CIVIL PROCEDURE - Session 3
[G.R. No. 144074. March 20, 2001]
MEDINA INVESTIGATION & SECURITY CORPORATION and
ERNESTO Z. MEDINA, petitioners, vs. COURT OF APPEALS,
NATIONAL LABOR RELATIONS COMMISSION and ROMEO
TABURNAL, respondents.
RESOLUTION
GONZAGA-REYES, J.:
Before this Court is a Petition for Review seeking to set aside the
Resolution dated June 2, 2000 dismissing the petition for being filed
beyond the 60-day reglementary period and the Resolution dated July
12, 2000 denying the motion for reconsideration, both issued by the
Court of Appeals in CA-G.R. SP No. 58968.
Respondent Romeo Taburnal was hired by petitioner corporation as
security guard on September 8, 1996 and was assigned to one of its
clients, Abenson, Inc. at Sta. Lucia Grand Mall.On September 5, 1997,
the client requested that respondent Taburnal be relieved due to
violations pursuant to the Service Contract such as reporting late for
duty, below standard performance of duties, and exceeding the
maximum six (6) months duty in the company. In view of his
replacement, respondent Taburnal filed a complaint for Illegal
Dismissal claiming for separation pay, non-payment of legal/special
holiday and overtime pay, underpayment of 13th month pay and cash
bond and tax refund. On April 29, 1999, the Labor Arbiter rendered
judgment ordering the reinstatement of respondent Taburnal without
loss of seniority rights and the payment of full backwages and salary
differentials. Petitioners appealed to the NLRC which dismissed the
same for lack of jurisdiction. The Motion for Reconsideration thereto
was denied. Herein petitioners filed a petition for certiorari with the
Court of Appeals which dismissed the petition outright for having been
filed beyond the 60-day reglementary period or on the 67th day per
its Resolution on June 2, 2000. The Court of Appeals ruled that the
petition was filed on the sixty-seventh (67th) day since petitioners
received on November 10, 1999 the Order dated August 26, 1999 of
the NLRC and the Motion for Reconsideration thereto was filed of
November 19, 1999. Copy of the order denying the said motion was
received by petitioners on April 3, 2000, while the petition was filed
with the Court of Appeals on May 31, 2000. The Court of Appeals did
AL Ilagan-Malipol, AB, MD
not discuss the merits of the petition. Hence, the petition raising the
following grounds:
THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE PETITION
FOR CERTIORARI WAS FILED BEYOND THE REGLEMENTARY PERIOD.
PUBLIC APPELLEES COMMITTED A REVERSIBLE ERROR WHEN THEY
DISMISSED THE PETITION, THEREBY AFFIRMING THE DECISION OF
LABOR ARBITER FELIPE P. PATI WHICH AWARDED MONETARY CLAIMS
AND OTHER RELIEF NOT PRAYED FOR IN THE COMPLAINT, IN GRAVE
ABUSE OF THEIR DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION.
PUBLIC APPELLEES GROSSLY ERRED AND GRAVELY ABUSED THEIR
DISCRETION, WHEN THEY HELD APPELLANT ERNESTO Z. MEDINA
JOINTLY AND SEVERALLY LIABLE WITH APPELLANT MISCOR, INSPITE
OF THE FACT THAT THERE IS NO EVIDENCE TO THAT EFFECT.
Petitioners main contention is that their petition for certiorari filed with
the Court of Appeals was within the 60-day reglementary period
pursuant to Rule 65. They insist that when the assailed Order was
received on April 3, 2000, the petition filed on May 31, 2000 was the
58th day, citing Section 1, Rule 22 of the 1997 Rules on Civil
Procedure and Article 13 of the Civil Code.
In his Comment, private respondent Romeo Taburnal alleges that he is
aware that Section 4, Rule 65 of the 1997 Rules on Civil Procedure
was later amended, which amendment took effect on September 1,
2000. He insists however that the petition filed with the Court of
Appeals was not yet covered by said amendment. Private respondent
further avers that Article 223 of the Labor Code and the NLRC Rules of
Procedure provide that appeal is the proper remedy for a party
aggrieved by a decision of the Labor Arbiter and the filing of a petition
for certiorari with the NLRC by petitioners is definitely a wrong
remedy.
A.M. No. 00-2-03-SC amending Section 4, Rule 65 of the 1997 Rules
of Civil Procedure (as amended by the Resolution of July 21, 1998)
took effect on September 1, 2000 and provides, to wit:
SEC. 4. When and where petition filed. --- The petition shall be filed
1
CIVIL PROCEDURE - Session 3
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.
The above conclusion is consonant with the provision in Section 6,
Rule 1 of the 1997 Rules of Civil Procedure that (T)hese Rules shall be
liberally construed in order to promote their objective of securing a
just, speedy and inexpensive disposition of every action and
proceeding.
The other issues raised by petitioners should be addressed and
resolved by the court below.
WHEREFORE, the Resolutions dated June 2, 2000 and July 12, 2000
are hereby SET ASIDE and the case is REMANDED to the Court of
Appeals for further proceedings.
SO ORDERED.

No extension of time to file the petition shall be granted except for

compelling reason and in no case exceeding fifteen (15) days.

Contrary to the position of respondents that such amendment should

not apply in this case, we have ruled in the cases of Systems Factors
Corporation and Modesto Dean vs. NLRC, et al., G.R. No. 143789
(promulgated on November 27, 2000) and Unity Fishing Development
Corp. and/or Antonio Dee vs. CA, et al., G.R. No. 145415
(promulgated on February 2, 2001) that the amendment under A.M.
No. 00-2-03-SC wherein the sixty-day period to file a petition
for certiorari is reckoned from receipt of the resolution denying the
motion for reconsideration should be deemed applicable. We reiterate
that remedial statutes or statutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but
only operate in furtherance of the remedy or confirmation of rights
already existing, do not come within the legal conception of a
retroactive law, or the general rule against retroactive operation of
statutes.[1] Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and undetermined at the
time of their passage. Procedural laws are retroactive in that sense
and to that extent. The retroactive application of procedural laws is
not violative of any right of a person who may feel that he is adversely
affected.[2] The reason is that as a general rule, no vested right may
attach to nor arise from procedural laws.[3]

AL Ilagan-Malipol, AB, MD 2
CIVIL PROCEDURE - Session 3
[G.R. No. 149692. July 30, 2002]
HEIRS OF SPOUSES JULIAN DELA CRUZ AND MAGDALENA
TUAZON, represented by their Attorney-in-Fact and co-heir,
VIRGILIO C. ALVENDIA, petitioners, vs. HEIRS OF FLORENTINO
QUINTOS, SR., namely, FLORENTINO QUINTOS, JR. and
GLORIA QUINTOS BUGAYONG, respondents.
Before Us is a petition for review on certiorari under Rule 45 filed
by petitioners seeking to reverse and set aside the Resolution dated
May 29, 2001 of the Court of Appeals[1] which dismissed their petition
for review of the decision of the Regional Trial Court of Lingayen,
Pangasinan (Branch 38) on the ground that the petition was filed out
of time; and, the Resolution dated August 29, 2001[2] denying
their motion for reconsideration.
Sometime in 1996, petitioners filed with the Municipal Trial Court
of Lingayen, Pangasinan an action for reconveyance with
damages[3] against respondents alleging,among others, that they are
the children of the late Ariston dela Cruz, who was the only forced and
legal heir of his deceased parents, Julian dela Cruz and Magdalena
Tuazon who died intestate; that sometime in 1897, Magdalena Tuazon
purchased from Herminigildo and Filomena Tiong a certain parcel of
land located at Heroes Street, Lingayen, Pangasinan consisting of 605
square meters and since then respondents and their predecessors had
been in continuous occupation and adverse possession of the
subject land; that sometime in 1987, private respondents predecessor
Florentino Quintos, Sr., filed an application for the judicial registration
of a certain land which included petitioners land; that the land
registration court granted Quintos application and decreed the land in
Florentino Quintos name and OCT No. 22665 was subsequently
issued; that OCT No. 22665 was partitioned into four separate lots and
petitioners land was covered by TCT No. 173052; that respondents
subsequently filed a complaint (docketed as Civil Case No. 4118) for
illegal detainer against petitioners for the latters refusal to vacate the
subject land which resulted in petitioners ejectment from the subject
property.
Respondents filed their answer with counterclaim, alleging that the
subject land had always belonged to respondents late father Florentino
Quintos, Sr., who in turn inherited the same from his mother, Dolores
Tuazon; that the affidavit evidencing petitioners ownership of the
AL Ilagan-Malipol, AB, MD
subject land was not attached to the complaint; that respondents
predecessors merely tolerated petitioners possession of the subject
land; that petitioners never filed their opposition to respondents
application for registration despite knowledge thereof; that the land
registration case which was the basis for the issuance of OCT No.
22665 in the name of the predecessor of respondents was a
proceeding in rem which bound all persons whether notified or not.
On January 29, 1999, a decision[4] was rendered by the MTC
declaring petitioners as the legal owners of the land covered by TCT
No. 173052 and ordering respondents to convey to petitioners the
subject land and to pay damages to petitioners. [5]
Respondents filed their appeal before the Regional Trial Court,
Lingayen, Pangasinan (Branch 38). On January 19, 2000, the
RTC[6] reversed the decision of the MTC dismissing the complaint,
declaring respondents as the absolute owners of the subject land and
ordering petitioners to pay damages to respondents.
