily.
The plain or ordinary import of the stipulation is the authorizing of, or permission to bring, suit in
Valenzuela; there is not the slightest indication of an intent to bar suit in other competent courts.

Permissive stipulations like the one here considered have invariably received judicial approval and
we have declared that either of the parties is authorized to lay venue of an action in the court named
in the stipulation. The stipulation her does not purport to deprive either party of it right to elect, or
option to have resort to, another competent court as expressly permitted by Section 2(b) of Rule 4 of
the Rules of Court, should such party choose to initiate a suit. The stipulation here merely operated
to confer or confirm a right upon a party to elect recourse to the courts of Valenzuela or,
alternatively, to go before any of the tribunals envisaged by the rules on venue, i.e., the courts of
Makati, Quezon City and Bulacan. 10

In principle, the stipulation on venue here involved must be distinguished from stipulations which
purport to require or compel the parties to lay venue of an action in a specified place, and in that
particular place only. The latter
type of venue stipulation must clearly indicate, through qualifying and restrictive words, that the
parties deliberately intended to exclude causes or actions from the operation of the ordinary
permissive rules on venue, 11 and that they intended contractually to designate a specific venue to the
exclusion of any other court also competent and accessible to the parties under the ordinary rules on the
venue of actions. Stipulations of this exclusionary nature may, under certain circumstances, be
characterized as unreasonable or as contrary to public policy 12 and, accordingly, not judicially
enforceable.

In practice, the task, as noted earlier, of this Court when confronted with issues of this kind is always
basically that of contract interpretation. In the case at bar, neither qualifying nor restrictive words
(e.g., "must," "only" or "exclusively") were employed which could yield an intent on the part of the
parties mandatorily to restrict the venue of actions arising out of the promissory notes to the courts of
Valenzuela only. Private respondents suggest that the use of words "any legal action" expressed a
supposed agreement to bar actions before any court other than a Valenzuela court. We do not
agree, for we see no necessary or customary connection between the words "any legal action" and
an intent strictly to limit permissible venue to the Valenzuela courts. Intent so to establish an
inflexible restriction of otherwise permissible venue to one single place is not lightly to be presumed
or inferred from stipulations which, like that here before us, include no qualifying or exclusionary
terms. Express reservation of the right to elect venue under the ordinary rules was, accordingly,
unnecessary in the case at bar.

Such is the thrust of the great bulk of the caselaw of this Court where this issue was directly raised
and discussed.

In Polytrade Corporation v. Blanco, 13 the stipulation on venue there involved read:

The parties agree to sue and be sued in the courts of Manila

The Court, in upholding that stipulation and ruling that venue had been properly laid in the then
Court of First Instance of Bulacan (the place of defendant's residence), speaking through Mr. Justice
Sanchez, said:

. . . An accurate reading, however, of the stipulation, "The parties agree to sue and
be sued in the Courts of Manila," does not preclude the filing of suits in the residence
of plaintiff or defendant. The plain meaning is that the parties merely consented to be
sued in Manila. Qualifying or restrictive words which would indicate that Manila and
Manila alone is the venue are totally absent therefrom. We cannot read into that
 clause that plaintiff and defendant bound themselves to file suits with respect to the
last two transactions in question only or exclusively in Manila. For, that agreement
did not change or transfer venue. It simply is permissive. The parties solely agreed to
add the courts of Manila as tribunals to which they may resort. They did not waive
their right to pursue remedy in the courts specifically mentioned in Section 2 (b) of
Rule 4. Renuntiatio non praesumitir. 14 (Emphasis supplied)

In Nicolas v. Reparations Commission, 15 the stipulation on venue provided that:

All legal actions arising out of this contract . . . may be brought in and submitted to the jurisdiction of
the proper courts in the City of Manila. 16

This Court read the above stipulation as merely permissive, relying upon and reinforcing Polytrade:

. . . the venue in personal actions is fixed for the convenience of the plaintiff and his
witnesses and to promote the ends of justice. We cannot conceive how the interests
of justice may be served by confining the situs of the action to Manila, considering
that the residences or offices of all the parties, including the situs of the acts sought
to be restrained or required to be done, are all within the territorial jurisdiction of
Rizal.

While the parties have agreed to submit their dispute to the jurisdiction of the Manila
courts, there is nothing in the language used . . . which clearly shows that the
intention of the parties was to limit the venue of the action to the City of Manila
only. Such agreements should be construed reasonably and should not be applied in
such a manner that it would work more to the inconvenience of the parties without
promoting the ends of justice. 17 (Emphasis supplied)

In Lamis Enterprises v. Lagamon, 18 the promissory note sued on had the following stipulation:

In case of litigation, jurisdiction shall be vested in the courts of Davao City. 19

The collection suit was instituted in the then Court of First Instance of Tagum, Davao. The Supreme
Court rejected the defense of improper venue and held:

. . . it is alleged that the proper venue for Civil Case No. 1395 should be Davao City
where the plaintiff resides and as stipulated in the promissory note dated February
26, 1979 and in the chattel mortgage dated February 27, 1979. However, the
respondent judge found that Maningo has not only legal residence but also physical
and actual residence in Busaon, Tagum, Davao and we are not inclined to disturb
this finding. Anent the claim that Davao City had been stipulated as the venue,
suffice it to say that a stipulation as to venue does not preclude the filing of suits in
the residence of plaintiff or defendant under Section 2(b), Rule 4, Rules of Court, in
the absence of qualifying or restrictive words in the agreement which would indicate
that the place named is the only venue agreed upon by the parties. The stipulation
did not deprive Maningo of his right to pursue remedy in the court specifically
mentioned in Section 2(b) of Rule 4, Rules of Courts, Renuntiatio non praesumitir. . .
. 20 (Emphasis supplied)

In Western Minolco v. Court of Appeals, 21 the clause on venue read:

 The parties stipulate that the venue of the actions referred to in Section 12.01 [Article
XII of the Agreement] shall be in the City of Manila.

The initial action was commenced in the Court of First Instance of Baguio and Benguet. This Court
took the occasion to reiterate once more the Polytrade doctrine:

. . . In any event, it is not entirely amiss to restate the doctrine that stipulations in a
contract, which specify a definite place for the institution of an action arising in
connection therewith, do not, as a rule, supersede the general rules on the matter set
out in Rule 4 of the Rules of Court, but should be construed merely as an agreement
on an additional forum, not as limiting venue to the specified place. 22 (Emphasis
supplied)

It is not necessary top pretend that the decisions of the Supreme Court have been absolutely
consistent in this regard. There have been a few decisions — notably Bautista v. de
Borja 23 and Hoechst Philippines v. Torres 24 — which are not easy to reconcile with the line of cases
beginning with Polytrade discussed above. It is useful therefore to make clear that to the
extent Bautista and Hoechst Philippines are inconsistent with Polytrade (an en banc decision later in time
than Bautista) and subsequent cases reiterating Polytrade, Bautista and Hoechst Philippines have been
rendered obsolete by the Polytrade line of cases.

We note, finally, that no one of the private respondents has claimed to have been put to undue
hardship or inconvenience as a result of the institution of the action in Makati. Venue relates to the
trial and touches more upon the convenience of the parties rather than upon the substance or merits
of the
case. 25

WHEREFORE, the Petition for Review on Certiorari is hereby GRANTED DUE COURSE and the
Orders dated 3 August 1992 and 28 August 1992 of public respondent Judge Salvador S. Tensuan
are hereby REVERSED and SET ASIDE. The case is hereby REMANDED to the court of origin for
resolution on the merits, with all deliberate dispatch. No pronouncements as to costs.

SO ORDERED.
 THIRD DIVISION

[G.R. No. 179488 : April 23, 2012]

COSCO PHILIPPINES SHIPPING, INC., PETITIONER, VS. KEMPER INSURANCE

COMPANY, RESPONDENT.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse
and set aside the Decision[1] and Resolution[2] of the Court of Appeals (CA), in CA-G.R. CV No.
75895, entitled Kemper Insurance Company v. Cosco Philippines Shipping, Inc. The CA
Decision reversed and set aside the Order dated March 22, 2002 of the Regional Trial Court
(RTC), Branch 8, Manila, which granted the Motion to Dismiss filed by petitioner Cosco
Philippines Shipping, Inc., and ordered that the case be remanded to the trial court for further
proceedings.cralaw

The antecedents are as follows:

Respondent Kemper Insurance Company is a foreign insurance company based in Illinois,

United States of America (USA) with no license to engage in business in the Philippines, as it is
not doing business in the Philippines, except in isolated transactions; while petitioner is a
domestic shipping company organized in accordance with Philippine laws.

In 1998, respondent insured the shipment of imported frozen boneless beef (owned by Genosi,
Inc.), which was loaded at a port in Brisbane, Australia, for shipment to Genosi, Inc. (the
importer-consignee) in the Philippines. However, upon arrival at the Manila port, a portion of
the shipment was rejected by Genosi, Inc. by reason of spoilage arising from the alleged
temperature fluctuations of petitioner's reefer containers.

Thus, Genosi, Inc. filed a claim against both petitioner shipping company and respondent
Kemper Insurance Company. The claim was referred to McLarens Chartered for investigation,
evaluation, and adjustment of the claim. After processing the claim documents, McLarens
Chartered recommended a settlement of the claim in the amount of $64,492.58, which Genosi,
Inc. (the consignee-insured) accepted.

Thereafter, respondent paid the claim of Genosi, Inc. (the insured) in the amount of $64,492.58.
Consequently, Genosi, Inc., through its General Manager, Avelino S. Mangahas, Jr., executed a
Loss and Subrogation Receipt[3] dated September 22, 1999, stating that Genosi, Inc. received
from respondent the amount of $64,492.58 as the full and final satisfaction compromise, and
discharges respondent of all claims for losses and expenses sustained by the property insured,
under various policy numbers, due to spoilage brought about by machinery breakdown which
occurred on October 25, November 7 and 10, and December 5, 14, and 18, 1998; and, in
consideration thereof, subrogates respondent to the claims of Genosi, Inc. to the extent of the
said amount. Respondent then made demands upon petitioner, but the latter failed and refused to
pay the said amount.

Hence, on October 28, 1999, respondent filed a Complaint for Insurance Loss and Damages[4]
against petitioner before the trial court, docketed as Civil Case No. 99-95561, entitled Kemper
Insurance Company v. Cosco Philippines Shipping, Inc. Respondent alleged that despite
repeated demands to pay and settle the total amount of US$64,492.58, representing the value of
the loss, petitioner failed and refused to pay the same, thereby causing damage and prejudice to
respondent in the amount of US$64,492.58; that the loss and damage it sustained was due to the
fault and negligence of petitioner, specifically, the fluctuations in the temperature of the reefer
container beyond the required setting which was caused by the breakdown in the electronics
controller assembly; that due to the unjustified failure and refusal to pay its just and valid claims,
petitioner should be held liable to pay interest thereon at the legal rate from the date of demand;
and that due to the unjustified refusal of the petitioner to pay the said amount, it was compelled
to engage the services of a counsel whom it agreed to pay 25% of the whole amount due as
attorney's fees. Respondent prayed that after due hearing, judgment be rendered in its favor and
that petitioner be ordered to pay the amount of US$64,492.58, or its equivalent in Philippine
currency at the prevailing foreign exchange rate, or a total of P2,594,513.00, with interest
thereon at the legal rate from date of demand, 25% of the whole amount due as attorney's fees,
and costs.

In its Answer[5] dated November 29, 1999, petitioner insisted, among others, that respondent had
no capacity to sue since it was doing business in the Philippines without the required license; that
the complaint has prescribed and/or is barred by laches; that no timely claim was filed; that the
loss or damage sustained by the shipments, if any, was due to causes beyond the carrier's control
and was due to the inherent nature or insufficient packing of the shipments and/or fault of the
consignee or the hired stevedores or arrastre operator or the fault of persons whose acts or
omissions cannot be the basis of liability of the carrier; and that the subject shipment was
discharged under required temperature and was complete, sealed, and in good order condition.

During the pre-trial proceedings, respondent's counsel proffered and marked its exhibits, while
petitioner's counsel manifested that he would mark his client's exhibits on the next scheduled
pre-trial. However, on November 8, 2001, petitioner filed a Motion to Dismiss,[6] contending that
the same was filed by one Atty. Rodolfo A. Lat, who failed to show his authority to sue and sign
the corresponding certification against forum shopping. It argued that Atty. Lat's act of signing
the certification against forum shopping was a clear violation of Section 5, Rule 7 of the 1997
Rules of Court.

In its Order[7] dated March 22, 2002, the trial court granted petitioner's Motion to Dismiss and
dismissed the case without prejudice, ruling that it is mandatory that the certification must be
executed by the petitioner himself, and not by counsel. Since respondent's counsel did not have
a Special Power of Attorney (SPA) to act on its behalf, hence, the certification against forum
shopping executed by said counsel was fatally defective and constituted a valid cause for
dismissal of the complaint.

Respondent's Motion for Reconsideration[8] was denied by the trial court in an Order[9] dated July
9, 2002.

On appeal by respondent, the CA, in its Decision[10] dated March 23, 2007, reversed and set aside
the trial court's order. The CA ruled that the required certificate of non-forum shopping is
mandatory and that the same must be signed by the plaintiff or principal party concerned and not
by counsel; and in case of corporations, the physical act of signing may be performed in behalf
of the corporate entity by specifically authorized individuals. However, the CA pointed out that
the factual circumstances of the case warranted the liberal application of the rules and, as such,
ordered the remand of the case to the trial court for further proceedings.

Petitioner's Motion for Reconsideration[11] was later denied by the CA in the Resolution[12] dated
September 3, 2007.

Hence, petitioner elevated the case to this Court via Petition for Review on Certiorari under Rule
45 of the Rules of Court, with the following issues:

THE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT ATTY. RODOLFO

LAT WAS PROPERLY AUTHORIZED BY THE RESPONDENT TO SIGN THE
CERTIFICATE AGAINST FORUM SHOPPING DESPITE THE UNDISPUTED FACTS
THAT:

A) THE PERSON WHO EXECUTED THE SPECIAL POWER OF ATTORNEY (SPA)

APPOINTING ATTY. LAT AS RESPONDENT'S ATTORNEY-IN-FACT WAS MERELY
AN UNDERWRITER OF THE RESPONDENT WHO HAS NOT SHOWN PROOF THAT HE
WAS AUTHORIZED BY THE BOARD OF DIRECTORS OF RESPONDENT TO DO SO.