Petitioners filed their motion for reconsideration which the trial
court denied in a Resolution dated March 8, 2000.[7]
On April 18, 2000, petitioners, through counsel, filed with the
Court of Appeals (CA) a motion for extension of time to file a petition
for review which she subsequently filed on May 2, 2000. Respondents
filed a motion to dismiss the petition for review for being filed out of
time since the certification issued by Postmaster Elizabeth I. Torio of
Dagupan City Post Office and the affidavit of Ricardo C. Castro, Clerk
III of the Regional Trial Court show that the trial courts Resolution
dated March 8, 2000 denying petitioners motion for reconsideration
was received by the secretary of petitioners counsel on March 16,
2000, thus the filing of the petition was filed 28 days late.
Petitioners counsel filed her Comment to respondents motion to
dismiss alleging that when she arrived in her office on April 3, 2000,
she found copies of pleadings and correspondence including a copy of
the trial courts Resolution dated March 8, 2000 denying her motion for
reconsideration; that she thought that these pleadings and
correspondence were all received on April 3, 2000; that upon receipt
of respondents motion to dismiss, she confronted her secretary who
told her that the envelope containing the Resolution was only opened
3
CIVIL PROCEDURE - Session 3
on April 3, 2000 and her secretary could not recall if the
Resolution was among those she received on March 16, 2000.
On May 29, 2001, the CA issued the assailed Resolution dismissing
petitioners petition for review for being filed out of time. It found the
explanation given by petitioners counsel unconvincing since she failed
to give the reason why the envelope was opened only on April 3,
2000; that counsels secretary did not even admit that she actually
received the said Resolution; that it is the counsels duty to adopt and
strictly maintain a system that efficiently takes into account all court
notices sent to her and she failed to instruct and remind her secretary
on what should be done with respect to such notices and processes.
Petitioners motion for reconsideration was denied in a Resolution
dated August 29, 2001.
Hence, the present petition on the following grounds:
1) The appellate court rejected and refused to consider the
valid reason submitted by the petitioners counsel for the
apparent delay in the filing of the petition for review with
said court; hence the dismissal of the petition was tainted
with grave abuse of discretion;
2) Granting, arguendo, that there is a basis for the dismissal
of the petition, the appellate court should have applied the
principle of liberal construction of the Rules pursuant to
Rule 1, Section 6 of the 1997 Rules of Civil Procedure (1997
RCP), considering the valid and meritorious case of
petitioners.
3) In either case, it is respectfully submitted that the appellate
court has departed from the accepted and usual course of
judicial proceedings in dismissing outright the petition for
review as to call for the supervision of this Honorable Court
in the exercise of its equity jurisdiction.[8]
We deny the petition.
Section 1, Rule 42 of the 1997 Rules on Civil Procedure, provides
that the petition shall be filed and served within 15 days from notice of
the decision sought to be reviewed or of the denial of petitioners
motion for new trial or reconsideration filed in due time after
judgment.[9] In the instant case, it has been established that the
AL Ilagan-Malipol, AB, MD
resolution denying petitioners motion for reconsideration of the trial
courts decision was received by the secretary of petitioners former
counsel on March 16, 2000, thus the last day of the 15-day period
within which to file the petition for review with the respondent court
was March 31, 2000. Considering that counsel filed a motion for
extension of time to file a petition for review with the respondent court
only on April 18, 2000, the judgment of the RTC subject of the petition
for review had already become final and executory. Consequently, the
CA did not err in dismissing the petition for being filed out of time
since it has no more jurisdiction to entertain the petition much less to
alter a judgment.
This Court has invariably ruled that perfection of an appeal in the
manner and within the period laid down by law is not only mandatory
but also jurisdictional.[10] The failure to perfect an appeal as required
by the rules has the effect of defeating the right to appeal of a party
and precluding the appellate court from acquiring jurisdiction over the
case.[11] The right to appeal is not a natural right nor a part of due
process; it is merely a statutory privilege, and may be exercised only
in the manner and in accordance with the provisions of the
law.[12] The party who seeks to avail of the same must comply with
the requirement of the rules. Failing to do so, the right to appeal is
lost. [13]
We agree with the CA when it found that the reason advanced by
petitioners former counsel, which is that she received the resolution
denying her motion for reconsideration only on April 3, 2000 as she
found it on her table on the same date, unacceptable. The negligence
of her secretary in failing to immediately give the trial courts
resolution denying petitioners motion for reconsideration upon receipt
to the counsel and the negligence of counsel to adopt and arrange
matters in order to ensure that official or judicial communications sent
by mail would reach her promptly cannot be considered
excusable. The Court has also often repeated that the negligence of
the clerks which adversely affect the cases handled by lawyers, is
binding upon the latter.[14] The doctrinal rule is that the negligence of
counsel binds the client because otherwise, there would never be an
end to a suit so long as new counsel could be employed who could
allege and show that prior counsel had not be sufficiently diligent, or
experienced, or learned.[15]
4
CIVIL PROCEDURE - Session 3
Petitioners claim that there should be a liberal construction of the
rules of procedure in order to effect substantial justice and appeal to
this Courts exercise of equity jurisdiction. We are not
persuaded. There is no showing in this case of any extraordinary
circumstance which may justify a deviation from the rule on timely
filing of appeals. As held in the case of Tupas vs. CA:[16]
Rules of procedure are intended to ensure the orderly administration
of justice and the protection of substantive rights in judicial and
extrajudicial proceedings. It is a mistake to suppose that substantive
law and adjective law are contradictory to each other or, has often
been suggested, that enforcement of procedural rules should never be
permitted if it will result in prejudice to the substantive rights of the
litigants. This is not exactly true; the concept is much misunderstood.
As a matter of fact, the policy of the courts is to give effect to both
kinds of law, as complementing each other, in the just and speedy
resolution of the dispute between the parties. Observance of both
substantive and procedural rights is equally guaranteed by due
process, whatever the source of such rights, be it the Constitution
itself or only a statute or a rule of court. (Limpot vs. CA, 170 SCRA
369)
xxx xxx xxx
For all its conceded merits, equity is available only in the absence of
law and not as its replacement. Equity is described as justice outside
legality, which simply means that it cannot supplant although it may,
as often happens, supplement the law. We said in an earlier case, and
we repeat it now, that all abstract arguments based only on equity
should yield to positive rules, which pre-empt and prevail over such
persuasions. Emotional appeals for justice, while they may wring the
heart of the Court, cannot justify disregard of the mandate of the law
as long as it remains in force. The applicable maxim, which goes back
to the ancient days of the Roman jurists- and is now still reverently
observed- is `aequetas nunquam contravenit legis. (Aguila vs. CA,
160 SCRA 359)
At any rate, we find no reversible error committed by the RTC in
dismissing petitioners complaint for reconveyance against
respondents. Petitioners claim of ownership was based on the affidavit
AL Ilagan-Malipol, AB, MD
of Herminigildo and Filomena Tiong executed on November 9, 1926
which stated among others that they were the former owners in
common of the subject parcel of land which they sold to Magdalena
Tuazon (petitioners predecessor in interest) on or about the year
1897. However, such affidavit was not accompanied by any instrument
showing the sale between the Tiong spouses and Magdalena
Tuazon. By itself, an affidavit is not a mode of acquiring
ownership,[17] thus it cannot serve as the basis of ownership of the
petitioners. Moreover, the RTC found that there was no tax declaration
or title in the name of the Tiong spouses to evidence their ownership
of the subject land. On the other hand, respondents ownership of the
subject land was by virtue of a land registration case where the land
registration court found sufficient the well documented evidence
submitted by applicant Florentino Quintos, Sr. ( respondents
predecessor in interest ) to prove their ownership of 2,048 sq. meters
lot which included the subject land.
In civil cases, the burden of proof is on the plaintiff to establish his
case by a preponderance of evidence. If he claims a right granted or
created by law, he must prove his claim by competent evidence. He
must rely on the strength of his own evidence and not on the
weakness of that of his opponent.[18] The RTC had correctly ruled that
petitioners failed to show sufficient proof of ownership over the
subject land covered by TCT No. 173052 so as to entitle them the
return of the same.
WHEREFORE, the petition is DENIED. The Court of Appeals
Resolution dated May 29, 2001 and Resolution dated August 29, 2001
are AFFIRMED. Costs against petitioners.
SO ORDERED.
5
CIVIL PROCEDURE - Session 3
[G.R. No. 155736. March 31, 2005]
SPOUSES DANILO and CRISTINA DECENA, petitioners,
vs. SPOUSES PEDRO and VALERIA PIQUERO, respondents.
The petitioners, Spouses Danilo and Cristina Decena were the
owners of a parcel of land, with a house constructed thereon, located
in Paraaque, Metro Manila (now Paraaque City) covered by Transfer
Certificate of Title (TCT) No. 134391 issued on February 24, 1998.[1]
On September 7, 1997, the petitioners and the respondents, the
Spouses Pedro and Valeria Piquero, executed a Memorandum of
Agreement (MOA)[2] in which the former sold the property to the latter
for the price of P940,250.00 payable in six (6)
installments via postdated checks. The vendees forthwith took
possession of the property.
It appears in the MOA that the petitioners obliged themselves to
transfer the property to the respondents upon the execution of the
MOA with the condition that if two of the postdated checks would be
dishonored by the drawee bank, the latter would be obliged to
reconvey the property to the petitioners.
On May 17, 1999, the petitioners, then residents of Malolos,
Bulacan, filed a Complaint[3] against the respondents with the
Regional Trial Court (RTC) of Malolos, Bulacan, for the annulment of
the sale/MOA, recovery of possession and damages. The petitioners
alleged therein that, they did not transfer the property to and in the
names of the respondents as vendees because the first two checks
drawn and issued by them in payment for the purchase price of the
property were dishonored by the drawee bank, and were not replaced
with cash despite demands therefor.
The petitioners prayed that, after due proceedings, judgment be
rendered in their favor, thus:
a. The sale/Memorandum of Agreement (Annex A, supra) be declared
null and void, rescinded and with no further force and effect;
b. Defendants, and all persons claiming right under them, be ordered
to immediately vacate the subject property and turnover its
possession to the plaintiffs;
AL Ilagan-Malipol, AB, MD
c. Defendants, jointly and severally, be ordered to pay the plaintiffs:
i. P10,000.00 monthly, starting 01 October 1997 until complete
turnover of the subject property to the plaintiffs, as reasonable
compensation for its continued unlawful use and occupation by the
defendants;
ii. P200,000.00 moral damages;
iii. P200,000.00 exemplary damages;
iv. P250,000.00 attorneys fees and litigation related expenses; and
v. the costs of suit.
Other reliefs just and equitable are, likewise, prayed for.[4]
The petitioners declared in their complaint that the property
subject of the complaint was valued at P6,900,000.00. They appended
copies of the MOA and TCT No. 134391 to their complaint. The case
was eventually raffled to Branch 13 of the RTC of Malolos, Bulacan.
The respondents filed a motion to dismiss the complaint on the
ground, inter alia, of improper venue and lack of jurisdiction over the
property subject matter of the action.
On the first ground, the respondents averred that the principal
action of the petitioners for the rescission of the MOA, and the
recovery of the possession of the property is a real action and not a
personal one; hence, it should have been brought in the RTC of
Paraaque City, where the property subject matter of the action was
located, and not in the RTC of Malolos, Bulacan, where the petitioners
resided. The respondents posited that the said court had no
jurisdiction over the property subject matter of the action because it
was located in Paraaque City.[5]
In opposition, the petitioners insisted that their action for
damages and attorneys fees is a personal action and not a real action;
hence, it may be filed in the RTC of Bulacan where they reside. They
averred that while their second cause of action for the recovery of the
possession of the property is a real action, the same may,
6
CIVIL PROCEDURE - Session 3
nevertheless, be joined with the rest of their causes of action for
damages, conformably with Section 5(c), Rule 2 of the Rules of
Court.[6]
By way of reply, the respondents averred that Section 5(c), Rule 2
of the Rules of Court applies only when one or more of multiple causes
of action falls within the exclusive jurisdiction of the first level courts,
and the other or others are within the exclusive jurisdiction of the
RTC, and the venue lies therein.
On February 9, 2000, the trial court issued an Order[7] denying
the motion for lack of merit. It found merit in the petitioners
contention that Section 5(c), Rule 2 was applicable.
Meanwhile, the case was re-raffled to Branch 10 of the RTC of
Malolos, Bulacan. In a Motion[8] dated December 20, 2000, the
respondents prayed for the reconsideration of the trial courts February
9, 2000 Order. On October 16, 2001, the court issued an
Order[9] granting the motion and ordered the dismissal of the
complaint. It ruled that the principal action of the petitioners was a
real action and should have been filed in the RTC of Paraaque City
where the property subject matter of the complaint was located.
However, since the case was filed in the RTC of Bulacan where the
petitioners reside, which court had no jurisdiction over the subject
matter of the action, it must be dismissed.
Hence, the present recourse.
The petition has no merit.
The sole issue is whether or not venue was properly laid by the
petitioners in the RTC of Malolos, Bulacan. The resolution of this issue
is, in turn, anchored on whether Section 5, Rule 2 of the Rules of
Court invoked by the petitioners is applicable in this case.
Under the said Rule, a party may, in one pleading, assert, in the
alternative or otherwise, as many causes of action as he may have
against an opposing party subject to the conditions therein
enumerated, one of which is Section 5(c) which reads:
Sec. 5. Joinder of causes of action. --
(c) Where the causes of action are between the same parties but
pertain to different venues or jurisdiction, the joinder may be allowed
AL Ilagan-Malipol, AB, MD
in the Regional Trial Court provided one of the causes of action falls
within the jurisdiction of said court and the venue lies therein;
Explaining the aforequoted condition, Justice Jose Y. Feria
declared:
(c) Under the third condition, if one cause of action falls within the
jurisdiction of the Regional Trial Court and the other falls within the
jurisdiction of a Municipal Trial Court, the action should be filed in the
Regional Trial Court. If the causes of action have different venues,
they may be joined in any of the courts of proper venue. Hence, a real
action and a personal action may be joined either in the Regional Trial
Court of the place where the real property is located or where the
parties reside.[10]
A cause of action is an act or omission of one party in violation of
the legal right of the other which causes the latter injury. The essential
elements of a cause of action are the following: (1) the existence of a
legal right of the plaintiff; (2) a correlative legal duty of the defendant
to respect ones right; and (3) an act or omission of the defendant in
violation of the plaintiffs right.[11] A cause of action should not be
confused with the remedies or reliefs prayed for. A cause of action is
to be found in the facts alleged in the complaint and not in the prayer
for relief. It is the substance and not the form that is controlling. [12] A
party may have two or more causes of action against another party.
A joinder of causes of action is the uniting of two or more
demands or right of action in a complaint. The question of the joinder
of causes of action involves in particular cases a preliminary inquiry as
to whether two or more causes of action are alleged.[13] In declaring
whether more than one cause of action is alleged, the main thrust is
whether more than one primary right or subject of controversy is
present. Other tests are whether recovery on one ground would bar
recovery on the other, whether the same evidence would support the
other different counts and whether separate actions could be
maintained for separate relief;[14] or whether more than one distinct
primary right or subject of controversy is alleged for enforcement or
adjudication.[15]
A cause of action may be single although the plaintiff seeks a
variety of remedies. The mere fact that the plaintiff prays for multiple
7
CIVIL PROCEDURE - Session 3
reliefs does not indicate that he has stated more than one cause of trial court acted conformably with Section 1(c), Rule 16 of the Rules of
action. The prayer may be an aid in interpreting the petition and in Court when it ordered the dismissal of the complaint.
determining whether or not more than one cause of action is
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for
pleaded.[16]If the allegations of the complaint show one primary right
lack of merit. Costs against the petitioners.
and one wrong, only one cause of action is alleged even though other
matters are incidentally involved, and although different acts, SO ORDERED.
methods, elements of injury, items of claims or theories of recovery
are set forth.[17] Where two or more primary rights and wrongs
appear, there is a joinder of causes of action.
After due consideration of the foregoing, we find and so rule that
Section 5(c), Rule 2 of the Rules of Court does not apply. This is so
because the petitioners, as plaintiffs in the court a quo, had only one
cause of action against the respondents, namely, the breach of the
MOA upon the latters refusal to pay the first two installments in
payment of the property as agreed upon, and turn over to the
petitioners the possession of the real property, as well as the house
constructed thereon occupied by the respondents. The claim for
damages for reasonable compensation for the respondents use and
occupation of the property, in the interim, as well as moral and
exemplary damages suffered by the petitioners on account of the
aforestated breach of contract of the respondents are merely
incidental to the main cause of action, and are not independent or
separate causes of action.[18]
The action of the petitioners for the rescission of the MOA on
account of the respondents breach thereof and the latters failure to
return the premises subject of the complaint to the petitioners, and
the respondents eviction therefrom is a real action.[19] As such, the
action should have been filed in the proper court where the property is
located, namely, in Paraaque City, conformably with Section 1, Rule 4
of the Rules of Court which reads:

SECTION 1. Venue of real actions. Actions affecting title to or

possession of real property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is situated.

Since the petitioners, who were residents of Malolos, Bulacan, filed

their complaint in the said RTC, venue was improperly laid; hence, the

AL Ilagan-Malipol, AB, MD 8
CIVIL PROCEDURE - Session 3
SPS. VICTOR & MILAGROS G.R. No. 147417 March 2000, petitioners moved for reconsideration which was denied
PEREZ and CRISTINA by the trial court on 25 May 2000 and received by petitioners on 18
AGRAVIADOR AVISO, Present: June 2000. On 17 August 2000, petitioners filed an original action
P e t i t i o n e r s, for certiorari before the Court of Appealsimputing grave abuse of
PUNO, discretion on the part of the trial court in dismissing the complaint
Chairman, against respondent Hermano.
AUSTRIA-MARTINEZ,
CALLEJO, SR., On 19 October 2000, the Court of Appeals rendered the first assailed
- versus - TINGA and Resolution dismissing the petition for certiorari for having been filed
CHICO-NAZARIO, JJ. beyond the reglementary period pursuant to Section 4, Rule 65 of the
1997 Rules on Civil Procedure, as amended. On 02 March 2001, the
Promulgated: second assailed Resolution was promulgated dismissing petitioners
motion for reconsideration, the Court of Appeals holding that:
ANTONIO HERMANO, July 8, 2005
R e s p o n d e n t. From the time petitioners received the assailed Order on March 21,
x------------------------------------------- 2000 and filed their motion for reconsideration, four (4) days had
x elapsed. On June 18, 2000, petitioners received the denial of their
\\ motion for reconsideration. When the instant petition was filed on
This is a petition for review on certiorari under Rule 45 of the Rules of August 17, 2000, a total of 63 days had elapsed.
Court assailing the Resolution[1] of the Court of Appeals dismissing
petitioners original action for certiorari under Rule 65 for being filed A.M. No. 00-2-03-50 further amending Section 4, Rule 65 of the New
out of time. Assailed as well is the Resolution[2] dismissing petitioners Rules on Civil Procedure states that the petition shall be filed not later
motion for reconsideration. than sixty (60) days from notice of the judgment, Order or Resolution
and in case a motion for reconsideration or new trial is timely filed,
The pertinent facts of the case are as follows: whether such motion is required or not, the 60-day period shall be
counted from notice of the denial of said motion.