B) THE POWERS GRANTED TO ATTY. LAT REFER TO [THE AUTHORITY TO

REPRESENT DURING THE] PRE-TRIAL [STAGE] AND DO NOT COVER THE SPECIFIC
POWER TO SIGN THE CERTIFICATE.[13]

Petitioner alleged that respondent failed to submit any board resolution or secretary's certificate
authorizing Atty. Lat to institute the complaint and sign the certificate of non-forum shopping on
its behalf. Petitioner submits that since respondent is a juridical entity, the signatory in the
complaint must show proof of his or her authority to sign on behalf of the corporation. Further,
the SPA[14] dated May 11, 2000, submitted by Atty. Lat, which was notarized before the
Consulate General of Chicago, Illinois, USA, allegedly authorizing him to represent respondent
in the pre-trial and other stages of the proceedings was signed by one Brent Healy (respondent's
underwriter), who lacks authorization from its board of directors.

In its Comment, respondent admitted that it failed to attach in the complaint a concrete proof of
Atty. Lat's authority to execute the certificate of non-forum shopping on its behalf. However,
there was subsequent compliance as respondent submitted an authenticated SPA empowering
Atty. Lat to represent it in the pre-trial and all stages of the proceedings. Further, it averred that
petitioner is barred by laches from questioning the purported defect in respondent's certificate of
non-forum shopping.

The main issue in this case is whether Atty. Lat was properly authorized by respondent to sign
the certification against forum shopping on its behalf.

The petition is meritorious.

We have consistently held that the certification against forum shopping must be signed by the
principal parties.[15] If, for any reason, the principal party cannot sign the petition, the one
signing on his behalf must have been duly authorized.[16] With respect to a corporation, the
certification against forum shopping may be signed for and on its behalf, by a specifically
authorized lawyer who has personal knowledge of the facts required to be disclosed in such
document.[17] A corporation has no power, except those expressly conferred on it by the
Corporation Code and those that are implied or incidental to its existence. In turn, a corporation
exercises said powers through its board of directors and/or its duly authorized officers and
agents. Thus, it has been observed that the power of a corporation to sue and be sued in any court
is lodged with the board of directors that exercises its corporate powers. In turn, physical acts of
the corporation, like the signing of documents, can be performed only by natural persons duly
authorized for the purpose by corporate by-laws or by a specific act of the board of directors.[18]

In Philippine Airlines, Inc. v. Flight Attendants and Stewards Association of the Philippines
(FASAP),[19] we ruled that only individuals vested with authority by a valid board resolution may
sign the certificate of non-forum shopping on behalf of a corporation. We also required proof of
such authority to be presented. The petition is subject to dismissal if a certification was submitted
unaccompanied by proof of the signatory's authority.

In the present case, since respondent is a corporation, the certification must be executed by an
officer or member of the board of directors or by one who is duly authorized by a resolution of
the board of directors; otherwise, the complaint will have to be dismissed.[20] The lack of
certification against forum shopping is generally not curable by mere amendment of the
complaint, but shall be a cause for the dismissal of the case without prejudice.[21] The same rule
applies to certifications against forum shopping signed by a person on behalf of a corporation
which are unaccompanied by proof that said signatory is authorized to file the complaint on
behalf of the corporation.[22]

There is no proof that respondent, a private corporation, authorized Atty. Lat, through a board
resolution, to sign the verification and certification against forum shopping on its behalf.
Accordingly, the certification against forum shopping appended to the complaint is fatally
defective, and warrants the dismissal of respondent's complaint for Insurance Loss and Damages
(Civil Case No. 99-95561) against petitioner.

In Republic v. Coalbrine International Philippines, Inc.,[23] the Court cited instances wherein the
lack of authority of the person making the certification of non-forum shopping was remedied
through subsequent compliance by the parties therein. Thus,

[w]hile there were instances where we have allowed the filing of a certification against non-
forum shopping by someone on behalf of a corporation without the accompanying proof of
authority at the time of its filing, we did so on the basis of a special circumstance or compelling
reason. Moreover, there was a subsequent compliance by the submission of the proof of authority
attesting to the fact that the person who signed the certification was duly authorized.
In China Banking Corporation v. Mondragon International Philippines, Inc., the CA dismissed
the petition filed by China Bank, since the latter failed to show that its bank manager who signed
the certification against non-forum shopping was authorized to do so. We reversed the CA and
said that the case be decided on the merits despite the failure to attach the required proof of
authority, since the board resolution which was subsequently attached recognized the pre-
existing status of the bank manager as an authorized signatory.

In Abaya Investments Corporation v. Merit Philippines, where the complaint before the
Metropolitan Trial Court of Manila was instituted by petitioner's Chairman and President, Ofelia
Abaya, who signed the verification and certification against non-forum shopping without proof
of authority to sign for the corporation, we also relaxed the rule. We did so taking into
consideration the merits of the case and to avoid a re-litigation of the issues and further delay the
administration of justice, since the case had already been decided by the lower courts on the
merits. Moreover, Abaya's authority to sign the certification was ratified by the Board.[24]

Contrary to the CA's finding, the Court finds that the circumstances of this case do not
necessitate the relaxation of the rules. There was no proof of authority submitted, even
belatedly, to show subsequent compliance with the requirement of the law. Neither was there a
copy of the board resolution or secretary's certificate subsequently submitted to the trial court
that would attest to the fact that Atty. Lat was indeed authorized to file said complaint and sign
the verification and certification against forum shopping, nor did respondent satisfactorily
explain why it failed to comply with the rules. Thus, there exists no cogent reason for the
relaxation of the rule on this matter. Obedience to the requirements of procedural rules is needed
if we are to expect fair results therefrom, and utter disregard of the rules cannot justly be
rationalized by harking on the policy of liberal construction.[25]

Moreover, the SPA dated May 11, 2000, submitted by respondent allegedly authorizing Atty. Lat
to appear on behalf of the corporation, in the pre-trial and all stages of the proceedings, signed by
Brent Healy, was fatally defective and had no evidentiary value. It failed to establish Healy's
authority to act in behalf of respondent, in view of the absence of a resolution from respondent's
board of directors or secretary's certificate proving the same. Like any other corporate act, the
power of Healy to name, constitute, and appoint Atty. Lat as respondent's attorney-in-fact, with
full powers to represent respondent in the proceedings, should have been evidenced by a board
resolution or secretary's certificate.

Respondent's allegation that petitioner is estopped by laches from raising the defect in
respondent's certificate of non-forum shopping does not hold water.

In Tamondong v. Court of Appeals,[26] we held that if a complaint is filed for and in behalf of the
plaintiff who is not authorized to do so, the complaint is not deemed filed. An unauthorized
complaint does not produce any legal effect. Hence, the court should dismiss the complaint on
the ground that it has no jurisdiction over the complaint and the plaintiff.[27] Accordingly, since
Atty. Lat was not duly authorized by respondent to file the complaint and sign the verification
and certification against forum shopping, the complaint is considered not filed and ineffectual,
and, as a necessary consequence, is dismissable due to lack of jurisdiction.
Jurisdiction is the power with which courts are invested for administering justice; that is, for
hearing and deciding cases. In order for the court to have authority to dispose of the case on the
merits, it must acquire jurisdiction over the subject matter and the parties. Courts acquire
jurisdiction over the plaintiffs upon the filing of the complaint, and to be bound by a decision, a
party should first be subjected to the court's jurisdiction.[28] Clearly, since no valid complaint was
ever filed with the RTC, Branch 8, Manila, the same did not acquire jurisdiction over the person
of respondent.

Since the court has no jurisdiction over the complaint and respondent, petitioner is not estopped
from challenging the trial court's jurisdiction, even at the pre-trial stage of the proceedings. This
is so because the issue of jurisdiction may be raised at any stage of the proceedings, even on
appeal, and is not lost by waiver or by estoppel.[29]

In Regalado v. Go,[30] the Court held that laches should be clearly present for the Sibonghanoy[31]
doctrine to apply, thus:

Laches is defined as the "failure or neglect for an unreasonable and unexplained length of time,
to do that which, by exercising due diligence, could or should have been done earlier, it is
negligence or omission to assert a right within a reasonable length of time, warranting a
presumption that the party entitled to assert it either has abandoned it or declined to assert it.”

The ruling in People v. Regalario that was based on the landmark doctrine enunciated in Tijam v.
Sibonghanoy on the matter of jurisdiction by estoppel is the exception rather than the rule.
Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in cases in which
the factual milieu is analogous to that in the cited case. In such controversies, laches should have
been clearly present; that is, lack of jurisdiction must have been raised so belatedly as to warrant
the presumption that the party entitled to assert it had abandoned or declined to assert it.

In Sibonghanoy, the defense of lack of jurisdiction was raised for the first time in a motion to
dismiss filed by the Surety almost 15 years after the questioned ruling had been rendered. At
several stages of the proceedings, in the court a quo as well as in the Court of Appeals, the
Surety invoked the jurisdiction of the said courts to obtain affirmative relief and submitted its
case for final adjudication on the merits. It was only when the adverse decision was rendered by
the Court of Appeals that it finally woke up to raise the question of jurisdiction.[32]

The factual setting attendant in Sibonghanoy is not similar to that of the present case so as to
make it fall under the doctrine of estoppel by laches. Here, the trial court's jurisdiction was
questioned by the petitioner during the pre-trial stage of the proceedings, and it cannot be said
that considerable length of time had elapsed for laches to attach. cralaw

WHEREFORE, the petition is GRANTED. The Decision and the Resolution of the Court of
Appeals, dated March 23, 2007 and September 3, 2007, respectively, in CA-G.R. CV No. 75895
are REVERSED and SET ASIDE. The Orders of the Regional Trial Court, dated March 22,
2002 and July 9, 2002, respectively, in Civil Case No. 99-95561, are REINSTATED.

SO ORDERED.
G.R. No. 167471 February 5, 2007

GLICERIA SARMIENTO, Petitioner,

vs.
EMERITA ZARATAN, Respondent.

DECISION

CHICO-NAZARIO, J.:
This petition for Review on Certiorari under Rule 45 of the Rules of Court seeks to nullify the
Court of Appeals Decision1 in CA-G.R. SP No. 79001 entitled, "Emerita Zaratan v. Hon. Ramon
A. Cruz, as Presiding Judge of RTC, Quezon City, Branch 223, and Gliceria Sarmiento," dated
17 August 2004, which reversed and set side the Orders dated 19 June 2003 and 31 July 2003 of
the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-03-49437, dismissing
respondent’s appeal for failure to file the memorandum within the period provided for by law.

On 2 September 2002, petitioner Gliceria Sarmiento filed an ejectment case2 against respondent
Emerita Zaratan, in the Metropolitan Trial Court (MeTC) of Quezon City, Branch 36, docketed
as Civil Case No. 29109.

On 31 March 2003, the MeTC rendered a decision in favor of petitioner, the dispositive portion
of which reads:

WHEREFORE, the Court finds that plaintiff has sufficiently established her causes against the
defendant and hereby order the defendant and all persons claiming rights under her:

1. to pay plaintiff the monthly rentals of P3,500.00 for the said premises from August 1,
2002 until defendant vacates the premises;

2. to pay plaintiff the sum of P20,000.00 plus P1,500.00 per appearance of counsel in
court, as and for attorney’s fees; and

to pay the cost of suit.3

Respondent filed her notice of appeal.4 Thereafter, the case was raffled to the RTC of Quezon
City, Branch 223, docketed as Civil Case No. Q-03-49437.

In the Notice of Appealed Case,5 the RTC directed respondent to submit her memorandum in
accordance with the provisions of Section 7(b) of Rule 40 of the Rules of Court and petitioner to
file a reply memorandum within 15 days from receipt.

Respondent’s counsel having received the notice on 19 May 2003, he had until 3 June 2003
within which to file the requisite memorandum. But on 3 June 2003, he filed a Motion for
Extension of Time of five days due to his failure to finish the draft of the said Memorandum. He
cited as reasons for the delay of filing his illness for one week, lack of staff to do the work due to
storm and flood compounded by the grounding of the computers because the wirings got wet.6
But the motion remained unacted.

On 9 June 2003, respondent filed her Memorandum. On 19 June 2003, the RTC dismissed the
appeal as follows:

Record shows that defendant-appellant received the Notice of Appealed Case, through counsel,
on May 19, 2003 (Registry Return Receipt dated May 12, 2003, Record, back of p. 298). Thus,
under Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure, she had fifteen (15) days or
until June 3, 2003 within which to submit a memorandum on appeal. As further appears on
record, however, the required Memorandum was filed by defendant-appellant only on June 9,
2003 (Record, p. 623), or six (6) days beyond the expiration of the aforesaid fifteen day period.

It should be stressed that while the rules should be liberally construed, the provisions on
reglemenatry periods are strictly applied as they are "deemed indispensable to the prevention of
needless delays and necessary to the orderly and speedy discharge of judicial business" (Legaspi-
Santos vs. Court of Appeals, G.R. No. 60577, October 11, 1983) and strict compliance therewith
is mandatory and imperative (FJR Garments Industries vs. Court of Appeals, G.R. No. L-49329,
June 29, 1984). The same is true with respect to the rules on the manner and periods for
perfecting appeals (Gutierrez vs. Court of Appeals, L-25972, November 26, 1968).

Premises considered, the instant appeal is hereby DISMISSED. This renders academic
defendant-appellant’s application for a writ of preliminary injunction.7 1awphi1.net

On the basis of the above-quoted Order, petitioner filed a Motion for Immediate Execution,8
while respondent moved for the Reconsideration.9 Both motions were denied by the RTC on 31
July 2003. The Order in part reads:

In the main, defendant-appellants Motion for Reconsideration is premised on the argument that
she filed a timely "Motion for Extension of Time To File Memorandum," dated and filed on June
3, 2003, but that her motion was not acted upon by this Court. She adds that her appeal
memorandum was filed well within the period sought by her in her "Motion for Extension of
Time to File Memorandum" so that her appeal should not have been dismissed.

The argument is without merit. This Court did not take cognizance of defendant-appellant’s
"Motion for Extension of Time to File Memorandum," and rightly so, because it did not contain
a notice of hearing as required by Sections 4 and 5, Rule 15 of the Rules of Court, an omission
for which it could offer no explanation. As declared in the case of Gozon, et al. v. court of
Appeals (G.R. No. 105781, June 17, 1993);

xxx

It is well-entrenched in this jurisdiction that a motion 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
has no right to receive, and the court has no authority to act upon.

xxx

Moreover, parties and counsel should not assume that courts are bound to grant the time they
pray for. A motion that is not acted upon in due time is deemed denied (Orosa vs. Court of
Appeals, 261 SCRA 376 [1996]). Thus, defendant-appellant’s appeal was properly dismissed on
account of her failure to file an appeal memorandum within the fifteen (15) day period provided
under Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure.

With regard to the "Motion for Immediate Execution," dated June 23, 2003, filed by plaintiff-
appellee, the rule is explicit that the execution of a judgment in an ejectment case, must be
sought with the inferior court which rendered the same. The appellate court which affirms a
decision brought before it on appeal cannot decree its execution in the guise of an execution of
the affirming decision. The only exception is when said appellate court grants an execution
pending appeal, which is not the case herein (City of Manila vs. Court of Appeals, 204 SCRA
362; Sy vs. Romero, 214 SCRA 187).10

Petitioner moved for reconsideration of the said Order, while respondent sought clarification on
whether the 31 July 2003 Order dismissing the appeal was anchored on Section (b), Rule 40 or
Section 7(c) of the same Rule.

On 27 August 2003, the RTC reconsidered its previous Order by granting petitioner’s motion for
Immediate Execution, but denied respondent’s Motion for Clarification, in this wise:

Section 21, Rule 70 of the Rules of Court provides that "the judgment of the Regional Trial
Court against the defendant shall be immediately executory, without prejudice to a further appeal
that may be taken therefrom. Pursuant to this Rule and taking into account the arguments of the
plaintiff in her "Urgent Motion for Reconsideration," the Court is inclined to grant the same. As
further correctly argued by the plaintiff, through counsel, during the hearing on her motion on
August 15, 2003, the cases of City of Manila v. Court of Appeals (204 SCRA 362) and Sy vs.
Romero (214 SCRA 187) cited in the July 31, 2003 Order refer to ejectment cases which has
(sic) been decided with finality and hence, inapplicable to this case where a further appeal is still
available to the defendant. It should likewise be noted that while the Supreme Court ruled in
these cases that execution of a judgment in an ejectment case must be sought with the inferior
court which rendered the same, it likewise provided that for an exception to this rule, that is, in
cases where the appellate court grants an execution pending appeal, as the case herein.

With regard to defendant’s Motion for Clarification, contained in her Opposition, the Court notes
that the issues raised therein have already been squarely dealt with in the July 31, 2003 Order.
The same must, therefore, be denied.11

Aggrieved, respondent filed a Petition for Certiorari in the Court of Appeals, which was granted
in a decision dated 17 August 2004. The appellate court nullified and set aside the 19 June 2003
and 31 July 2003 Orders of the RTC and ordered the reinstatement of respondent’s appeal.
Consequently, respondent’s appeal memorandum was admitted and the case remanded to the
RTC for further proceedings.12

Petitioner filed a motion for reconsideration13 on 13 September 2004, followed by a Motion for
Inhibition14 of the members of the Eighth Division of the Court of Appeals on 20 September
2004. Both motions were denied for lack of merit on 10 March 2005.15

Hence, this appeal by petitioner posing the following issues,16 thus:

1. Whether respondent’s petition for certiorari should have been dismissed in the first
place;
 2. Whether the trial court committed grave abuse of discretion in denying respondent’s
motion for extension;

3. Whether it is Section 19 of Rule 7 that applies, and not Section 21; and

4. Whether the Court of Appeals Justices should have inhibited themselves from further
proceeding with the subject case.

Stated otherwise, the main issue for resolution is whether the Court of Appeals committed a
reversible error of law in granting the Writ of Certiorari. In granting the petition, the Court of
Appeals ruled that the RTC erred in dismissing respondent’s appeal for failure to file the
required Memorandum within the period provided by law and in granting petitioner’s Motion for
Immediate Execution of the MeTC decision.

Before resolving the substantive issues raised by petitioner, the Court will first address the
procedural infirmities ascribed by petitioner. Petitioner assails the correctness and propriety of
the remedy resorted to by respondent by filing a Petition for Certiorari in the Court of Appeals.
According to petitioner, certiorari is not appropriate and unavailing as the proper remedy is an
appeal.

It must be noted that respondent’s appeal in the RTC was dismissed for failure to file the
required memorandum within the period allowed by law, as the Motion for Extension of Time to
file Memorandum was not acted upon for failure to attach a notice of hearing. From the said
dismissal, respondent filed a Petition for Certiorari in the Court of Appeals.

Respondent correctly filed said petition pursuant to Section 41 of the Rules of Court, which
provides:

Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these Rules to
be appealable.

No appeal may be taken:

xxxx

(d) An order disallowing or dismissing an appeal;

xxxx

In all the above instances where the judgment or final order is not appealable, the aggrieved
party may file an appropriate civil action under Rule 65. (Underscoring supplied.)

Petitioner also contends that the Petition for Certiorari filed in the Court of Appeals should be
dismissed as the certification of non-forum shopping was defective. The verification in part
reads:
I, EMERITA ZARATAN, of legal age, after having been duly sworn to, according to law,
depose and say:

That I, Emerita Zaratan is one of the respondent (sic) in the above entitled case, hereby declare,
that I have caused the preparation and filing of the foregoing Comment on the Petition; that I
have read all the allegations therein, which are true and correct to the best of my own knowledge.

That as respondent, I further certify that I have not commenced any other action or proceeding
involving the same issues in the foregoing Petition in the Court of Appeals, the Supreme Court,
or different Divisions thereof, respectively, or any tribunal, or agency; and should it be known
that a similar action or proceeding has been filed or is pending in any of the abovementioned
Courts or different Divisions thereof, the petitioner shall notify the Honorable Court to which
this certification is filed, within five (5) days from such notice. (Underscoring ours.)

Petitioner avers that respondent by stating in the above-quoted certification that she was the
respondent, while in truth she was the petitioner and by stating that respondent caused the
preparation of the comment on the petition, instead of the petition itself, indicate that respondent
did not understand what she was signing. The defect of the verification all renders the petition in
the Court of Appeals without legal effect and constitutes ground for its dismissal.

The contention is baseless.

The purpose of requiring a verification is to secure an assurance that the allegations of the
petition have been made in good faith, or are true and correct, not merely speculative. This
requirement is simply a condition affecting the form of pleadings and non-compliance therewith
does not necessarily render it fatally defective.17 Perusal of the verification in question shows
there was sufficient compliance with the requirements of the Rules and the alleged defects are
not so material as to justify the dismissal of the petition in the Court of Appeals. The defects are
mere typographical errors. There appears to be no intention to circumvent the need for proper
verification and certification, which are intended to assure the truthfulness and correctness of the
allegations in the petition and to discourage forum shopping.18

Now, the substantial issues.

Corollary to the dismissal of the appeal by the RTC is the question of whether the lack of notice
of hearing in the Motion for Extension of Time to file Memorandum on Appeal is fatal, such that
the filing of the motion is a worthless piece of paper.

Petitioner avers that, because of the failure of respondent to include a Notice of Hearing in her
Motion for Extension of Time to file Memorandum on Appeal in the RTC, the latter’s motion is
a worthless piece of paper with no legal effect.

It is not disputed that respondent perfected her appeal on 4 April 2003 with the filing of her
Notice of Appeal and payment of the required docket fees. However, before the expiration of
time to file the Memorandum, she filed a Motion for Extension of Time seeking an additional
period of five days within which to file her Memorandum, which motion lacked the Notice of
Hearing required by Section 4, Rule 15 of the 1997 Rules of Court which provides:

SEC. 4. Hearing of Motion. - Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by the
applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter notice.

As may be gleaned above and as held time and again, the notice requirement in a motion is
mandatory. As a rule, a motion without a Notice of Hearing is considered pro forma and does not
affect the reglementary period for the appeal or the filing of the requisite pleading.19

As a general rule, notice of motion is required where a party has a right to resist the relief sought
by the motion and principles of natural justice demand that his right be not affected without an
opportunity to be heard.20 The three-day notice required by law is intended not for the benefit of
the movant but to avoid surprises upon the adverse party and to give the latter time to study and
meet the arguments of the motion.21 Principles of natural justice demand that the right of a party
should not be affected without giving it an opportunity to be heard.22

The test is the presence of the opportunity to be heard, as well as to have time to study the
motion and meaningfully oppose or controvert the grounds upon which it is based.23 Considering
the circumstances of the present case, we believe that procedural due process was substantially
complied with.

There are, indeed, reasons which would warrant the suspension of the Rules: (a) the existence of
special or compelling circumstances, b) the merits of the case, (c) a cause not entirely
attributable to the fault or negligence of the party favored by the suspension of rules, (d) a lack of
any showing that the review sought is merely frivolous and dilatory, and (e) the other party will
not be unjustly prejudiced thereby.24 Elements or circumstances (c), (d) and (e) exist in the
present case.

The suspension of the Rules is warranted in this case. The motion in question does not affect the
substantive rights of petitioner as it merely seeks to extend the period to file Memorandum. The
required extension was due to respondent’s counsel’s illness, lack of staff to do the work due to
storm and flood, compounded by the grounding of the computers. There is no claim likewise that
said motion was interposed to delay the appeal.25 As it appears, respondent sought extension
prior to the expiration of the time to do so and the memorandum was subsequently filed within
the requested extended period. Under the circumstances, substantial justice requires that we go
into the merits of the case to resolve the issue of who is entitled to the possession of the land in
question.

Further, it has been held that a "motion for extension of time x x x is not a litigated motion where
notice to the adverse party is necessary to afford the latter an opportunity to resist the
application, but an ex parte motion made to the court in behalf of one or the other of the parties
to the action, in the absence and usually without the knowledge of the other party or parties." As
a general rule, notice of motion is required where a party has a right to resist the relief sought by
the motion and principles of natural justice demand that his rights be not affected without an
opportunity to be heard. It has been said that "ex parte motions are frequently permissible in
procedural matters, and also in situations and under circumstances of emergency; and an
exception to a rule requiring notice is sometimes made where notice or the resulting delay might
tend to defeat the objective of the motion."26

It is well to remember that this Court, in not a few cases, has consistently held that cases shall be
determined on the merits, after full opportunity to all parties for ventilation of their causes and
defense, rather than on technicality or some procedural imperfections. In so doing, the ends of
justice would be better served.27 Furthermore, this Court emphasized its policy that technical
rules should accede to the demands of substantial justice because there is no vested right in
technicalities. Litigations, should, as much as possible, be decided on their merits and not on
technicality. Dismissal of appeals purely on technical grounds is frowned upon, and the rules of
procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help
secure, not override, substantial justice, and thereby defeat their very aims. As has been the
constant rulings of this Court, every party-litigant should be afforded the amplest opportunity for
the proper and just disposition of his cause, free from constraints of technicalities.28 Indeed, rules
of procedure are mere tools designed to expedite the resolution of cases and other matters
pending in court. A strict and rigid application of the rules that would result in technicalities that
tend to frustrate rather than promote justice must be avoided.29

The visible emerging trend is to afford every party-litigant the amplest opportunity for the proper
and just determination of his cause, free from constraints and technicalities.

Parenthetically, it must be noted also that when the appeal was dismissed on 19 June 2003, the
memorandum was already filed in court on 9 June 2003.

On the issue of immediate execution of judgment.

The applicable provision is Section 19, Rule 70 of the Rules of Court, which reads:

SEC. 19. Immediate Execution of judgment; how to stay the same.- If judgment is rendered
against the defendant, execution shall issue immediately upon motion, unless an appeal has been
perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by
the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and
costs accruing down to the time of the judgment appealed from, and unless, during the pendency
of the appeal, he deposits with the appellate court the amount of rent due from time to time under
the contract, if any, as determined by the judgment of the Municipal Trial Court. x x x.

To stay the immediate execution of judgment in ejectment proceedings, Section 19 requires that
the defendant-appellant must (a) perfect his appeal, (b) file a supersedeas bond, and (c)
periodically deposit the rentals falling due during the pendency of the appeal.
As correctly observed by the Court of Appeals, execution pending appeal was premature as
respondent had already filed a supersedeas bond and the monthly rental for the current month of
the premises in question.30

The invocation of petitioner of the provisions of Section 21, Rule 70 of the Rules of Court,
which runs:

Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court.- The judgment
of the Regional Trial Court against the defendant shall be immediately executory, without
prejudice to a further appeal that may be taken therefrom.

to justify the issuance of the writ of execution pending appeal in this case is misplaced.

A closer examination of the above-quoted provision reveals that said provision applies to
decision of the RTC rendered in its appellate jurisdiction, affirming the decision of the MeTC. In
the case at bar, the RTC order was an order dismissing respondent’s appeal based on
technicality. It did not resolve substantive matters delving on the merits of the parties’ claim in
the ejectment case. Thus, the case brought to the Court of Appeals was the dismissal of the
appeal for failure to file the required memorandum within the period provided by law, and not on
the merits of the ejectment case.

Lastly, petitioner posited the view that the Court of Appeals’ justices should have inhibited
themselves because of bias and partiality for deciding the case within eight months and for being
very selective in discussing the issues.

We reject the proposition.

Inhibition must be for just and valid causes. The mere imputation of bias and partiality is not
enough ground for judges to inhibit, especially when the charge is without basis. This Court has
to be shown acts or conduct clearly indicative of arbitrariness or prejudice before it can brand
them with the stigma of bias and partiality.31 This Court has invariably held that for bias and
prejudice to be considered valid reasons for the voluntary inhibition of judges, mere suspicion is
not enough. Bare allegations of their partiality will not suffice "in the absence of clear and
convincing evidence to overcome the presumption that the judge will undertake his noble role to
dispense justice according to law and evidence and without fear and favor."32

There is no factual support to petitioner’s charge of bias and partiality. A perusal of the records
of the case fails to reveal that any bias or prejudice motivated the Court of Appeals in granting
respondent’s petition. Neither did this Court find any questionable or suspicious circumstances
leading to the issuance of the questioned decision, as suggested by petitioner.