On 27 April 1998, petitioners Cristina Agraviador Aviso and spouses
Victor and Milagros Perez filed a civil case for Enforcement of Contract Viewed from its light, the assailed Orders had already attained finality,
and Damages with Prayer for the Issuance of a Temporary Restraining and are now beyond the power of this Court to review.[4]
Order (TRO) and/or Preliminary Injunction against Zescon Land, Inc.
and/or its President Zenie Sales-Contreras, Atty. Perlita Vitan-Ele and
against respondent herein Antonio Hermano before the Regional Trial
Court (RTC) of Quezon City, Branch 224.[3] On 15 May 1998, Aggrieved by the foregoing ruling, petitioners are now before us
respondent (then defendant) Hermano filed his Answer with assigning the following
Compulsory Counterclaim. On 17 January 2000, respondent Hermano
filed a Motion with Leave to Dismiss the Complaint or Ordered Severed MANIFEST AND/OR SERIOUS ERROR COMMITTED BY THE HONORABLE
for Separate Trial which was granted by the trial court in an Order COURT OF APPEALS IN THE COMPUTATION OF THE PERIOD WITHIN
dated 28 February 2000. WHICH THE PETITIONERS FILED THEIR PETITION FOR CERTIORARI
BEFORE IT AND CONSEQUENTLY COMMITTED GRAVE ABUSE OF
This Order was received by petitioners on 21 March 2000. On 23 DISCRETION IN THE APPRECIATION OF FACTS AND/OR
AL Ilagan-Malipol, AB, MD 9
CIVIL PROCEDURE - Session 3
MISAPPREHENSION OF FACTS, WITH ITS FINDING OF FACT NOT
BEING BORNE BY THE RECORD OR EVIDENCE, AND THUS ITS
CONCLUSION IS ENTIRELY BASELESS.[5]
According to petitioners, following the amendment introduced by A.M.
No. 00-2-03-SC to Section 4, Rule 65 of the 1997 Rules on Civil
Procedure, their petition was filed on the 60th day, thus, within the
reglementary period. Respondent insists, on the other hand, that the
petition was filed on the 61st day while the Court of Appeals had
declared that the petition was filed on the 63rd day.
We agree in the position taken by petitioners.
Admittedly, at the time petitioners filed their petition for certiorari on
17 August 2000, the rule then prevailing was Section 4, Rule 65 of the
1997 Rules on Civil Procedure, as amended by Circular No. 39-98
effective 01 September 1998, which provides:
Sec. 4. Where petition filed. The petition shall be filed not later than
sixty (60) days from notice of the judgment, order or resolution
sought to be assailed 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
jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, and unless otherwise provided by law or these Rules, the
petition shall be filed in and cognizable only by the Court of Appeals.
If the petitioner had filed a motion for new trial or reconsideration in
due time after notice of said judgment, order, or resolution, the period
herein fixed shall be interrupted. If the motion is denied, the
aggrieved party may file the petition within the remaining period, but
which shall not be less than five (5) days in any event, reckoned from
notice of such denial. No extension of time to file the petition shall be
granted except for the most compelling reason and in no case to
exceed fifteen (15) days. (Emphasis supplied)
AL Ilagan-Malipol, AB, MD
However, on 01 September 2000, during the pendency of the case
before the Court of Appeals, Section 4 was amended anew by A.M. No.
00-2-03-SC[6] which now provides:
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 supplied)
Under this amendment, the 60-day period within which to file the
petition starts to run from receipt of notice of the denial of the motion
for reconsideration, if one is filed.[7]
In Narzoles v. National Labor Relations Commission,[8] we described
this latest amendment as curative in nature as it remedied the
confusion brought about by Circular No. 39-98 because,
historically, i.e., even before the 1997 revision to the Rules of Civil
Procedure, a party had a fresh period from receipt of the order
denying the motion for reconsideration to file a petition for certiorari.
Curative statutes, which are enacted to cure defects in a prior law or
to validate legal proceedings which would otherwise be void for want
of conformity with certain legal requirements, by their very essence,
10
CIVIL PROCEDURE - Session 3
are retroactive.[9] And, being a procedural rule, we held in Sps. Ma.
Carmen and Victor Javellana v. Hon. Presiding Judge Benito
Legarda[10] that procedural laws are construed to be applicable to
actions pending and undetermined at the time of their passage, and
are deemed retroactive in that sense and to that extent.
Consequently, petitioners had a fresh period of 60 days from the time
they received the Order of the trial court denying their motion for
reconsideration on 18 June 2000. When they filed their petition with
the Court of Appeals on 17 August 2000, exactly 60 days had elapsed
following the rule that in computing a period, the first day shall be
excluded and the last day included.[11] Hence, there can be no doubt
that the petition was filed within the reglementary period for doing so
and it was reversible error on the part of the Court of Appeals in not
giving said petition due course. However, instead of remanding the
case to the Court of Appeals which would only unduly prolong the
disposition of the substantive issue raised, we shall resolve the
petition originally filed therein.
Petitioners brought to the Court of Appeals on petition
for certiorari under Rule 65 the lone issue of:
WHETHER OR NOT THE PUBLIC RESPONDENT [Hon. Emilio L. Leachon,
Jr., Presiding Judge, RTC, Branch 224, Quezon City] HAD PLAINLY AND
MANIFESTLY ACTED WITH GRAVE ABUSE OF DISCRETION, IN EXCESS
OF JURISDICTION, TANTAMOUNT TO LACK OF JURISDICTION, IN
DISMISSING THE COMPLAINT AS AGAINST RESPONDENT ANTONIO
HERMANO IN CIVIL CASE NO. Q-98-34211.[12]
Petitioners assert that respondent Hermano should not have been
dismissed from the complaint because: (1) He did not file a motion to
dismiss under Rule 16 of the Rules of Court and, in fact, his Motion
with Leave to Dismiss the Complaint or Ordered Severed for Separate
Trial was filed almost two years after he filed his Answer to the
complaint; (2) There was no misjoinder of causes of action in this
case; and (3) There was no misjoinder of parties.
The case filed by petitioners against respondent Hermano and the
AL Ilagan-Malipol, AB, MD
other defendants, namely Zescon Land, Inc. and/or its President Zenie
Sales-Contreras and Atty. Perlita Vitan-Ele, was one for Enforcement
of Contract and Damages with Prayer for the Issuance of a Temporary
Restraining Order (TRO) and/or Preliminary Injunction docketed as
Civil Case No. Q-98-34211 and raffled to Branch 224.
Petitioners presented three causes of action in their complaint, the
first for enforcement of contract to sell entered into between
petitioners and Zescon Land, Inc., the second for annulment or
rescission of two contracts of mortgage entered into between
petitioners and respondent Hermano and the third for damages
against all defendants.
For the first cause of action, petitioners allege that sometime in
November 1997, they entered into a Contract to Sell with Zescon
Land, Inc., through Zenie Sales-Contreras, for the purchase of five (5)
parcels of land in the total amount of Nineteen Million One Hundred
Four Thousand Pesos (P19,104,000.00). As part of their agreement, a
portion of the purchase price would be paid to them as down payment,
another portion to be given to them as cash advance upon the
execution of the contract and another portion to be used by the buyer,
Zescon Land, Inc., to pay for loans earlier contracted by petitioners
which loans were secured by mortgages.
Re-pleading the foregoing in their second cause of action, petitioners
contend that in a tricky machination and simultaneous with the
execution of the aforesaid Contract to Sell, they were made to sign
other documents, two of which were Mortgage deeds over the same
five properties in favor of respondent Hermano, whom they had never
met. It was allegedly explained to them by Sales-Contreras that the
mortgage contracts would merely serve to facilitate the payment of
the price as agreed upon in their Contract to Sell. Petitioners claim
that it was never their intention to mortgage their property to
respondent Hermano and that they have never received a single
centavo from mortgaging their property to him. Petitioners
acknowledge, however, that respondent Hermano was responsible for
discharging their obligations under the first mortgage and for having
the titles over the subject lands released, albeit not to them but to
respondent Hermano. They seek a TRO against respondent Hermano
who had informed them that he would be foreclosing the subject
11
CIVIL PROCEDURE - Session 3
properties.
In their third cause of action, petitioners pray for damages against all
the defendants alleging that:
Due to the failure and refusal, without any valid justification and
reason, by defendants Zescon and Contreras to comply with their
obligations under the Contract to Sell, including their failure and
refusal to pay the sums stipulated therein, and in misleading and
misrepresenting the plaintiffs into mortgaging their properties to
defendant Antonio Hermano, who in turn had not paid the plaintiffs
the proceeds thereof, putting them in imminent danger of losing the
same, plaintiffs had suffered, and continue to suffer, sleepless nights .
By reason of defendants Zescon and Contrerass failure and refusal to
pay the sums stipulated in the Contract to Sell, and of defendant
Antonio Hermanos not having paid plaintiffs the proceeds of the
mortgage agreements, plaintiffs had been deprived of the beneficial
use of the proceeds and stood to lose, as they continue to lose, by
way of unearned profits at least P1,000,000.00.[13]
In his Answer with (Compulsory) Counterclaim dated 15 May 1998,
respondent Hermano denied petitioners allegations.[14] Then, on 19
February 1999, respondent Hermano filed a civil case entitled Judicial
Foreclosure of Real Estate Mortgage against petitioner Aviso docketed
as Civil Case No. Q-99-36914 and raffled to Branch 216 of the RTC of
Quezon City. On 17 January 2000, respondent Hermano filed a Motion
With Leave To Dismiss The Complaint Against Defendant Antonio
Hermano, Or Ordered Severed For Separate Trial before Branch 224.