The fact alone that the Court of Appeals decided the case within eight months does not in any
way indicate bias and partiality against petitioner. It is within the constitutional mandate to
decide the case within 12 months.33
As to petitioner’s allegation that the Court of Appeals was selective in choosing what issues to
resolve, it bears to stress again that "a judge’s appreciation or misappreciation of the sufficiency
of evidence x x x adduced by the parties, x x x, without proof of malice on the part of respondent
judge, is not sufficient to show bias and partiality."34 We also emphasized that "repeated rulings
against a litigant, no matter how erroneously, vigorously and consistently expressed, do not
amount to bias and prejudice which can be bases for the disqualification of a judge."35

IN ALL, petitioner utterly failed to show that the appellate court erred in issuing the assailed
decision. On the contrary, it acted prudently in accordance with law and jurisprudence.

WHEREFORE, the instant petition is hereby DENIED for lack of merit. The Decision dated 17
August 2004 and the Resolution dated 10 March 2005 of the Court of Appeals in CA-G.R. SP
No. 79001 are hereby AFFIRMED. No costs.

SO ORDERED.
G.R. No. 152776. October 8, 2003]

HENRY S. OAMINAL, petitioner, vs. PABLITO M. CASTILLO and GUIA S. CASTILLO,

respondents.

DECISION

PANGANIBAN, J.:

In the instant case, the receipt of the summons by the legal secretary of the defendants --
respondents herein -- is deemed proper, because they admit the actual receipt thereof, but merely
question the manner of service. Moreover, when they asked for affirmative reliefs in several
motions and thereby submitted themselves to the jurisdiction of the trial court, whatever defects
the service of summons may have had were cured.

The Case

Before us is a Petition for Review1[1] under Rule 45 of the Rules of Court, seeking to nullify the
March 26, 2002 Decision2[2] of the Court of Appeals (CA) in CA-GR SP No. 66562. The assailed
Decision disposed thus:

WHEREFORE, the [D]ecision dated 23 August 2001 is hereby NULLIFIED and SET ASIDE
and Civil Case No. OZC-00-13 ordered DISMISSED, without prejudice. Costs against
[petitioner].3[3]

The Antecedents

The antecedents of the case were narrated by the CA as follows:

On 09 March 2000, [Petitioner Henry Oaminal] filed a complaint for collection against
[Respondents Pablito and Guia Castillo] with the Regional Trial Court [RTC] of Ozamis City
(Branch 35) x x x. The complaint prayed that [respondents] be ordered to pay P1,500,000.00 by
way of liquidated damages and P150,000.00 as attorneys fees.
On 30 May 2000, the summons together with the complaint was served upon Ester Fraginal,
secretary of [Respondent] Mrs. Castillo.

On 06 June 2000, [respondents] filed their Urgent Motion to Declare Service of Summons
Improper and Legally Defective alleging that the Sheriff's Return has failed to comply with
Section (1), Rule 14 of the Rules of Court or substituted service of summons.

The scheduled hearing of the Motion on 14 July 2000 did not take place because x x x [RTC]
Judge [Felipe Zapatos] took a leave of absence from July 17 to 19, 2000[;] hence[,] it was re-
scheduled to 16 August 2000.

On 19 October 2000, [petitioner] filed an Omnibus Motion to Declare [Respondents] in Default

and to Render Judgment because no answer [was] filed by [the latter].

[Respondents] forthwith filed the following:

a. Omnibus Motion Ad Cautelam to Admit Motion to Dismiss and Answer with Compulsory
Counter-claim dated 9 November 2000 which was set for hearing on 27 November 2000 at 8:30
a.m.;

b. x x x Urgent Motion to Dismiss also dated 9 November 2000 which was also set for hearing
on 27 November 2000 at 8:30 a.m. The said motion was anchored on the premise that x x x
[petitioner's] complaint was barred by improper venue and litis pendentia; and

c. Answer with Compulsory Counter-Claim dated 9 November 2000.

On 16 November 2000, x x x [the] judge denied [respondents] Motion to Dismiss, admitted

[their] Answer, and set the pre-trial [on] 17 January 2001.

On 24 November 2000, [respondents] filed an Urgent Motion to Inhibit Ad Cautelam against

Judge [Zapatos], in the higher interest of substantial justice and the [r]ule of [l]aw x x x.

On 27 December 2000, Judge [Zapatos] denied the motion and transferred the January 17th pre-
trial to 19 February 2001.

[Respondents] filed an Urgent Omnibus Motion for Reconsideration with the Accompanying
Plea to Reset dated 22 January 2001. The motion requested that it be set for consideration and
approval by the trial court on 05 February 2001 at 8:30 a.m. Said motion in the main prayed that
an order be issued by the Honorable Court reconsidering its adverse order dated 16 November
2000, by dismissing the case at bar on the ground of improper venue or in the alternative, that the
Honorable Presiding Judge reconsider and set aside its order dated December 27, 2000 by
inhibiting himself from the case at hand.

On 22 May 2001, Judge [Zapatos] ruled that [respondents] Omnibus Motion Ad Cautelam to
Admit Motion to Dismiss and Answer with Counterclaim was filed outside the period to file
answer, hence he (1) denied the Motion to Admit Motion to Dismiss and Answer; (2) declared
[respondents] in default; and (3) ordered [petitioner] to present evidence ex-parte within ten days
from receipt of [the] order, [failing] which, the case will be dismissed.

On 23 August 2001, Judge [Zapatos] rendered a decision on the merits, with the following
dispositi[on]:

WHEREFORE, finding by preponderance of evidence, judgment is hereby rendered in favor of

[petitioner], ordering [respondents] to pay x x x:

1) P1,500,000.00 by way of [l]iquidated [d]amages;

2) P20,000.00 as attorney's fees and litigation expenses; and

3) x x x cost[s].4[4]

On September 11, 2001, respondents filed with the CA a Petition for certiorari, prohibition and
injunction, with a prayer for a writ of preliminary injunction or temporary restraining order
(TRO). In the main, they raised the issue of whether the trial court had validly acquired
jurisdiction over them.

On September 20, 2001, the appellate court issued a TRO to enjoin the lower court from issuing
a writ of execution to enforce the latters decision.

Ruling of the Court of Appeals

The CA ruled that the trial court did not validly acquire jurisdiction over respondents, because
the summons had been improperly served on them. It based its finding on the Sheriffs Return,
which did not contain any averment that effort had been exerted to personally serve the summons
on them before substituted service was resorted to. Thus, the appellate court set aside the trial
courts Decision and dismissed, without prejudice, Civil Case No. OZC-00-13.

Hence, this Petition.5[5]

Issues

Petitioner submits the following issues for our consideration:

I
Whether respondents recourse to a Petition for Certiorari [was] appropriate when the remedy of
appeal was available?

II

Whether the Decision of the trial court attained finality?

III

Whether the Honorable Third Division of the Court of Appeals [was] correct in entertaining and
in granting the Writ of Certiorari when the facts clearly establish[ed] that not only was [an]
appeal available, but x x x there were other plain, speedy and adequate remedies in the ordinary
course of law?

IV

Whether the Honorable Third Division of the Court of Appeals had jurisdiction to nullify and set
aside the Decision of the trial court and dismiss the case?

[Whether] receipt by a legal secretary of a summons [is deemed] receipt by a lawyer in

contemplation of law?6[6]

Simply stated, the issues boil down to the following: (1) whether the Petition for certiorari
before the CA was proper; and (2) whether the trial court acquired jurisdiction over respondents.

Since the Petition for certiorari was granted by the CA based on the trial courts alleged lack of
jurisdiction over respondents, the second issue shall be discussed ahead of the former.

The Courts Ruling

The present Petition is partly meritorious.

First Issue:
Jurisdiction over Defendants

Petitioner contends that the trial court validly acquired jurisdiction over the persons of
respondents, because the latter never denied that they had actually received the summons through
their secretary. Neither did they dispute her competence to receive it.
Moreover, he argues that respondents automatically submitted themselves to the jurisdiction of
the trial court when they filed, on November 9, 2000, an Omnibus Motion to Dismiss or Admit
Answer, a Motion to Dismiss on the grounds of improper venue and litis pendentia, and an
Answer with Counterclaim.

On the other hand, respondents insist that the substituted service of summons on them was
improper. Thus, they allege that the trial court did not have the authority to render its August 23,
2001 Decision.

We clarify.

Service of Summons

In civil cases, the trial court acquires jurisdiction over the person of the defendant either by the
service of summons or by the latters voluntary appearance and submission to the authority of the
former. Where the action is in personam and the defendant is in the Philippines, the service of
summons may be made through personal or substituted service in the manner provided for by
Sections 6 and 7 of Rule 14 of the Revised Rules of Court, which read:

Section 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.

Section 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 defendants office or regular place
of business with some competent person in charge thereof.

Personal service of summons is preferred over substituted service. Resort to the latter is
permitted when the summons cannot be promptly served on the defendant in person and after
stringent formal and substantive requirements have been complied with.7[7]

For substituted service of summons to be valid, it is necessary to establish the following

circumstances: (a) personal service of summons within a reasonable time was impossible; (b)
efforts were exerted to locate the party; and (c) the summons was served upon a person of
sufficient age and discretion residing at the partys residence or upon a competent person in
charge of the partys office or regular place of business.8[8] It is likewise required that the
pertinent facts proving these circumstances are stated in the proof of service or officers return.
In the present case, the Sheriffs Return9[9] failed to state that efforts had been made to personally
serve the summons on respondents. Neither did the Return indicate that it was impossible to do
so within a reasonable time. It simply stated:

THIS IS TO CERTIFY that on the 30th day of May 2000, copies of the summons together with
the complaint and annexes attached thereto were served upon the defendants Pablito M. Castillo
and Guia B. Castillo at their place of business at No. 7, 21st Avenue, Cubao, Quezon City thru
MS. ESTER FREGINAL, secretary, who is authorized to receive such kind of process. She
signed in receipt of the original as evidenced by her signature appearing on the original
summons.

That this return is submitted to inform the Honorable x x x Court that the same was duly
served.10[10]

Nonetheless, nothing in the records shows that respondents denied actual receipt of the summons
through their secretary, Ester Fraginal. Their Urgent Motion to Declare Service of Summons
Improper and Legally Defective11[11] did not deny receipt thereof; it merely assailed the manner
of its service. In fact, they admitted in their Motion that the summons, together with the
complaint, was served by the Sheriff on Ester Fraginal, secretary of the defendants at No. 7, 21st
Avenue, Cubao, Quezon City on 30 May 2000.12[12]

That the defendants actual receipt of the summons satisfied the requirements of procedural due
process had previously been upheld by the Court thus:

x x x [T]here is no question that summons was timely issued and received by private respondent.
In fact, he never denied actual receipt of such summons but confined himself to the argument
that the Sheriff should prove that personal service was first made before resorting to substituted
service.
This brings to the fore the question of procedural due process. In Montalban v. Maximo (22
SCRA 1077 [1968]) the Court ruled that The constitutional requirement of due process exacts
that the service be such as may be reasonably expected to give the notice desired. Once the
service provided by the rules reasonably accomplishes that end, the requirement of justice is
answered; the traditional notions of fair play are satisfied; due process is served.13[13]

There is likewise no showing that respondents had heretofore pursued the issue of lack of
jurisdiction; neither did they reserve their right to invoke it in their subsequent pleadings. If at
all, what they avoided forfeiting and waiving -- both in their Omnibus Motion ad Cautelam to
Admit Motion to Dismiss and Answer with Compulsory Counter-Claim14[14] and in their Motion
to Dismiss15[15] -- was their right to invoke the grounds of improper venue and litis pendentia.
They argued therein:

3. x x x. To be sure, the [respondents] have already prepared a finalized draft of their [M]otion to
[D]ismiss the case at bar, based on the twin compelling grounds of improper venue and [the]
additional fact that there exists a case between the parties involving the same transaction/s
covered by the plaintiffs cause of action. x x x;

4. That as things now stand, the [respondents] are confronted with the dilemma of filing their
[M]otion to [D]ismiss based on the legal grounds stated above and thus avoid forfeiture and
waiver of these rights as provided for by the Rules and also file the corresponding [M]otion to
[A]dmit x x x [A]nswer as mandated by the Omnibus Rule.

xxx xxx x x x16[16]

Verily, respondents did not raise in their Motion to Dismiss the issue of jurisdiction over their
persons; they raised only improper venue and litis pendentia. Hence, whatever defect there was
in the manner of service should be deemed waived.17[17]
Voluntary Appearance
and Submission

Assuming arguendo that the service of summons was defective, such flaw was cured and
respondents are deemed to have submitted themselves to the jurisdiction of the trial court when
they filed an Omnibus Motion to Admit the Motion to Dismiss and Answer with Counterclaim,
an Answer with Counterclaim, a Motion to Inhibit, and a Motion for Reconsideration and Plea to
Reset Pre-trial. The filing of Motions seeking affirmative relief -- to admit answer, for additional
time to file answer, for reconsideration of a default judgment, and to lift order of default with
motion for reconsideration -- are considered voluntary submission to the jurisdiction of the
court.18[18] Having invoked the trial courts jurisdiction to secure affirmative relief, respondents
cannot -- after failing to obtain the relief prayed for -- repudiate the very same authority they
have invoked.19[19]

Second Issue:
Propriety of the Petition for Certiorari

Petitioner contends that the certiorari Petition filed by respondents before the CA was improper,
because other remedies in the ordinary course of law were available to them. Thus, he argues that
the CA erred when it took cognizance of and granted the Petition.

Well-settled is the rule that certiorari will lie only when a court has acted without or in excess of
jurisdiction or with grave abuse of discretion.20[20] As a condition for the filing of a petition for
certiorari, Section 1 of Rule 65 of the Rules of Court additionally requires that no appeal nor any
plain, speedy and adequate remedy in the ordinary course of law must be available.21[21] It is
axiomatic that the availability of the right of appeal precludes recourse to the special civil action
for certiorari.22[22]
Here, the trial courts judgment was a final Decision that disposed of the case. It was therefore a
fit subject of an appeal.23[23] However, instead of appealing the Decision, respondents filed a
Petition for certiorari on September 11, 2001.

Be that as it may, a petition for certiorari may be treated as a petition for review under Rule 45.
Such move is in accordance with the liberal spirit pervading the Rules of Court and in the
interest of substantial justice, especially (1) if the petition was filed within the reglementary
period for filing a petition for review;24[24] (2) errors of judgment are averred;25[25] and (3) there is
sufficient reason to justify the relaxation of the rules.26[26] Besides, it is axiomatic that the nature
of an action is determined by the allegations of the complaint or petition and the character of the
relief sought.27[27] The Court explained:

x x x. It cannot x x x be claimed that this petition is being used as a substitute for appeal after
that remedy has been lost through the fault of petitioner. Moreover, stripped of allegations of
grave abuse of discretion, the petition actually avers errors of judgment rather than of
jurisdiction, which are the subject of a petition for review.28[28]

The present case satisfies all the above requisites. The Petition for certiorari before the CA was
filed within the reglementary period of appeal. A review of the records shows that respondents
filed their Petition on September 11, 2001 -- four days after they had received the RTC Decision.
Verily, there were still 11 days to go before the lapse of the period for filing an appeal. Aside
from charging grave abuse of discretion and lack of jurisdiction, they likewise assigned as errors
the order and the judgment of default as well as the RTCs allegedly unconscionable and
iniquitous award of liquidated damages.29[29] We find the latter issue particularly significant,
considering that the trial court awarded P1,500,000 as liquidated damages without the benefit of
a hearing and out of an obligation impugned by respondents because of petitioners failure to
pay.30[30] Hence, there are enough reasons to treat the Petition for certiorari as a petition for
review.

In view of the foregoing, we rule that the Petition effectively tolled the finality of the trial court
Decision.31[31] Consequently, the appellate court had jurisdiction to pass upon the assigned errors.
The question that remains is whether it was correct in setting aside the Decision and in
dismissing the case.

Trial Courts Default

Orders Erroneous

A review of the assailed Decision reveals that the alleged lack of jurisdiction of the trial court
over the defendants therein was the reason why the CA nullified the formers default judgment
and dismissed the case without prejudice. However, we have ruled earlier that the lower court
had acquired jurisdiction over them. Given this fact, the CA erred in dismissing the case; as a
consequence, it failed to rule on the propriety of the Order and the judgment of default. To avoid
circuitousness and further delay, the Court deems it necessary to now rule on this issue.

As much as possible, suits should be decided on the merits and not on technicalities.32[32] For this
reason, courts have repeatedly been admonished against default orders and judgments that lay
more emphasis on procedural niceties at the expense of substantial justice.33[33] Not being based
upon the merits of the controversy, such issuances may indeed amount to a considerable injustice
resulting in serious consequences on the part of the defendant. Thus, it is necessary to examine
carefully the grounds upon which these orders and judgments are sought to be set aside.34[34]

Respondents herein were declared in default by the trial court on May 22, 2001, purportedly
because of their delay in filing an answer. Its unexpected volte face came six months after it had
ruled to admit their Answer on November 16, 2000, as follows:

That with respect to the Motion to Admit Answer, this Court is not in favor of terminating this
case on the basis of technicality for failure to answer on time, hence, as ruled in the case of
Nantz v. Jugo and Cruz, 43 O.G. No. 11, p. 4620, it was held:

Lapses in the literal observance of a rule of procedure will be overlooked when they do not
involve public policy, when they arose from an honest mistake or unforeseen accident, when
they have not prejudiced the adverse party and have not deprived the court ot its authority.
Conceived in the best traditions of practical and moral justice and common sense, the Rules of
Court frown upon hairsplitting technicalities that do not square with their liberal tendency and
with the ends of justice unless something in the nature of the factors just stated intervene. x x x

WHEREFORE, x x x in the interest of justice, the Answer of the [respondents] is hereby

admitted.35[35]

Indiana Aerospace University v. Commission on Higher Education36[36] held that no practical

purpose was served in declaring the defendants in default when their Answer had already been
filed -- albeit after the 15-day period, but before they were declared as such. Applying that ruling
to the present case, we find that respondents were, therefore, imprudently declared in default.

WHEREFORE, the Petition is hereby GRANTED IN PART, and the Decision of the Court of
Appeals MODIFIED. The trial courts Order of Default dated May 22, 2001 and Judgment of
Default dated August 23, 2001 are ANNULLED, and the case remanded to the trial court for
further proceedings on the merits. No costs.

SO ORDERED.
MA. IMELDA M. MANOTOC, G.R. No. 130974

Petitioner,

Present:

- versus - QUISUMBING, J., Chairperson,

CARPIO,

CARPIO MORALES,

HONORABLE COURT OF TINGA, and

APPEALS and AGAPITA VELASCO, JR., JJ.

TRAJANO on behalf of the Estate

of ARCHIMEDES TRAJANO, Promulgated:

 Respondents. August 16, 2006

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The courts jurisdiction over a defendant is founded on a valid service of summons.

Without a valid service, the court cannot acquire jurisdiction over the defendant, unless the
defendant voluntarily submits to it. The defendant must be properly apprised of a pending action
against him and assured of the opportunity to present his defenses to the suit. Proper service of
summons is used to protect ones right to due process.

The Case

This Petition for Review on Certiorari37[1] under Rule 45 presents the core issue
whether there was a valid substituted service of summons on petitioner for the trial court to
acquire jurisdiction. Petitioner Manotoc claims the court a quo should have annulled the
proceedings in the trial court for want of jurisdiction due to irregular and ineffective service of
summons.

The Facts

Petitioner is the defendant in Civil Case No. 63337 entitled Agapita Trajano, pro se, and
on behalf of the Estate of Archimedes Trajano v. Imelda Imee R. Marcos-Manotoc38[2] for
Filing, Recognition and/or Enforcement of Foreign Judgment. Respondent Trajano seeks the
enforcement of a foreign courts judgment rendered on May 1, 1991 by the United States District
Court of Honolulu, Hawaii, United States of America, in a case entitled Agapita Trajano, et al. v.
Imee Marcos-Manotoc a.k.a. Imee Marcos, Civil Case No. 86-0207 for wrongful death of
deceased Archimedes Trajano committed by military intelligence officials of the Philippines
allegedly under the command, direction, authority, supervision, tolerance, sufferance and/or
influence of defendant Manotoc, pursuant to the provisions of Rule 39 of the then Revised Rules
of Court.

Based on paragraph two of the Complaint, the trial court issued a Summons39[3] on July
6, 1993 addressed to petitioner at Alexandra Condominium Corporation or Alexandra Homes, E2
Room 104, at No. 29 Meralco Avenue, Pasig City.
 On July 15, 1993, the Summons and a copy of the Complaint were allegedly served upon
(Mr.) Macky de la Cruz, an alleged caretaker of petitioner at the condominium unit mentioned
earlier.40[4] When petitioner failed to file her Answer, the trial court declared her in default

through an Order41[5] dated October 13, 1993.

On October 19, 1993, petitioner, by special appearance of counsel, filed a Motion to

Dismiss42[6] on the ground of lack of jurisdiction of the trial court over her person due to an
invalid substituted service of summons. The grounds to support the motion were: (1) the address
of defendant indicated in the Complaint (Alexandra Homes) was not her dwelling, residence, or
regular place of business as provided in Section 8, Rule 14 of the Rules of Court; (2) the party
(de la Cruz), who was found in the unit, was neither a representative, employee, nor a resident of
the place; (3) the procedure prescribed by the Rules on personal and substituted service of
summons was ignored; (4) defendant was a resident of Singapore; and (5) whatever judgment
rendered in this case would be ineffective and futile.

During the hearing on the Motion to Dismiss, petitioner Manotoc presented Carlos
Gonzales, who testified that he saw defendant Manotoc as a visitor in Alexandra Homes only
two times. He also identified the Certification of Renato A. de Leon, which stated that Unit E-
2104 was owned by Queens Park Realty, Inc.; and at the time the Certification was issued, the
unit was not being leased by anyone. Petitioner also presented her Philippine passport and the
Disembarkation/Embarkation Card43[7] issued by the Immigration Service of Singapore to
show that she was a resident of Singapore. She claimed that the person referred to in plaintiffs
Exhibits A to EEEE as Mrs. Manotoc may not even be her, but the mother of Tommy Manotoc,
and granting that she was the one referred to in said exhibits, only 27 out of 109 entries referred
to Mrs. Manotoc. Hence, the infrequent number of times she allegedly entered Alexandra Homes
did not at all establish plaintiffs position that she was a resident of said place.

On the other hand, Agapita Trajano, for plaintiffs estate, presented Robert Swift, lead
counsel for plaintiffs in the Estate of Ferdinand Marcos Human Rights Litigation, who testified
that he participated in the deposition taking of Ferdinand R. Marcos, Jr.; and he confirmed that
Mr. Marcos, Jr. testified that petitioners residence was at the Alexandra Apartment,
Greenhills.44[8] In addition, the entries45[9] in the logbook of Alexandra Homes from August
4, 1992 to August 2, 1993, listing the name of petitioner Manotoc and the Sheriffs
Return,46[10] were adduced in evidence.

On October 11, 1994, the trial court rejected Manotocs Motion to Dismiss on the strength
of its findings that her residence, for purposes of the Complaint, was Alexandra Homes, Unit E-
2104, No. 29 Meralco Avenue, Pasig, Metro Manila, based on the documentary evidence of
respondent Trajano. The trial court relied on the presumption that the sheriffs substituted service
was made in the regular performance of official duty, and such presumption stood in the absence
of proof to the contrary. 47[11]

On December 21, 1994, the trial court discarded Manotocs plea for reconsideration for
lack of merit.48[12]

Undaunted, Manotoc filed a Petition for Certiorari and Prohibition49[13] before the
Court of Appeals (CA) on January 20, 1995, docketed as CA-G.R. SP No. 36214 seeking the
annulment of the October 11, 1994 and December 21, 1994 Orders of Judge Aurelio C. Trampe.

Ruling of the Court of Appeals

On March 17, 1997, the CA rendered the assailed Decision,50[14] dismissing the
Petition for Certiorari and Prohibition. The court a quo adopted the findings of the trial court that
petitioners residence was at Alexandra Homes, Unit E-2104, at No. 29 Meralco Avenue, Pasig,
Metro Manila, which was also the residence of her husband, as shown by the testimony of Atty.
Robert Swift and the Returns of the registered mails sent to petitioner. It ruled that the
Disembarkation/Embarkation Card and the Certification dated September 17, 1993 issued by
Renato A. De Leon, Assistant Property Administrator of Alexandra Homes, were hearsay, and
that said Certification did not refer to July 1993the month when the substituted service was
effected.

In the same Decision, the CA also rejected petitioners Philippine passport as proof of her
residency in Singapore as it merely showed the dates of her departure from and arrival in the
Philippines without presenting the boilerplates last two (2) inside pages where petitioners
residence was indicated. The CA considered the withholding of those pages as suppression of
evidence. Thus, according to the CA, the trial court had acquired jurisdiction over petitioner as
there was a valid substituted service pursuant to Section 8, Rule 14 of the old Revised Rules of
Court.

On April 2, 1997, petitioner filed a Motion for Reconsideration51[15] which was denied

by the CA in its Resolution52[16] dated October 8, 1997.

Hence, petitioner has come before the Court for review on certiorari.

The Issues

Petitioner raises the following assignment of errors for the Courts consideration:

I. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS

ERROR IN RENDERING THE DECISION AND RESOLUTION IN
QUESTION (ANNEXES A AND B) IN DEFIANCE OF LAW AND
JURISPRUDENCE IN RULING THAT THE TRIAL COURT
ACQUIRED JURISDICTION OVER THE PERSON OF THE
PETITIONER THROUGH A SUBSTITUTED SERVICE OF SUMMONS
IN ACCORDANCE WITH SECTION 8, RULE 14 OF THE REVISED
RULES OF COURT.

II. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS

ERROR WHEN IT RULED THAT THERE WAS A VALID SERVICE OF
SUMMONS ON AN ALLEGED CARETAKER OF PETITIONERS
RESIDENCE IN COMPLETE DEFIANCE OF THE RULING IN
CASTILLO VS. CFI OF BULACAN, BR. IV, G.R. NO. L-55869,
FEBRUARY 20, 1984, 127 SCRA 632 WHICH DEFINES THE
PROPRIETY OF SUCH SERVICE UPON MERE OVERSEERS OF
PREMISES WHERE A PARTY SUPPOSEDLY RESIDES.

III. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS

ERROR IN CONCLUDING THAT THE RESIDENCE OF THE
HUSBAND IS ALSO THE RESIDENCE OF HIS WIFE CONTRARY TO
THE RULING IN THE BANK OF THE PHILIPPINE ISLANDS VS. DE
COSTER, G.R. NO. 23181, MARCH 16, 1925, 47 PHIL. 594.

IV. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS

ERROR IN FAILING TO APPLY THE RULE ON EXTRA-
 TERRITORIAL SERVICE OF SUMMONS UNDER SECTIONS 17 AND
18, RULE 14 OF THE REVISED RULES OF COURT.53[17]

The assigned errors bring to the fore the crux of the disagreementthe validity of the
substituted service of summons for the trial court to acquire jurisdiction over petitioner.

The Courts Ruling

We GRANT the petition.

Acquisition of Jurisdiction

Jurisdiction over the defendant is acquired either upon a valid service of summons or the
defendants voluntary appearance in court. When the defendant does not voluntarily submit to the
courts jurisdiction or when there is no valid service of summons, any judgment of the court
which has no jurisdiction over the person of the defendant is null and void.54[18] In an action
strictly in personam, personal service on the defendant is the preferred mode of service, that is,
by handing a copy of the summons to the defendant in person. If defendant, for excusable
reasons, cannot be served with the summons within a reasonable period, then substituted service
can be resorted to. While substituted service of summons is permitted, it is extraordinary in
character and in derogation of the usual method of service.55[19] Hence, it must faithfully and
strictly comply with the prescribed requirements and circumstances authorized by the rules.
Indeed, compliance with the rules regarding the service of summons is as much important as the
issue of due process as of jurisdiction.56[20]

Requirements for Substituted Service

Section 8 of Rule 14 of the old Revised Rules of Court which applies to this case
provides:

SEC. 8. 57[21] Substituted service. If the defendant cannot be served

within a reasonable time as provided in the preceding section [personal
service on defendant], service may be effected (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.