In said motion, respondent Hermano argued that there was a mis-
joinder of causes of action under Rule 2, Section 6 of the Rules of
Court. To quote respondent Hermano:
3. In the instant case, the plaintiffs action for the Enforcement of
Contract and Damages with Prayer for The Issuance of a Temporary
Restraining Order And/Or Preliminary Injunction against Zescon Land,
Inc., and/or its President Zenie Sales Contreras, may not, under Rule
2, Section 6 of the 1997 Rules of Civil Procedure, join defendant
AL Ilagan-Malipol, AB, MD
Hermano as party defendant to annul and/or rescind the Real Estate
Mortgages of subject properties. There is a misjoinder of parties
defendants under a different transaction or cause of action; that under
the said Rule 2, Section 6, upon motion of defendant Hermano in the
instant case, the complaint against defendant Hermano can be
severed and tried separately; . . . .[15]
Over petitioners opposition to said motion, the same was granted by
the trial court in its Order dated 28 February 2000 on the justification
that:
. . . [D]efendant having filed a special civil action for judicial
foreclosure of mortgage and now pending before RTC Branch 216, he
should be dropped as one of the defendants in this case and whatever
claims plaintiffs may have against defendant Hermano, they can set it
up by way of an answer to said judicial foreclosure.[16]
And, in an Order dated 25 May 2000, the trial court resolved
petitioners motion for reconsideration by dismissing the same, to wit:
After going over the arguments of the parties, the Court believes that
defendant Hermano has nothing to do with the transaction which the
plaintiffs entered into with defendant Zescon Land, Inc. Besides, the
said motion raised matters and defenses previously considered and
passed upon by the Court.[17]
It is these two Orders that were brought up by petitioners to the Court
of Appeals on petition for Certiorari under Rule 65. The pivotal issue to
be resolved, therefore, is whether or not respondent trial court
committed grave abuse of discretion in dismissing the complaint
against respondent Hermano in Civil Case No. Q-98-34211.
As far as we can glean from the Orders of the trial court, respondent
Hermano was dropped from the complaint on the ground of misjoinder
12
CIVIL PROCEDURE - Session 3
of causes of action. Petitioners, on the other hand, insist that there
was no misjoinder in this case.
To better understand the present controversy, it is vital to revisit the
rules on joinder of causes of action as exhaustively discussed
in Republic v. Hernandez,[18] thus:
By a joinder of actions, or more properly, a joinder of causes of action,
is meant the uniting of two or more demands or rights of action in one
action; the statement of more than one cause of action in a
declaration. It is the union of two or more civil causes of action, each
of which could be made the basis of a separate suit, in the same
complaint, declaration or petition. A plaintiff may under certain
circumstances join several distinct demands, controversies or rights of
action in one declaration, complaint or petition.
As can easily be inferred from the above definitions, a party is
generally not required to join in one suit several distinct causes of
action. The joinder of separate causes of action, where allowable, is
permissive and not mandatory in the absence of a contrary statutory
provision, even though the causes of action arose from the same
factual setting and might under applicable joinder rules be joined.
Modern statutes and rules governing joinders are intended to avoid a
multiplicity of suits and to promote the efficient administration of
justice wherever this may be done without prejudice to the rights of
the litigants. To achieve these ends, they are liberally construed.
While joinder of causes of action is largely left to the option of a party
litigant, Section 5, Rule 2 of our present Rules allows causes of action
to be joined in one complaint conditioned upon the following
requisites: (a) it will not violate the rules on jurisdiction, venue and
joinder of parties; and (b) the causes of action arise out of the same
contract, transaction or relation between the parties, or are for
demands for money or are of the same nature and character.
The objectives of the rule or provision are to avoid a multiplicity of
suits where the same parties and subject matter are to be dealt with
by effecting in one action a complete determination of all matters in
controversy and litigation between the parties involving one subject
matter, and to expedite the disposition of litigation at minimum cost.
AL Ilagan-Malipol, AB, MD
The provision should be construed so as to avoid such multiplicity,
where possible, without prejudice to the rights of the litigants. Being
of a remedial nature, the provision should be liberally construed, to
the end that related controversies between the same parties may be
adjudicated at one time; and it should be made effectual as far as
practicable, with the end in view of promoting the efficient
administration of justice.
The statutory intent behind the provisions on joinder of causes of
action is to encourage joinder of actions which could reasonably be
said to involve kindred rights and wrongs, although the courts have
not succeeded in giving a standard definition of the terms used or in
developing a rule of universal application. The dominant idea is to
permit joinder of causes of action, legal or equitable, where there is
some substantial unity between them. While the rule allows a plaintiff
to join as many separate claims as he may have, there should
nevertheless be some unity in the problem presented and a common
question of law and fact involved, subject always to the restriction
thereon regarding jurisdiction, venue and joinder of parties. Unlimited
joinder is not authorized.
Our rule on permissive joinder of causes of action, with the proviso
subjecting it to the correlative rules on jurisdiction, venue and joinder
of parties and requiring a conceptual unity in the problems presented,
effectively disallows unlimited joinder.
Section 6, Rule 2 on misjoinder of causes of action provides:
Sec. 6. Misjoinder of causes of action. - Misjoinder of causes of action
is not a ground for dismissal of an action. A misjoined cause of action
may, on motion of a party or on the initiative of the court, be severed
and proceeded with separately.
There is misjoinder of causes of action when the conditions for joinder
under Section 5, Rule 2 are not met. Section 5 provides:
Sec. 5. Joinder of causes of action. - A party may in one pleading
assert, in the alternative or otherwise, as many causes of action as he
may have against an opposing party, subject to the following
conditions:
13
CIVIL PROCEDURE - Session 3
(a) The party joining the causes of action shall comply with the rules
on joinder of parties;
(b) The joinder shall not include special civil actions or actions
governed by special rules;
(c) Where the causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be allowed
in the Regional Trial Court provided one of the causes of action falls
within the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for
recovery of money, the aggregate amount claimed shall be the test of
jurisdiction.
As far as can be gathered from the assailed Orders, it is the first
condition - on joinder of parties - that the trial court deemed to be
lacking. It is well to remember that the joinder of causes of action
may involve the same parties or different parties. If the joinder
involves different parties, as in this case, there must be a question of
fact or of law common to both parties joined, arising out of the same
transaction or series of transaction.[19]
In herein case, petitioners have adequately alleged in their complaint
that after they had already agreed to enter into a contract to sell with
Zescon Land, Inc., through Sales-Contreras, the latter also gave them
other documents to sign, to wit: A Deed of Absolute Sale over the
same properties but for a lower consideration, two mortgage deeds
over the same properties in favor of respondent Hermano with
accompanying notes and acknowledgment receipts for Ten Million
pesos (P10,000,000) each. Petitioners claim that Zescon Land, Inc.,
through Sales-Contreras, misled them to mortgage their properties
which they had already agreed to sell to the latter.
From the above averments in the complaint, it becomes reasonably
apparent that there are questions of fact and law common to both
Zescon Land, Inc., and respondent Hermano arising from a series of
transaction over the same properties. There is the question of fact, for
example, of whether or not Zescon Land, Inc., indeed misled
AL Ilagan-Malipol, AB, MD
petitioners to sign the mortgage deeds in favor of respondent
Hermano. There is also the question of which of the four contracts
were validly entered into by the parties. Note that under Article 2085
of the Civil Code, for a mortgage to be valid, it is imperative that the
mortgagor be the absolute owner of the thing mortgaged. Thus,
respondent Hermano will definitely be affected if it is subsequently
declared that what was entered into by petitioners and Zescon Land,
Inc., was a Contract of Sale (as evidenced by the Deed of Absolute
Sale signed by them) because this would mean that the contracts of
mortgage were void as petitioners were no longer the absolute owners
of the properties mortgaged. Finally, there is also the question of
whether or not Zescon Land, Inc., as represented by Sales-Contreras,
and respondent Hermano committed fraud against petitioners as to
make them liable for damages.
Prescinding from the foregoing, and bearing in mind that the joinder of
causes of action should be liberally construed as to effect in one action
a complete determination of all matters in controversy involving one
subject matter, we hold that the trial court committed grave abuse of
discretion in severing from the complaint petitioners cause of action
against respondent Hermano.
WHEREFORE, premises considered, the Resolution of the Court of
Appeals dated 19 October 2000 dismissing petitioners petition
for certiorari and its Resolution dated 02 March 2001 denying
petitioners motion for reconsideration are REVERSED and SET ASIDE.
The petition for certiorari is hereby GRANTED. The Orders of the
Regional Trial Court of Quezon City, Branch 224, dated 28 February
2000 and 25 May 2000 are ANNULLED and SET ASIDE. The RTC is
further ordered to reinstate respondent Antonio Hermano as one of
the defendants in Civil Case No. Q-98-34211. No costs.
SO ORDERED.
14
CIVIL PROCEDURE - Session 3
[G.R. No. 164041. July 29, 2005]
ROSENDO ALBA, minor, represented by his mother and natural
guardian, Armi A. Alba, and ARMI A. ALBA, in her personal
capacity, petitioners, vs. COURT OF APPEALS and ROSENDO C.
HERRERA, respondents.
Assailed in this petition for certiorari
[1]
are the February 27, 2004
decision [2] and the May 14, 2004 resolution[3] of the Court of Appeals
in CA-G.R. SP No. 61883, which dismissed petitioners original action
for annulment of judgment[4] of the Regional Trial Court of Manila,
Branch 37, and denied the motion for reconsideration, respectively.