We can break down this section into the following requirements to effect a valid
substituted service:
(1) Impossibility of Prompt Personal Service

The party relying on substituted service or the sheriff must show that defendant cannot be
served promptly or there is impossibility of prompt service.58[22] Section 8, Rule 14 provides
that the plaintiff or the sheriff is given a reasonable time to serve the summons to the defendant
in person, but no specific time frame is mentioned. Reasonable time is defined as so much time
as is necessary under the circumstances for a reasonably prudent and diligent man to do,
conveniently, what the contract or duty requires that should be done, having a regard for the
rights and possibility of loss, if any[,] to the other party.59[23] Under the Rules, the service of
summons has no set period. However, when the court, clerk of court, or the plaintiff asks the
sheriff to make the return of the summons and the latter submits the return of summons, then the
validity of the summons lapses. The plaintiff may then ask for an alias summons if the service of
summons has failed.60[24] What then is a reasonable time for the sheriff to effect a personal
service in order to demonstrate impossibility of prompt service? To the plaintiff, reasonable time
means no more than seven (7) days since an expeditious processing of a complaint is what a
plaintiff wants. To the sheriff, reasonable time means 15 to 30 days because at the end of the
month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the
summons assigned to the sheriff for service. The Sheriffs Return provides data to the Clerk of
Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the
Court Administrator within the first ten (10) days of the succeeding month. Thus, one month
from the issuance of summons can be considered reasonable time with regard to personal service
on the defendant.

Sheriffs are asked to discharge their duties on the service of summons with due care,
utmost diligence, and reasonable promptness and speed so as not to prejudice the expeditious
dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish personal
service on defendant. On the other hand, since the defendant is expected to try to avoid and
evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in
serving the process on the defendant. For substituted service of summons to be available, there
must be several attempts by the sheriff to personally serve the summons within a reasonable
period [of one month] which eventually resulted in failure to prove impossibility of prompt
service. Several attempts means at least three (3) tries, preferably on at least two different dates.
In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.

(2) Specific Details in the Return

The sheriff must describe in the Return of Summons the facts and circumstances
surrounding the attempted personal service.61[25] The efforts made to find the defendant and
the reasons behind the failure must be clearly narrated in detail in the Return. The date and time
of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the
occupants of the alleged residence or house of defendant and all other acts done, though futile, to
serve the summons on defendant must be specified in the Return to justify substituted service.
The form on Sheriffs Return of Summons on Substituted Service prescribed in the Handbook for
Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to
find the defendant personally and the fact of failure.62[26] Supreme Court Administrative
Circular No. 5 dated November 9, 1989 requires that impossibility of prompt service should be
shown by stating the efforts made to find the defendant personally and the failure of such efforts,
which should be made in the proof of service.

(3) A Person of Suitable Age and Discretion

If the substituted service will be effected at defendants house or residence, it should be

left with a person of suitable age and discretion then residing therein.63[27] A person of suitable
age and discretion is one who has attained the age of full legal capacity (18 years old) and is
considered to have enough discernment to understand the importance of a summons. Discretion
is defined as the ability to make decisions which represent a responsible choice and for which an
understanding of what is lawful, right or wise may be presupposed.64[28] Thus, to be of
sufficient discretion, such person must know how to read and understand English to comprehend
the import of the summons, and fully realize the need to deliver the summons and complaint to
the defendant at the earliest possible time for the person to take appropriate action. Thus, the
person must have the relation of confidence to the defendant, ensuring that the latter would
receive or at least be notified of the receipt of the summons. The sheriff must therefore determine
if the person found in the alleged dwelling or residence of defendant is of legal age, what the
recipients relationship with the defendant is, and whether said person comprehends the
significance of the receipt of the summons and his duty to immediately deliver it to the defendant
or at least notify the defendant of said receipt of summons. These matters must be clearly and
specifically described in the Return of Summons.

(4) A Competent Person in Charge

If the substituted service will be done at defendants office or regular place of business,
then it should be served on a competent person in charge of the place. Thus, the person on whom
the substituted service will be made must be the one managing the office or business of
defendant, such as the president or manager; and such individual must have sufficient knowledge
to understand the obligation of the defendant in the summons, its importance, and the prejudicial
effects arising from inaction on the summons. Again, these details must be contained in the
Return.

Invalid Substituted Service in the Case at Bar

Let us examine the full text of the Sheriffs Return, which reads:

THIS IS TO CERTIFY that on many occasions several attempts were

made to serve the summons with complaint and annexes issued by this
Honorable Court in the above entitled case, personally upon the defendant
IMELDA IMEE MARCOS-MANOTOC located at Alexandra
Condominium Corpration [sic] or Alexandra Homes E-2 Room 104 No.
29 Merlaco [sic] Ave., Pasig, Metro-Manila at reasonable hours of the
day but to no avail for the reason that said defendant is usually out of her
place and/or residence or premises. That on the 15th day of July, 1993,
 substituted service of summons was resorted to in accordance with the
Rules of Court in the Philippines leaving copy of said summons with
complaint and annexes thru [sic] (Mr) Macky de la Cruz, caretaker of the
said defendant, according to (Ms) Lyn Jacinto, Receptionist and Telephone
Operator of the said building, a person of suitable age and discretion, living
with the said defendant at the given address who acknowledged the receipt
thereof of said processes but he refused to sign (emphases supplied).

WHEREFORE, said summons is hereby returned to this Honorable

Court of origin, duly served for its record and information.

Pasig, Metro-Manila July 15, 1993.65[29]

A meticulous scrutiny of the aforementioned Return readily reveals the absence of

material data on the serious efforts to serve the Summons on petitioner Manotoc in person. There
is no clear valid reason cited in the Return why those efforts proved inadequate, to reach the
conclusion that personal service has become impossible or unattainable outside the generally
couched phrases of on many occasions several attempts were made to serve the summons x x x
personally, at reasonable hours during the day, and to no avail for the reason that the said
defendant is usually out of her place and/or residence or premises. Wanting in detailed
information, the Return deviates from the rulingin Domagas v. Jensen66[30] and other related

cases67[31]that the pertinent facts and circumstances on the efforts exerted to serve the
summons personally must be narrated in the Return. It cannot be determined how many times, on
what specific dates, and at what hours of the day the attempts were made. Given the fact that the
substituted service of summons may be assailed, as in the present case, by a Motion to Dismiss,
it is imperative that the pertinent facts and circumstances surrounding the service of summons be
described with more particularity in the Return or Certificate of Service.

Besides, apart from the allegation of petitioners address in the Complaint, it has not been
shown that respondent Trajano or Sheriff Caelas, who served such summons, exerted
extraordinary efforts to locate petitioner. Certainly, the second paragraph of the Complaint only
states that respondents were informed, and so [they] allege about the address and whereabouts of
petitioner. Before resorting to substituted service, a plaintiff must demonstrate an effort in good
faith to locate the defendant through more direct means.68[32] More so, in the case in hand,
when the alleged petitioners residence or house is doubtful or has not been clearly ascertained, it
would have been better for personal service to have been pursued persistently.

In the case Umandap v. Sabio, Jr.,69[33] it may be true that the Court held that a
Sheriffs Return, which states that despite efforts exerted to serve said process personally upon
the defendant on several occasions the same proved futile, conforms to the requirements of valid
substituted service. However, in view of the numerous claims of irregularities in substituted
service which have spawned the filing of a great number of unnecessary special civil actions of
certiorari and appeals to higher courts, resulting in prolonged litigation and wasteful legal
expenses, the Court rules in the case at bar that the narration of the efforts made to find the
defendant and the fact of failure written in broad and imprecise words will not suffice. The facts
and circumstances should be stated with more particularity and detail on the number of attempts
made at personal service, dates and times of the attempts, inquiries to locate defendant, names of
occupants of the alleged residence, and the reasons for failure should be included in the Return to
satisfactorily show the efforts undertaken. That such efforts were made to personally serve
summons on defendant, and those resulted in failure, would prove impossibility of prompt
personal service.

Moreover, to allow sheriffs to describe the facts and circumstances in inexact terms
would encourage routine performance of their precise duties relating to substituted servicefor it
would be quite easy to shroud or conceal carelessness or laxity in such broad terms. Lastly,
considering that monies and properties worth millions may be lost by a defendant because of an
irregular or void substituted service, it is but only fair that the Sheriffs Return should clearly and
convincingly show the impracticability or hopelessness of personal service.

Granting that such a general description be considered adequate, there is still a serious
nonconformity from the requirement that the summons must be left with a person of suitable age
and discretion residing in defendants house or residence. Thus, there are two (2) requirements
under the Rules: (1) recipient must be a person of suitable age and discretion; and (2) recipient
must reside in the house or residence of defendant. Both requirements were not met. In this case,
the Sheriffs Return lacks information as to residence, age, and discretion of Mr. Macky de la
Cruz, aside from the sheriffs general assertion that de la Cruz is the resident caretaker of
petitioner as pointed out by a certain Ms. Lyn Jacinto, alleged receptionist and telephone
operator of Alexandra Homes. It is doubtful if Mr. de la Cruz is residing with petitioner Manotoc
in the condominium unit considering that a married woman of her stature in society would
unlikely hire a male caretaker to reside in her dwelling. With the petitioners allegation that
Macky de la Cruz is not her employee, servant, or representative, it is necessary to have
additional information in the Return of Summons. Besides, Mr. Macky de la Cruzs refusal to
sign the Receipt for the summons is a strong indication that he did not have the necessary
relation of confidence with petitioner. To protect petitioners right to due process by being
accorded proper notice of a case against her, the substituted service of summons must be shown
to clearly comply with the rules.
 It has been stated and restated that substituted service of summons must faithfully and
strictly comply with the prescribed requirements and in the circumstances authorized by the
rules. 70[34]

Even American case law likewise stresses the principle of strict compliance with statute
or rule on substituted service, thus:

The procedure prescribed by a statute or rule for substituted or

constructive service must be strictly pursued.71[35] There must be strict
compliance with the requirements of statutes authorizing substituted or
constructive service.72[36]

Where, by the local law, substituted or constructive service is in certain

situations authorized in the place of personal service when the latter is
inconvenient or impossible, a strict and literal compliance with the
provisions of the law must be shown in order to support the judgment based
on such substituted or constructive service.73[37] Jurisdiction is not to be
assumed and exercised on the general ground that the subject matter of the
suit is within the power of the court. The inquiry must be as to whether the
requisites of the statute have been complied with, and such compliance
must appear on the record.74[38] The fact that the defendant had actual
knowledge of attempted service does not render the service effectual if in
 fact the process was not served in accordance with the requirements of the
statute.75[39]

Based on the above principles, respondent Trajano failed to demonstrate that there was
strict compliance with the requirements of the then Section 8, Rule 14 (now Section 7, Rule 14
of the 1997 Rules of Civil Procedure).

Due to non-compliance with the prerequisites for valid substituted service, the
proceedings held before the trial court perforce must be annulled.

The court a quo heavily relied on the presumption of regularity in the performance of
official duty. It reasons out that [t]he certificate of service by the proper officer is prima facie
evidence of the facts set out herein, and to overcome the presumption arising from said
certificate, the evidence must be clear and convincing.76[40]

The Court acknowledges that this ruling is still a valid doctrine. However, for the
presumption to apply, the Sheriffs Return must show that serious efforts or attempts were exerted
to personally serve the summons and that said efforts failed. These facts must be specifically
narrated in the Return. To reiterate, it must clearly show that the substituted service must be
made on a person of suitable age and discretion living in the dwelling or residence of defendant.
Otherwise, the Return is flawed and the presumption cannot be availed of. As previously
explained, the Return of Sheriff Caelas did not comply with the stringent requirements of Rule
14, Section 8 on substituted service.

In the case of Venturanza v. Court of Appeals,77[41] it was held that x x x the

presumption of regularity in the performance of official functions by the sheriff is not
applicable in this case where it is patent that the sheriffs return is defective (emphasis
supplied). While the Sheriffs Return in the Venturanza case had no statement on the effort or
attempt to personally serve the summons, the Return of Sheriff Caelas in the case at bar merely
described the efforts or attempts in general terms lacking in details as required by the ruling in
the case of Domagas v. Jensen and other cases. It is as if Caelas Return did not mention any
effort to accomplish personal service. Thus, the substituted service is void.

On the issue whether petitioner Manotoc is a resident of Alexandra Homes, Unit E-2104,
at No. 29 Meralco Avenue, Pasig City, our findings that the substituted service is void has
rendered the matter moot and academic. Even assuming that Alexandra Homes Room 104 is her
actual residence, such fact would not make an irregular and void substituted service valid and
effective.

IN VIEW OF THE FOREGOING, this Petition for Review is hereby

GRANTED and the assailed March 17, 1997 Decision and October 8, 1997
Resolution of the Court of Appeals and the October 11, 1994 and December 21,
1994 Orders of the Regional Trial Court, National Capital Judicial Region, Pasig
City, Branch 163 are hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

[G.R. No. 140153. March 28, 2001]

ANTONIO DOCENA and ALFREDA DOCENA, petitioners, vs. HON. RICARDO P.

LAPESURA, in his capacity as Presiding Judge of the RTC, Branch III, Guian, Eastern Samar;
RUFINO M. GARADO, Sheriff IV; and CASIANO HOMBRIA, respondents.

DECISION

GONZAGA-REYES, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the
nullification of the Court of Appealsi[1] Resolutions dated June 18, 1999 and September 9, 1999
which dismissed the Petition for Certiorari and Prohibitionii[2] under Rule 65 and denied the
corresponding motion for reconsideration, respectively.

The antecedent facts are as follows:

On June 1, 1977, private respondent Casiano Hombria filed a Complaint for the recovery of a
parcel of land against his lessees, petitioner-spouses Antonio and Alfreda Docena.iii[3] The
petitioners claimed ownership of the land based on occupation since time immemorial.iv[4] A
certain Guillermo Abuda intervened in the case. In a Decision dated November 24, 1989, the trial
court ruled in favor of the petitioners and the intervenor Abuda.v[5] On appeal, the Court of
Appeals reversed the judgment of the trial court and ordered the petitioners to vacate the land
they have leased from the plaintiff-appellant [private respondent Casiano Hombria], excluding
the portion which the petitioners reclaimed from the sea and forms part of the shore, as shown in
the Commissioners Report, and to pay the plaintiff-appellant the agreed rental of P1.00 per year
from the date of the filing of the Complaint until they shall have actually vacated the
premises.vi[6] The Complaint in Intervention of Abuda was dismissed.vii[7]

On May 22, 1995, private respondent Hombria filed a Motion for Execution of the above
decision which has already become final and executory.viii[8] The motion was granted by the
public respondent judge, and a Writ of Execution was issued therefor. However, the public
respondent sheriff subsequently filed a Manifestation requesting that he be clarified in the
determination of that particular portion which is sought to be excluded prior to the delivery of
the land adjudged in favor of plaintiff Casiano Hombria in view of the defects in the
Commissioners Report and the Sketches attached thereto.ix[9] After requiring the parties to file
their Comment on the sheriffs Manifestation, the public respondent judge, in a Resolution dated
August 30, 1996, held that xxx no attempt should be made to alter or modify the decision of the
Court of Appeals. What should be delivered therefore to the plaintiff xxx is that portion leased by
the defendant-appellees from the plaintiff-appellant excluding the portion that the defendant-
appellee have reclaimed from the sea and forms part of the shore as shown in the commissioners
report xxx.x[10] Pursuant to the Resolution, the public respondent sheriff issued an alias Writ of
Demolition. The petitioners filed a Motion to Set Aside or Defer the Implementation of Writ of
Demolition. This motion was denied by the public respondent judge in an Order dated November
18, 1998, a copy of which was received by the petitioners on December 29, 1998.xi[11] Also on
December 29, 1998, the public respondent judge, in open court, granted the petitioners until
January 13, 1999 to file a Motion for Reconsideration.xii[12] On January 13, 1999, petitioners
moved for an extension of the period to file a motion for reconsideration until January 28,
1999.xiii[13] The motion was finally filed by the petitioners on January 27, 1999, but was denied
by the trial court in an Order dated March 17, 1999.xiv[14] A copy of the Order was received by
the petitioners on May 4, 1999.xv[15]

A Petition for Certiorari and Prohibition was filed by the petitioners with the Court of Appeals,
alleging grave abuse of discretion on the part of the trial court judge in issuing the Orders dated
November 18, 1998 and March 17, 1999, and of the sheriff in issuing the alias Writ of
Demolition. In a Resolution dated June 18, 1999, the Court of Appeals dismissed the petition on
the grounds that the petition was filed beyond the 60-day period provided under Section 4 of
Rule 65 of the 1997 Revised Rules of Civil Procedure as amended by Bar Matter No. 803
effective September 1, 1998, and that the certification of non-forum shopping attached thereto
was signed by only one of the petitioners.xvi[16] The Motion for Reconsideration filed by the
petitioners was denied by the Court of Appeals in a Resolution dated September 9, 1999.xvii[17]

Hence this petition.

The sole issue in this case is whether or not the Court of Appeals erred in dismissing the Petition
for Certiorari and Prohibition.

The petition is meritorious.

The Court of Appeals dismissed the Petition for Certiorari upon the following grounds, viz: (1)
the petition was filed beyond the 60-day period provided under Sec. 4, Rule 65 of the 1997
Revised Rules of Civil Procedure as amended by Bar Matter No. 803 effective September 1,
1998; and (2) the certification of non-forum shopping was signed by only one of the petitioners.

Upon the first ground, the Court of Appeals stated in its Resolution dated June 18, 1999 that:
xxx the 60-day period is counted not from the receipt of the Order denying their Motion for
Reconsideration but from the date of receipt of the Order of November 18, 1998 which was on
December 29, 1998, interrupted by the filing of the Motion for Reconsideration on January 27,
1999. The Motion for Reconsideration was denied in an Order dated March 17, 1999 received by
the petitioners on May 4, 1999. Counting the remaining period, this petition should have been
filed on June 4, 1999 but it was filed only on June 14, 1999 or ten (10) days beyond the 60-day
period computed in accordance with Bar Matter No. 803.

xxx xxx xxxxviii[18]

The petitioners agree that the counting of the 60-day period should commence on December 29,
1998, the date of the receipt by the petitioners of the assailed trial court order, interrupted by the
filing of a motion for reconsideration on January 27, 1999, and resume upon receipt by the
petitioners of the denial of the motion by the trial court on May 4, 1999; however, the petitioners
contend that from December 29, 1998 up to January 27, 1999, only the 15-day period allowed
for the filing of a motion for reconsiderationxix[19] should be deemed to have elapsed considering
the grant by the trial court of an extension of the period to file the motion until January 13, 1999.
Hence, on May 4, 1999, the petitioners still had 45 days to file a petition for certiorari and/or
prohibition, and the filing made on June 14, 1999 was timely.

We hold that the Petition for Certiorari and Prohibition has been timely filed.

A.M. No. 00-2-03-SC, which took effect on September 1, 2000, amended Section 4 of Rule 65 of
the 1997 Revised Rules of Civil Procedurexx[20] to provide thus:

SEC. 4. When and where petition filed.-- The petition shall be filed not later than sixty (60) days
from notice of the judgment, order or resolution. In case a motion for reconsideration or new
trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be
counted from notice of the denial of said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower
court or of a corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed
in and cognizable only by the Court of Appeals.

No extension of time to file the petition shall be granted except for compelling reason and in no
case exceeding fifteen (15) days. [Emphasis ours]

In the case of Systems Factors Corporation versus NLRC,xxi[21] we held that the abovequoted
Resolution, being procedural in nature, is applicable to actions pending and undetermined at the
time of their passage. The retroactive application of procedural laws such as this Resolution is
not violative of any right of a person who may feel adversely affected thereby, as no vested right
may attach to nor arise from procedural laws.xxii[22] The ruling in the Systems Factors case was
reiterated in the recent case of Unity Fishing Development Corporation, et. al. vs. Court of
Appeals, et. al.xxiii[23] Applying the Resolution to the case at bar, the 60-day period for the filing
of a petition for certiorari and prohibition should be reckoned from the date of receipt of the
order denying the motion for reconsideration, i.e., May 4, 1999, and thus, the filing made on
June 14, 1999 was well within the 60-day reglementary period.

Anent the ground that the certification of non-forum shopping was signed by only one of the
petitioners, it is the contention of the petitioners that the same is sufficient compliance with the
requirements of Sections 1 and 2 of Rule 65 (Petition for Certiorari and Prohibition) in relation to
Section 3 of Rule 46 (Original Cases Filed in the Court of Appeals). The petitioners argue that
since they are spouses with joint or indivisible interest over the alleged conjugal property subject
of the original action which gave rise to the petition for certiorari and prohibition, the signing of
the certificate of non-forum shopping by only one of them would suffice, especially considering
the long distance they had to travel just to sign the said certificate.xxiv[24] Moreover, there is
substantial compliance with the Rules of Court where the certification was signed by the husband
who is the statutory administrator of the conjugal property.xxv[25]

It has been our previous ruling that the certificate of non-forum shopping should be signed by all
the petitioners or plaintiffs in a case, and that the signing by only one of them is insufficient. In
the case of Efren Loquias, et. al. vs. Office of the Ombudsman, et. al.,xxvi[26] we held that the
signing of the Verification and the Certification on Non-Forum Shopping by only one of the
petitioners constitutes a defect in the petition.xxvii[27] The attestation contained in the
certification on non-forum shopping requires personal knowledge by the party executing the
same,xxviii[28] and the lone signing petitioner cannot be presumed to have personal knowledge of
the filing or non-filing by his co-petitioners of any action or claim the same as or similar to the
current petition. To merit the Courts consideration, petitioners must show reasonable cause for
failure to personally sign the certification.

In the case at bar, however, we hold that the subject Certificate of Non-Forum Shopping signed
by the petitioner Antonio Docena alone should be deemed to constitute substantial compliance
with the rules.xxix[29] There are only two petitioners in this case and they are husband and wife.
Their residence is the subject property alleged to be conjugal in the instant verified petition. The
Verification/Certification on Non-Forum Shoppingxxx[30] attached to the Petition for Certiorari
and Prohibition was signed only by the husband who certified, inter alia, that he and his wife
have not commenced any other action or proceeding involving the same issues raised in the
petition in any court, tribunal or quasi-judicial agency; that to the best of their knowledge no
such action is pending therein; and that he and his wife undertake to inform the Court within five
(5) days from notice of any similar action or proceeding which may have been filed.

The property subject of the original action for recovery is conjugal. Whether it is conjugal under
the New Civil Code or the Family Code, a fact that cannot be determined from the records before
us, it is believed that the certificate on non-forum shopping filed in the Court of Appeals
constitutes sufficient compliance with the rules on forum-shopping.

Under the New Civil Code, the husband is the administrator of the conjugal partnership.xxxi[31]
In fact, he is the sole administrator, and the wife is not entitled as a matter of right to join him in
this endeavor.xxxii[32] The husband may defend the conjugal partnership in a suit or action
without being joined by the wife.xxxiii[33] Corollarily, the husband alone may execute the
necessary certificate of non-forum shopping to accompany the pleading. The husband as the
statutory administrator of the conjugal property could have filed the petition for certiorari and
prohibitionxxxiv[34] alone, without the concurrence of the wife. If suits to defend an interest in
the conjugal properties may be filed by the husband alone, with more reason, he may sign the
certificate of non-forum shopping to be attached to the petition.

Under the Family Code, the administration of the conjugal property belongs to the husband and
the wife jointly.xxxv[35] However, unlike an act of alienation or encumbrance where the consent
of both spouses is required, joint management or administration does not require that the
husband and wife always act together. Each spouse may validly exercise full power of
management alone, subject to the intervention of the court in proper cases as provided under
Article 124 of the Family Code.xxxvi[36] It is believed that even under the provisions of the
Family Code, the husband alone could have filed the petition for certiorari and prohibition to
contest the writs of demolition issued against the conjugal property with the Court of Appeals
without being joined by his wife. The signing of the attached certificate of non-forum shopping
only by the husband is not a fatal defect.

More important, the signing petitioner here made the certification in his behalf and that of his
wife. The husband may reasonably be presumed to have personal knowledge of the filing or non-
filing by his wife of any action or claim similar to the petition for certiorari and prohibition given
the notices and legal processes involved in a legal proceeding involving real property. We also
see no justifiable reason why he may not lawfully undertake together with his wife to inform the
court of any similar action or proceeding which may be filed. If anybody may repudiate the
certification or undertaking for having been incorrectly made, it is the wife who may conceivably
do so.

In view of the circumstances of this case, namely, the property involved is a conjugal property,
the petition questioning the writ of demolition thereof originated from an action for recovery
brought against the spouses, and is clearly intended for the benefit of the conjugal partnership,
and the wife, as pointed out in the Motion for Reconsideration in respondent court, was in the
province of Guian, Samar, whereas the petition was prepared in Metro Manila, a rigid
application of the rules on forum shopping that would disauthorize a husbands signing the
certification in his behalf and that of his wife is too harsh and is clearly uncalled for.

It bears stressing that the rules on forum shopping, which were designed to promote and facilitate
the orderly administration of justice, should not be interpreted with such absolute literalness as to
subvert its own ultimate and legitimate objective.xxxvii[37]

The petitioners motion for the issuance of a temporary restraining order to put on hold the
demolition of the subject property is principally anchored on their alleged right to the
nullification of the assailed orders and writs issued by the public respondents.xxxviii[38] As the
existence of the right being asserted by the petitioners is a factual issue proper for determination
by the Court of Appeals, the motion based thereon should likewise be addressed to the latter
court.
WHEREFORE, premises considered, the petition is hereby GRANTED. The Court of Appeals
Resolutions dated June 18, 1999 and September 9, 1999 are hereby SET ASIDE and the case is
REMANDED to the Court of Appeals for further proceedings.

SO ORDERED.

G.R. No. 155488 December 6, 2006

ERLINDA R. VELAYO-FONG, petitioner,

vs.
SPOUSES RAYMOND and MARIA HEDY VELAYO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure seeking the reversal of the Decision1 of the Court of Appeals (CA) dated May 14,
2002 in CA-G.R. CV No. 54434 which affirmed the Decision of the Regional Trial Court,
Branch 105, Quezon City (RTC) in Civil Case No. Q-93-17133; and the CA Resolution2 dated
October 1, 2002 which denied petitioner's motion for reconsideration.

The procedural antecedents and factual background of the case are as follows:

On August 9, 1993, Raymond Velayo (Raymond) and his wife, Maria Hedy Velayo
(respondents) filed a complaint for sum of money and damages with prayer for preliminary
attachment against Erlinda R. Velayo-Fong (petitioner), Rodolfo R. Velayo, Jr. (Rodolfo Jr.) and
Roberto R. Velayo (Roberto).3 Raymond is the half-brother of petitioner and her co-defendants.

In their Complaint, respondents allege that petitioner, a resident of 1860 Alamoana Boulevard,
Honolulu, Hawaii, USA, and her co-defendants, who are residents of the Philippines, made it
appear that their common father, Rodolfo Velayo, Sr. (Rodolfo Sr.) and petitioner had filed a
complaint against Raymond before the National Bureau of Investigation (NBI), accusing
Raymond of the crimes of estafa and kidnapping a minor; that petitioner and her co-defendants
also requested that respondents be included in the Hold Departure List of the Bureau of
Immigration and Deportation (BID) which was granted, thereby preventing them from leaving
the country and resulting in the cancellation of respondents' trips abroad and caused all of
respondents' business transactions and operations to be paralyzed to their damage and prejudice;
that petitioner and her co-defendants also filed a petition before the Securities and Exchange
Commission (SEC) docketed as Case No. 4422 entitled "Rodolfo Velayo Sr. et al. v. Raymond
Velayo et al." which caused respondents' funds to be frozen and paralyzed the latters' business
transactions and operations to their damage and prejudice. Since petitioner was a non-resident
and not found in the Philippines, respondents prayed for a writ of preliminary attachment against
petitioner's properties located in the Philippines.

Before respondents' application for a writ of preliminary attachment can be acted upon by the
RTC, respondents filed on September 10, 1993 an Urgent Motion praying that the summons
addressed to petitioner be served to her at Suite 201, Sunset View Towers Condominium, Roxas
Boulevard, Pasay City and at No. 5040 P. Burgos Street, T. Towers Condominium, Makati.4 In
its Order dated September 13, 1993, the RTC granted the said motion.5

The Process Server submitted the Officer's Return, to wit:

THIS IS TO CERTIFY, that after several failed attempts to serve the copy of summons
and complaint issued in the above-entitled case at the given addresses of defendant
Erlinda Velayo as mentioned in the Order of this Court dated September 13, 1993,
finally, on the 23rd day of September, 1993, at the instance of herein plaintiffs through
counsel, undersigned was able to SERVED (sic) personally upon defendant Erlinda
Velayo the copy of summons together with the thereto attached copy of the complaint,
not at her two (2) given addresses, but at the lobby of Intercontinental Hotel, Makati,
Metro Manila, right in the presence of lobby counter personnel by the name of Ms. A.
Zulueta, but said defendant refused to sign in receipt thereof.