The antecedent facts show that on October 21, 1996, private
respondent Rosendo C. Herrera filed a petition[5] for cancellation of
the following entries in the birth certificate of Rosendo Alba Herrera,
Jr., to wit: (1) the surname Herrera as appended to the name of said
child; (2) the reference to private respondent as the father of Rosendo
Alba Herrera, Jr.; and (3) the alleged marriage of private respondent
to the childs mother, Armi A. Alba (Armi) on August 4, 1982 in
Mandaluyong City. He claimed that the challenged entries are false
and that it was only sometime in September 1996 that he learned of
the existence of said birth certificate.
Private respondent alleged that he married only once, i.e., on June
28, 1965 with Ezperanza C. Santos and never contracted marriage
with Armi nor fathered Rosendo Alba Herrera, Jr. In support thereof,
he presented certifications from the Civil Registrar of Mandaluyong
City[6] and the National Statistics Office,[7] both stating that they have
no record of marriage between private respondent and Armi.
On November 12, 1996, private respondent filed an amended
petition,[8] impleading Armi and all the persons who have or claim any
interest in th[e] petition.[9]
On November 27, 1996, the trial court issued an Order setting the
petition for hearing on January 24, 1997, and directed the publication
and service of said order to Armi at her address appearing in the birth
certificate which is No. 418 Arquiza St., Ermita, Manila, and to the Civil
Registrar of the City of Manila and the Solicitor General. The full text
of the order, reads:
AL Ilagan-Malipol, AB, MD
In a verified Amended Petition for Correction of Entry, the Petitioner
prays, inter alia, that the following entries appearing in the subject
Certificate of Live Birth be deleted:
1. All informations having reference to him as the father of the child
mentioned therein;
2. The surname Herrera appended to the childs name;
3. His alleged marriage with the natural mother of the child.
Finding the Petition to be sufficient in form and substance, let the
Petition be set for hearing on January 24, 1997 at nine oclock in the
morning before this Branch at Rooms 447-449, Fourth Floor, Manila
City Hall. All interested parties are hereby notified of the said hearing
and are ordered to show cause why the Petition should not be granted.
Let a copy of this Order be published at the expense of the Petitioner,
once a week for three (3) consecutive weeks, in a newspaper of
general circulation in the City of Manila, and raffled pursuant to P.D.
1079.
Furnish the Office of the Solicitor General and the Office of the Local
Civil Registrar of the City of Manila with copies of the Petition and of
this Order.
Let the same be likewise furnished the Private Respondent Armi Alba
Herrera at the address indicated in the subject Certificate of Live Birth.
SO ORDERED.[10]
On January 13, 1997, before the scheduled January 24, 1997
hearing, the trial court issued an Amended Order[11] with substantially
the same contents, except that the hearing was re-scheduled to
February 26, 1997. A copy of said Amended Order was published in
Today, a newspaper of general circulation in Manila in its January 20,
27, and February 3, 1997 issues. Copies thereof were also sent to
Armi at No. 418 Arquiza St., Ermita, Manila, on January 17, 1997, the
Local Civil Registrar of Manila and the Solicitor General.
15
CIVIL PROCEDURE - Session 3
At the scheduled hearing on February 26, 1997, the counsel from
the Office of the Solicitor General appeared but filed no opposition to
the petition. Armi, on the other hand was not present. The return of
the notice sent to her had the following notation:
This is to certify that on January 17, 1997, the undersigned [process
server] personally served a copy of the Amended Order in Sp. Proc.
No. 96-80512 dated January 13, 1997 to the private respondent, Armi
Alba Herrera at 418 Arquiza St., Ermita, Manila, but failed and
unavailing for reason that (sic), private respondent is no
longer residing at said given address.[12]
On April 1, 1997, the court a quo rendered a decision which
became final and executory on June 2, 1997.[13] The dispositive
portion thereof, states:
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of
Court, judgment is hereby rendered ordering the correction of the
entries in the Certificate of Live Birth of Rosendo Alba Herrera, Jr., in
such a way that the entry under the name of the child, the surname
Herrera, Jr.[,] is ordered deleted, and the child shall be known as
ROSENDO ALBA; and that the entry under the date and place of
marriage, the date August 4, 1982, Mandaluyong, MM is likewise
ordered deleted or cancelled.
Let a copy of this Decision be furnished the Local Civil Registrar of
Manila for proper correction and entry.
SO ORDERED.[14]
Private respondent filed a motion[15] for amendment of the
decretal portion of the decision to include the cancellation of all entries
having reference to him as the father of petitioner minor. This was
granted in the August 11, 1997 order of the trial court as follows:
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of
Court, judgment is hereby rendered ordering the correction of the
entries in the Certificate of Live Birth of Rosendo Alba Herrera, Jr., in
such a way that the entries under the name of the child, the surname
Herrera, Jr., and the name of the father Rosendo Caparas Herrera are
AL Ilagan-Malipol, AB, MD
ordered deleted, and the child shall be known as ROSENDO ALBA; and
the entry under the date and place of marriage, the date August 4,
1982, Mandaluyong, MM is likewise ordered deleted or cancelled.
SO ORDERED.[16]
On November 24, 2000, Armi and petitioner minor filed a petition
for annulment of judgment before the Court of Appeals on the grounds
of extrinsic fraud and lack of jurisdiction over their person. She
allegedly came to know of the decision of the trial court only on
February 26, 1998, when San Beda College, where her son was
enrolled as a high school student, was furnished by private respondent
with a copy of a court order directing the change of petitioner minors
surname from Herrera to Alba.
Armi averred that private respondent was aware that her address
is at Unit 302 Plaza Towers Condominium, 1175 Lorenzo Guerrero St.,
Ermita, Manila, because such was her residence when she and private
respondent cohabited as husband and wife from 1982 to 1988; and
her abode when petitioner minor was born on March 8, 1985. Even
after their separation, private respondent continued to give support to
their son until 1998; and that Unit 302 was conveyed to her by private
respondent on June 14, 1991 as part of his support to petitioner
minor. According to Armi, her address i.e., No. 418 Arquiza St.,
Ermita, Manila, as appearing in the birth certificate of their son, was
entered in said certificate through the erroneous information given by
her sister, Corazon Espiritu. She stressed that private respondent
knew all along that No. 418 Arquiza St., is the residence of her sister
and that he deliberately caused the service of notice therein to
prevent her from opposing the petition.
In his answer, private respondent denied paternity of petitioner
minor and his purported cohabitation with Armi. He branded the
allegations of the latter as false statements coming from a polluted
source.[17]
On February 27, 2004, the Court of Appeals dismissed the petition
holding, among others, that petitioner failed to prove that private
respondent employed fraud and purposely deprived them of their day
in court. It further held that as an illegitimate child, petitioner minor
16
CIVIL PROCEDURE - Session 3
should bear the surname of his mother.[18] Petitioners filed a motion
for reconsideration but was denied.
Hence, the instant petition.
Under Section 2, Rule 47 of the 1997 Revised Rules of Civil
Procedure, judgments may be annulled on the grounds of lack of
jurisdiction and extrinsic fraud.[19]
Whether or not the trial court acquired jurisdiction over the person
of petitioner and her minor child depends on the nature of private
respondents action, that is, in personam, in rem or quasi in rem. An
action in personam is lodged against a person based on personal
liability; an action in rem is directed against the thing itself instead of
the person; while an action quasi in rem names a person as
defendant, but its object is to subject that persons interest in a
property to a corresponding lien or obligation.[20]
Hence, petitions directed against the thing itself or
the res,[21] which concerns the status of a person, [22] like a petition
for adoption,[23] annulment of marriage,[24] or correction of entries in
the birth certificate,[25] as in the instant case, are actions in rem.
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the case.
In a proceeding in rem or quasi in rem, jurisdiction over the person of
the defendant is not a prerequisite to confer jurisdiction on the court,
provided that the latter has jurisdiction over the res. Jurisdiction over
the res is acquired either (a) by the seizure of the property under legal
process, whereby it is brought into actual custody of the law; or (b) as
a result of the institution of legal proceedings, in which the power of
the court is recognized and made effective.[26] The service of
summons or notice to the defendant is not for the purpose of vesting
the court with jurisdiction but merely for satisfying the due process
requirements.[27]
In the case at bar, the filing with the trial court of the petition for
cancellation vested the latter jurisdiction over the res. Substantial
corrections or cancellations of entries in civil registry records affecting
the status or legitimacy of a person may be effected through the
institution of a petition under Rule 108 of the Revised Rules of Court,
with the proper Regional Trial Court.[28] Being a proceeding in rem,
acquisition of jurisdiction over the person of petitioner is therefore not
AL Ilagan-Malipol, AB, MD
required in the present case. It is enough that the trial court is vested
with jurisdiction over the subject matter.
The service of the order at No. 418 Arquiza St., Ermita, Manila and
the publication thereof in a newspaper of general circulation in Manila,
sufficiently complied with the requirement of due process, the essence
of which is an opportunity to be heard. Said address appeared in the
birth certificate of petitioner minor as the residence of Armi.
Considering that the Certificate of Birth bears her signature, the
entries appearing therein are presumed to have been entered with her
approval. Moreover, the publication of the order is a notice to all
indispensable parties, including Armi and petitioner minor, which binds
the whole world to the judgment that may be rendered in the petition.
An in rem proceeding is validated essentially through
publication.[29] The absence of personal service of the order to Armi
was therefore cured by the trial courts compliance with Section 4, Rule
108, which requires notice by publication, thus:
SEC. 4. Notice and publication. Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the
same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.