I FURTHER CERTIFY, that on the 27th day of September, 1993, copy of the same WAS
SERVED personally upon the other defendant Rodolfo R. Velayo, Jr., at No. Block 57,
Lots 17 and 19, G. Sanchez Street, BF Resort Village, Las Piñas, Metro Manila, but who
also refused to sign in receipt thereof.

WHEREFORE, original copy of the summons is now being respectfully returned to the
Honorable Court DULY SERVED.

Quezon City, Philippines, September 30, 1993.6

Upon ex-parte motions7 of respondents, the RTC in its Order dated November 23, 1993 and
January 5, 1994, declared petitioner and her co-defendant in default for failure to file an answer
and ordered the ex-parte presentation of respondents' evidence.8

On June 15, 1994, the RTC rendered its Decision in respondents' favor, the dispositive portion of
which reads:
 WHEREFORE, premises considered, judgment is hereby rendered ordering the
defendants to pay the plaintiffs:

1. the amount of P65,000.00 as actual damages;

2. the amount of P200,000.00 as moral damages;

3. Attorney's fees in the amount of P5,000,00 it being a judgment by default; and

4. cost of suit.

SO ORDERED.9

On September 1, 1994, petitioner filed a Motion to Set Aside Order of Default claiming that she
was prevented from filing a responsive pleading and defending herself against respondents'
complaint because of fraud, accident or mistake; that contrary to the Officer's Return, no
summons was served upon her; that she has valid and meritorious defenses to refute respondents'
material allegations.10 Respondents opposed said Motion.11

In its Order dated May 29, 1995, the RTC denied petitioner's Motion ruling that the presumption
of regularity in the discharge of the function of the Process Server was not sufficiently overcome
by petitioner's allegation to the contrary; that there was no evident reason for the Process Server
to make a false narration regarding the service of summons to defaulting defendant in the
Officer's Return.12

On September 4, 1995, respondents filed a Motion for Execution.13 On September 22, 1995,
petitioner filed an Opposition to Motion for Execution contending that she has not yet received
the Decision and it is not yet final and executory as against her.14

In its Order dated January 3, 1996, the RTC, finding that the Decision dated June 15, 1994 and
the Order dated May 29, 1995 were indeed not furnished or served upon petitioner, denied
respondents' motion for execution against petitioner and ordered that petitioner be furnished the
said Decision and Order.15

On March 28, 1996, the RTC issued an Order directing the issuance of the writ of execution
against petitioner's co-defendant.16

On May 23, 1996, petitioner, through her counsel, finally received the Decision dated June 15,
1994 and the Order dated May 29, 1995.17

Petitioner filed an appeal with the CA questioning the propriety and validity of the service of
summons made upon her. Respondents opposed the appeal, arguing that the petition should be
dismissed since it raised pure questions of law, which is not within the CA's jurisdiction to
resolve under Section 2 (c) of Rule 41 of the Revised Rules of Court; that, in any case,
petitioner's reliance on the rule of extraterritorial service is misplaced; that the judgment by
default has long been final and executory since as early as August 1994 petitioner became aware
of the judgment by default when she verified the status of the case; that petitioner should have
filed a motion for new trial or a petition for relief from judgment and not a motion to set aside
the order of default since there was already a judgment by default.

On May 14, 2002, the CA rendered its Decision affirming the Decision and Order of the RTC18
ruling that it (CA) has jurisdiction since the petition raised a question of fact, that is, whether
petitioner was properly served with summons; that the judgment by default was not yet final and
executory against petitioner since the records reveal and the RTC Order dated January 3, 1996
confirmed that she was not furnished or served a copy of the decision; that petitioner was validly
served with summons since the complaint for damages is an action in personam and only
personal, not extraterritorial service, of summons, within the forum, is essential for the
acquisition of jurisdiction over her person; that petitioner's allegations that

she did not know what was being served upon her and that somebody just hurled papers at her
were not substantiated by competent evidence and cannot overcome the presumption of
regularity of performance of official functions in favor of the Officer's Return.

Petitioner filed a Motion for Reconsideration19 but the CA denied it in its Resolution dated
October 1, 2002.20

Hence, the present petition anchored on the following grounds:

THE COURT OF APPEALS PATENTLY ERRED IN NOT RULING THAT

PETITIONER WAS NOT VALIDLY SERVED WITH SUMMONS.

II

THE COURT OF APPEALS PATENTLY ERRED IN NOT RULING THAT

PETITIONER WAS PREVENTED FROM FILING RESPONSIVE PLEADING AND
DEFENDING AGAINST RESPONDENTS' COMPLAINT BECAUSE OF FRAUD,
ACCIDENT AND MISTAKE.21

Parties filed their respective Memoranda on September 8 and 9, 2005.

Petitioner argues that summons should have been served through extraterritorial service since she
is a non-resident; that the RTC should have lifted the order of default since a default judgment is
frowned upon and parties should be given their day in court; that she was prevented from filing a
responsive pleading and defending against respondents' complaint

through fraud, accident or mistake considering that the statement in the Officer's Return that she
was personally served summons is inaccurate; that

she does not remember having been served with summons during the said date but remembers
that a man hurled some papers at her while she was entering the elevator and, not knowing what
the papers were all about, she threw back the papers to the man before the elevator closed; that
she has a valid and meritorious defense to refute the material allegations of respondents'
complaint.

On the other hand, respondents contend that petitioner was validly served with summons since
the rules do not require that service be made upon her at her place of residence as alleged in the
complaint or stated in the summons; that extraterritorial service applies only when the defendant
does not reside and is not found in the Philippines; that petitioner erred in filing a motion to set
aside the order of default at the time when a default judgment was already rendered by the RTC
since the proper remedy is a motion for new trial or a petition for relief from judgment under
Rule 38; that the issue on summons is a pure question of law which the CA does not have
jurisdiction to resolve under Section 2 (c) of Rule 41 of the 1997 Rules of Civil Procedure.22

The Court finds it proper to resolve first whether the issue involved in the appeal filed with the
CA is a question of law and therefore not within the jurisdiction of the CA to resolve.

In Murillo v. Consul,23 which was later adopted by the 1997 Rules of Civil Procedure, the Court
clarified the three modes of appeal from decisions of the RTC, namely: (a) ordinary appeal or
appeal by writ of error, where judgment was rendered in a civil or criminal action by the RTC in
the exercise of original jurisdiction; (b) petition for review, where judgment was

rendered by the RTC in the exercise of appellate jurisdiction; and (c) petition for review to the
Supreme Court.

The first mode of appeal, governed by Rule 41, is taken to the Court of Appeals on questions of
fact or mixed questions of fact and law. The second mode of appeal, covered by Rule 42, is
brought to the Court of Appeals on questions of fact, of law, or mixed questions of fact and law.
The third mode of appeal, provided for by Rule 45, is elevated to the Supreme Court only on
questions of law.

A question of law arises when there is doubt as to what the law is on a certain state of facts,
while there is a question of fact when the doubt arises as to the truth or falsity of the alleged
facts.24 For a question to be one of law, the same must not involve an examination of the
probative value of the evidence presented by the litigants or any of them.25 The resolution of the
issue must rest solely on what the law provides on the given set of circumstances. Once it is clear
that the issue invites a review of the evidence presented, the question posed is one of fact.26
Thus, the test of whether a question is one of law or of fact is not the appellation given to such
question by the party raising the same; rather, it is whether the appellate court can

determine the issue raised without reviewing or evaluating the evidence, in which case, it is a
question of law; otherwise it is a question of fact.27

Respondents' claim that the issues raised by petitioner before the CA are pure legal questions is
not tenable.
A scrutiny of petitioner's petition before the CA reveals that it raised two issues: (a) the propriety
of the service effected on a non-resident; and (b) the validity of the service made upon her. The
first is a question of law. There is indeed a question as to what and how the law should be
applied. The second is a question of fact. The resolution of said issue entails a review of the
factual circumstances that led the RTC to conclude that service was validly effected upon
petitioner. Therefore, petitioner properly brought the case to the CA via the first mode of appeal
under the aegis of Rule 41.

How may service of summons be effected on a non-resident?

Section 17,28 Rule 14 of the Rules of Court provides:

Section 17. Extraterritorial service – When the defendant does not reside and is not
found in the Philippines and the action affects the personal status of the plaintiff or relates
to, or the subject of which, is property within the Philippines, in which the defendant has
or claims a lien or interest, actual or contingent, or in which relief demanded consists,
wholly or in part, in excluding the defendant from any interest therein, or the property of
the defendant has been attached in the Philippines, service may, by leave of court, be
effected out of the Philippines by personal service as under section 7; or by publication in
a newspaper of general circulation in such places and for such time as the court may
order, in which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant, or in any other manner the
court may deem sufficient. Any order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) days after notice, within which the defendant must
answer.

Under this provision, when the defendant is a nonresident and he is not found in the country,
summons may be served extraterritorially. There are only four instances when extraterritorial
service of summons is proper, namely: (a) when the action affects the personal status of the
plaintiffs; (b) when the action relates to, or the subject of which is property, within the
Philippines, in which the defendant claims a lien or interest, actual or contingent; (c) when the
relief demanded in such action consists, wholly or in part, in excluding the defendant from any
interest in property located in the Philippines; and (d) when the defendant's property has been
attached within the Philippines. In these instances, service of summons may be effected by (a)
personal service out of the country, with leave of court; (b) publication, also with leave of court;
or (c) any other manner the court may deem sufficient.

Thus, extrajudicial service of summons apply only where the action is in rem, that is, an action
against the thing itself instead of against the person, or in an action quasi in rem, where an
individual is named as defendant and the purpose of the proceeding is to subject his interest
therein to the obligation or loan burdening the property. The rationale for this is that in in rem
and quasi in rem actions, 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.29
Where the action is in personam, that is, one brought against a person on the basis of her
personal liability, jurisdiction over the person of the defendant is necessary for the court to
validly try and decide the case. When the defendant is a non-resident, personal service of
summons within the state is essential to the acquisition of jurisdiction over the person.30
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.31 This cannot be done, however, 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.32

In the present case, respondents' cause of action in Civil Case No. Q-93-17133 is anchored on
the claim that petitioner and her co-defendants maliciously instituted a criminal complaint before
the NBI and a petition before the SEC which prevented the respondents from leaving the country
and paralyzed the latters' business transactions. Respondents pray that actual and moral damages,
plus attorney's fees, be awarded in their favor. The action instituted by respondents affect the
parties alone, not the whole world. Any judgment therein is binding only upon the parties
properly impleaded.33 Thus, it is an action in personam. As such, personal service of summons
upon the defendants is essential in order for the court to acquire jurisdiction over their persons.34

The Court notes that the complaint filed with the RTC alleged that petitioner is a non-resident
who is not found in the Philippines for which reason respondents initially prayed that a writ of
preliminary attachment be issued against her properties within the Philippines to confer
jurisdiction upon the RTC. However, respondents did not pursue its application for said writ
when petitioner was subsequently found physically present in the Philippines and personal
service of summons was effected on her.

Was there a valid service of summons on petitioner? The answer is in the affirmative.

Petitioner's bare allegation that the statement in the "Officer's Return that she was personally
served summons is inaccurate" is not sufficient. A process server's certificate of service is prima
facie evidence of the facts as set out in the certificate.35 Between the claim of non-receipt of
summons by a party against the assertion of an official whose duty is to send notices, the latter
assertion is fortified by the presumption that official duty has been regularly performed.36 To
overcome the presumption of regularity of performance of official functions in favor of such
Officer's Return, the evidence against it must be clear and convincing. Petitioner having been
unable to come forward with the requisite quantum of proof to the contrary, the presumption of
regularity of performance on the part of the process server stands.

The Court need not make a long discussion on the propriety of the remedy adopted by petitioner
in the RTC of filing a motion to set aside the order of default at a time when there was already a
judgment by default. As aptly held by the CA, since petitioner was not furnished or served a
copy of the judgment of default, there was no notice yet of such judgment as against her. Thus,
the remedy of filing a motion to set aside the order of default in the RTC was proper.

Petitioner's argument that the RTC should have set aside the order of default and applied the
liberal interpretation of rules with a view of affording parties their day in court is not tenable.
While indeed default orders are not viewed with favor, the party seeking to have the order of
default lifted must

first show that her failure to file an answer or any other responsive pleading was due to fraud,
accident, mistake, or excusable neglect and then she must show that she has a valid and
meritorious defense.37

In this case, petitioner failed to show that her failure to file an answer was due to fraud, accident,
mistake or excusable neglect. Except for her bare unsupported allegation that the summons were
only thrown to her at the elevator, petitioner did not present any competent evidence to justify
the setting aside of the order of default.

Moreover, when a party files a motion to lift order of default, she must also show that she has a
meritorious defense or that something would be gained by having the order of default set aside.38
The term meritorious defense implies that the applicant has the burden of proving such a defense
in order to have the judgment set aside. The cases usually do not require such a strong showing.
The test employed appears to be essentially the same as used in considering summary judgment,
that is, whether there is enough evidence to present an issue for submission to the trier of fact, or
a showing that on the undisputed facts it is not clear that the judgment is warranted as a matter of
law. 39 The defendant must show that she has a meritorious defense otherwise the grant of her
motion will prove to be a useless exercise. Thus, her motion must be accompanied by a statement
of the evidence which she intends to present if the motion is granted and which is such as to
warrant a reasonable belief that the result of the case would probably be otherwise if a new trial
is granted.40

In the present case, petitioner contented herself with stating in her affidavit of merit that the
cases against respondent Raymond were filed at the instance of her father.41 Such allegation is a
conclusion rather than a statement of facts showing a meritorious defense. The affidavit failed to
controvert the facts alleged by the respondents. Petitioner has not shown

that she has a meritorious defense.

Thus, since petitioner failed to show that her failure file an answer was not due to fraud,
accident, mistake, or excusable neglect; and that she had a valid and meritorious defense, there is
no merit to her prayer for a liberal interpretation of procedural rules.

WHEREFORE, the instant petition is DENIED. The assailed Decision and Resolution of the
Court of Appeals are AFFIRMED.

Costs against petitioner.

SO ORDERED