In Barco v. Court of Appeals, the trial court granted a petition for
correction/change of entries in a minors birth certificate to reflect the
name of the minors real father as well as to effect the corresponding
change of her surname. In seeking to annul said decision, the other
children of the alleged father claimed that they are indispensable
parties to the petition for correction, hence, the failure to implead
them is a ground to annul the decision of the trial court. The Court of
Appeals denied the petition which was sustained by this Court on the
ground, inter alia, that while petitioner is indeed an indispensable
party, the failure to implead her was cured by the publication of the
order of hearing. Thus
Undoubtedly, Barco is among the parties referred to in Section 3 of
Rule 108. Her interest was affected by the petition for correction, as
any judicial determination that June was the daughter of Armando
17
CIVIL PROCEDURE - Session 3
would affect her wards share in the estate of her father. It cannot be
established whether Nadina knew of Mary Joys existence at the time
she filed the petition for correction. Indeed, doubt may always be cast
as to whether a petitioner under Rule 108 would know of all the
parties whose interests may be affected by the granting of a petition.
For example, a petitioner cannot be presumed to be aware of all the
legitimate or illegitimate offsprings of his/her spouse or paramour. The
fact that Nadina amended her petition to implead Francisco and
Gustilo indicates earnest effort on her part to comply with Section 3 as
quoted above.
Yet, even though Barco was not impleaded in the petition, the Court of
Appeals correctly pointed out that the defect was cured by compliance
with Section 4, Rule 108, which requires notice by publication, thus:
Section 4. Upon the filing of the petition, the court shall, by order, fix
the time and place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once a week for three
(3) consecutive weeks in a newspaper of general circulation in the
province.
The purpose precisely of Section 4, Rule 108 is to bind the
whole world to the subsequent judgment on the petition. The
sweep of the decision would cover even parties who should
have been impleaded under Section 3, Rule 108, but were
inadvertently left out. The Court of Appeals correctly noted:
The publication being ordered was in compliance with, and borne out
by the Order of January 7, 1985. The actual publication of the
September 22, 1983 Order, conferred jurisdiction upon the respondent
court to try and decide the case. While nobody appeared to oppose
the instant petition during the December 6, 1984 hearing, that did not
divest the court from its jurisdiction over the case and of its authority
to continue trying the case. For, the rule is well-settled, that
jurisdiction, once acquired continues until termination of the case.
Verily, a petition for correction is an action in rem, an action against a
thing and not against a person. The decision on the petition binds not
only the parties thereto but the whole world. An in rem proceeding is
AL Ilagan-Malipol, AB, MD
validated essentially through publication. Publication is notice to the
whole world that the proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any sort against the
right sought to be established. It is the publication of such notice that
brings in the whole world as a party in the case and vests the court
with jurisdiction to hear and decide it.[30]
Furthermore, extrinsic fraud, which was private respondents
alleged concealment of Armis present address, was not proven.
Extrinsic fraud exists when there is a fraudulent act committed by the
prevailing party outside of the trial of the case, whereby the defeated
party was prevented from presenting fully his side of the case by fraud
or deception practiced on him by the prevailing party. Here, Armi
contended that private respondent is aware of her present address
because they lived together as husband and wife in the condominium
unit from 1982 to 1988 and because private respondent continued to
give support to their son until 1998. To prove her claim, she presented
(1) private respondents title over the condominium unit; (2) receipts
allegedly issued to private respondent for payment of homeowners or
association dues; (2) a photocopy of a January 14, 1991 deed of sale
of the subject unit in favor of Armi; and (3) the subsequent title
issued to the latter. However, these documents only tend to prove
private respondents previous ownership of the unit and the
subsequent transfer thereof to Armi, but not the claimed live-in
relationship of the parties. Neither does the sale prove that the
conveyance of the unit was part of private respondents support to
petitioner minor. Indeed, intimate relationships and family relations
cannot be inferred from what appears to be an ordinary business
transaction.
Although the January 14, 1991 deed of sale[31] stated that Armi
resides at 1175 L. Guerrero St., Ermita, Manila, the same is not
sufficient to prove that private respondent has knowledge of Armis
address because the former objected to the offer of the deed for being
a mere photocopy.[32] The counsel for petitioners even admitted that
they do not have the original of the deed and that per certification of
the Clerk of Court, the Notary Public who notarized the deed of sale
did not submit a copy of the notarized document as required by the
rules.[33] The deed cannot thus be the basis of ascribing knowledge of
Armis address to private respondent inasmuch as the authenticity
18
CIVIL PROCEDURE - Session 3
thereof was neither admitted by private respondent nor proven by Finally, petitioner failed to establish the merits of her petition to
petitioners. annul the trial courts decision. In an action for annulment of
judgment, the petitioner must convince the court that something may
While Armi presented the alleged love letters/notes from private
indeed be achieved should the assailed decision be annulled.[39] Under
respondent, they were only attached as annexes to the petition and
Article 176[40] of the Family Code as amended by Republic Act (RA)
not formally offered as evidence before the Court of Appeals. More
No. 9255, which took effect on March 19, 2004, illegitimate children
importantly, said letters/notes do not have probative value because
shall use the surname of their mother, unless their father recognizes
they were mere photocopies and never proven to be an authentic
their filiation, in which case they may bear the fathers surname.
writing of private respondent. In the same vein, the affidavits[34] of
In Wang v. Cebu Civil Registrar,[41] it was held that an illegitimate
Armi and her sister, Corazon Espiritu, are of no evidentiary weight.
child whose filiation is not recognized by the father, bears only a given
The basic rule of evidence is that unless the affiants themselves are
name and his mothers surname. The name of the unrecognized
placed on the witness stand to testify on their affidavits, such
illegitimate child identifies him as such. It is only when said child is
affidavits must be rejected for being hearsay. Stated differently, the
recognized that he may use his fathers surname, reflecting his status
declarants of written statements pertaining to disputed facts must be
as an acknowledged illegitimate child.
presented at the trial for cross-examination.[35] Inasmuch as Armi and
her sister were not presented before the Court of Appeals to affirm the In the present case, it is clear from the allegations of Armi that
veracity of their affidavits, the same are considered hearsay and petitioner minor is an illegitimate child because she was never married
without probative value. to private respondent. Considering that the latter strongly asserts that
he is not the father of petitioner minor, the latter is therefore an
Ei incumbit probotio qui dicit, non qui negat. He who asserts, not
unrecognized illegitimate child. As such, he must bear the surname of
he who denies, must prove.[36] Armis claim that private respondent is
his mother.
aware of her present address is anchored on the assertion of a live-in
relationship and support to her son. Since the evidence presented by In sum, the substantive and procedural aspects of the instant
Armi is not sufficient to prove the purported cohabitation and support, controversy do not warrant the annulment of the trial courts decision.
it follows that private respondents knowledge of Armis address was
WHEREFORE, the petition is DISMISSED. The February 27, 2004
likewise not proven. Thus, private respondent could not have
decision and the May 14, 2004 resolution of the Court of Appeals in
deliberately concealed from the court that which was not shown to be
CA-G.R. SP No. 61883 are AFFIRMED.
known to him. The Court of Appeals therefore correctly dismissed the
petition for annulment of judgment on the ground of failure to SO ORDERED.
establish extrinsic fraud.
The proper remedy of a party aggrieved by a decision of the Court
of Appeals in an action to annul a judgment of a Regional Trial Court is
a petition for review on certiorari under Rule 45 of the Revised Rules
of Civil Procedure, where only questions of law may be raised. The
resort of petitioner to the instant civil action for certiorari under Rule
65 is therefore erroneous. The special civil action of certiorari will not
be allowed as a substitute for failure to timely file a petition for review
under Rule 45, which should be instituted within 15 days [37] from
receipt of the assailed decision or resolution. The wrong choice of
remedy thus provides another reason to dismiss this petition.[38]

AL Ilagan-Malipol, AB, MD 19
CIVIL PROCEDURE - Session 3
G.R. No. 175799 November 28, 2011
NM ROTHSCHILD & SONS (AUSTRALIA) LIMITED, Petitioner,
vs.
LEPANTO CONSOLIDATED MINING COMPANY, Respondent.
This is a Petition for Review on Certiorari assailing the Decision 1 of the
Court of Appeals dated September 8, 2006 in CA-G.R. SP No. 94382
and its Resolution2 dated December 12, 2006, denying the Motion for
Reconsideration.
On August 30, 2005, respondent Lepanto Consolidated Mining
Company filed with the Regional Trial Court (RTC) of Makati City a
Complaint3 against petitioner NM Rothschild & Sons (Australia) Limited
praying for a judgment declaring the loan and hedging contracts
between the parties void for being contrary to Article 20184 of the Civil
Code of the Philippines and for damages. The Complaint was docketed
as Civil Case No. 05-782, and was raffled to Branch 150. Upon
respondent’s (plaintiff’s) motion, the trial court authorized
respondent’s counsel to personally bring the summons and Complaint
to the Philippine Consulate General in Sydney, Australia for the latter
office to effect service of summons on petitioner (defendant).
On October 20, 2005, petitioner filed a Special Appearance With
Motion to Dismiss5 praying for the dismissal of the Complaint on the
following grounds: (a) the court has not acquired jurisdiction over the
person of petitioner due to the defective and improper service of
summons; (b) the Complaint failed to state a cause of action and
respondent does not have any against petitioner; (c) the action is
barred by estoppel; and (d) respondent did not come to court with
clean hands.
On November 29, 2005, petitioner filed two Motions: (1) a Motion for
Leave to take the deposition of Mr. Paul Murray (Director, Risk
Management of petitioner) before the Philippine Consul General; and
(2) a Motion for Leave to Serve Interrogatories on respondent.
On December 9, 2005, the trial court issued an Order6 denying the
Motion to Dismiss. According to the trial court, there was a proper
service of summons through the Department of Foreign Affairs (DFA)
on account of the fact that the defendant has neither applied for a
AL Ilagan-Malipol, AB, MD
license to do business in the Philippines, nor filed with the Securities
and Exchange Commission (SEC) a Written Power of Attorney
designating some person on whom summons and other legal
processes maybe served. The trial court also held that the Complaint
sufficiently stated a cause of action. The other allegations in the
Motion to Dismiss were brushed aside as matters of defense which can
best be ventilated during the trial.
On December 27, 2005, petitioner filed a Motion for Reconsideration.7
On March 6, 2006, the trial court issued an Order denying the
December 27, 2005 Motion for Reconsideration and disallowed the
twin Motions for Leave to take deposition and serve written
interrogatories.8
On April 3, 2006, petitioner sought redress via a Petition for Certiorari9
with the Court of Appeals, alleging that the trial court committed
grave abuse of discretion in denying its Motion to Dismiss. The Petition
was docketed as CA-G.R. SP No. 94382.
On September 8, 2006, the Court of Appeals rendered the assailed
Decision dismissing the Petition for Certiorari. The Court of Appeals
ruled that since the denial of a Motion to Dismiss is an interlocutory
order, it cannot be the subject of a Petition for Certiorari, and may
only be reviewed in the ordinary course of law by an appeal from the
judgment after trial. On December 12, 2006, the Court of Appeals
rendered the assailed Resolution denying the petitioner’s Motion for
Reconsideration.
Meanwhile, on December 28, 2006, the trial court issued an Order
directing respondent to answer some of the questions in petitioner’s
Interrogatories to Plaintiff dated September 7, 2006.
Notwithstanding the foregoing, petitioner filed the present petition
assailing the September 8, 2006 Decision and the December 12, 2006
Resolution of the Court of Appeals. Arguing against the ruling of the
appellate court, petitioner insists that (a) an order denying a motion
to dismiss may be the proper subject of a petition for certiorari; and
(b) the trial court committed grave abuse of discretion in not finding
that it had not validly acquired jurisdiction over petitioner and that the
plaintiff had no cause of action.
20
CIVIL PROCEDURE - Session 3
Respondent, on the other hand, posits that: (a) the present Petition
should be dismissed for not being filed by a real party in interest and
for lack of a proper verification and certificate of non-forum shopping;
(b) the Court of Appeals correctly ruled that certiorari was not the
proper remedy; and (c) the trial court correctly denied petitioner’s
motion to dismiss.
Our discussion of the issues raised by the parties follows:
Whether petitioner is a real party in interest
Respondent argues that the present Petition should be dismissed on
the ground that petitioner no longer existed as a corporation at the
time said Petition was filed on February 1, 2007. Respondent points
out that as of the date of the filing of the Petition, there is no such
corporation that goes by the name NM Rothschild and Sons (Australia)
Limited. Thus, according to respondent, the present Petition was not
filed by a real party in interest, citing our ruling in Philips Export B.V.
v. Court of Appeals,10 wherein we held:
A name is peculiarly important as necessary to the very existence of a
corporation (American Steel Foundries vs. Robertson, 269 US 372, 70
L ed 317, 46 S Ct 160; Lauman vs. Lebanon Valley R. Co., 30 Pa 42;
First National Bank vs. Huntington Distilling Co., 40 W Va 530, 23 SE
792). Its name is one of its attributes, an element of its existence, and
essential to its identity (6 Fletcher [Perm Ed], pp. 3-4). The general
rule as to corporations is that each corporation must have a name by
which it is to sue and be sued and do all legal acts. The name of a
corporation in this respect designates the corporation in the same
manner as the name of an individual designates the person (Cincinnati
Cooperage Co. vs. Bate, 96 Ky 356, 26 SW 538; Newport Mechanics
Mfg. Co. vs. Starbird, 10 NH 123); and the right to use its corporate
name is as much a part of the corporate franchise as any other
privilege granted (Federal Secur. Co. vs. Federal Secur. Corp., 129 Or
375, 276 P 1100, 66 ALR 934; Paulino vs. Portuguese Beneficial
Association, 18 RI 165, 26 A 36).11
In its Memorandum12 before this Court, petitioner started to refer to
itself as Investec Australia Limited (formerly "NM Rothschild & Sons
[Australia] Limited") and captioned said Memorandum accordingly.
AL Ilagan-Malipol, AB, MD
Petitioner claims that NM Rothschild and Sons (Australia) Limited still
exists as a corporation under the laws of Australia under said new
name. It presented before us documents evidencing the process in the
Australian Securities & Investment Commission on the change of
petitioner’s company name from NM Rothschild and Sons (Australia)
Limited to Investec Australia Limited.13
We find the submissions of petitioner on the change of its corporate
name satisfactory and resolve not to dismiss the present Petition for
Review on the ground of not being prosecuted under the name of the
real party in interest. While we stand by our pronouncement in Philips
Export on the importance of the corporate name to the very existence
of corporations and the significance thereof in the corporation’s right
to sue, we shall not go so far as to dismiss a case filed by the proper
party using its former name when adequate identification is presented.
A real party in interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails
of the suit.14 There is no doubt in our minds that the party who filed
the present Petition, having presented sufficient evidence of its
identity and being represented by the same counsel as that of the
defendant in the case sought to be dismissed, is the entity that will be
benefited if this Court grants the dismissal prayed for.
Since the main objection of respondent to the verification and
certification against forum shopping likewise depends on the supposed
inexistence of the corporation named therein, we give no credit to said
objection in light of the foregoing discussion.
Propriety of the Resort to a Petition for Certiorari with the
Court of Appeals
We have held time and again that an order denying a Motion to
Dismiss is an interlocutory order which neither terminates nor finally
disposes of a case as it leaves something to be done by the court
before the case is finally decided on the merits. The general rule,
therefore, is that the denial of a Motion to Dismiss cannot be
questioned in a special civil action for Certiorari which is a remedy
designed to correct errors of jurisdiction and not errors of judgment. 15
However, we have likewise held that when the denial of the Motion to
Dismiss is tainted with grave abuse of discretion, the grant of the
21
CIVIL PROCEDURE - Session 3
extraordinary remedy of Certiorari may be justified. By "grave abuse
of discretion" is meant:
[S]uch capricious and whimsical exercise of judgment that is
equivalent to lack of jurisdiction. The abuse of discretion must be
grave as where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and must be so
patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act all in
contemplation of law.16
The resolution of the present Petition therefore entails an inquiry into
whether the Court of Appeals correctly ruled that the trial court did not
commit grave abuse of discretion in its denial of petitioner’s Motion to
Dismiss. A mere error in judgment on the part of the trial court would
undeniably be inadequate for us to reverse the disposition by the
Court of Appeals.
Issues more properly ventilated during the trial of the case
As previously stated, petitioner seeks the dismissal of Civil Case No.
05-782 on the following grounds: (a) lack of jurisdiction over the
person of petitioner due to the defective and improper service of
summons; (b) failure of the Complaint to state a cause of action and
absence of a cause of action; (c) the action is barred by estoppel; and
(d) respondent did not come to court with clean hands.
As correctly ruled by both the trial court and the Court of Appeals, the
alleged absence of a cause of action (as opposed to the failure to state
a cause of action), the alleged estoppel on the part of petitioner, and
the argument that respondent is in pari delicto in the execution of the
challenged contracts, are not grounds in a Motion to Dismiss as
enumerated in Section 1, Rule 1617 of the Rules of Court. Rather, such
defenses raise evidentiary issues closely related to the validity and/or
existence of respondent’s alleged cause of action and should therefore
be threshed out during the trial.
As regards the allegation of failure to state a cause of action, while the
same is usually available as a ground in a Motion to Dismiss, said
ground cannot be ruled upon in the present Petition without going into
AL Ilagan-Malipol, AB, MD
the very merits of the main case.
It is basic that "[a] cause of action is the act or omission by which a
party violates a right of another."18 Its elements are the following: (1)
a right existing in favor of the plaintiff, (2) a duty on the part of the
defendant to respect the plaintiff's right, and (3) an act or omission of
the defendant in violation of such right.19 We have held that to sustain
a Motion to Dismiss for lack of cause of action, the complaint must
show that the claim for relief does not exist and not only that the
claim was defectively stated or is ambiguous, indefinite or uncertain.20
The trial court held that the Complaint in the case at bar contains all
the three elements of a cause of action, i.e., it alleges that: (1)
plaintiff has the right to ask for the declaration of nullity of the
Hedging Contracts for being null and void and contrary to Article 2018
of the Civil Code of the Philippines; (2) defendant has the
corresponding obligation not to enforce the Hedging Contracts because
they are in the nature of wagering or gambling agreements and
therefore the transactions implementing those contracts are null and
void under Philippine laws; and (3) defendant ignored the advice and
intends to enforce the Hedging Contracts by demanding financial
payments due therefrom.21
The rule is that in a Motion to Dismiss, a defendant hypothetically
admits the truth of the material allegations of the ultimate facts
contained in the plaintiff's complaint.22 However, this principle of
hypothetical admission admits of exceptions. Thus, in Tan v. Court of
Appeals, 23 we held:
The flaw in this conclusion is that, while conveniently echoing the
general rule that averments in the complaint are deemed
hypothetically admitted upon the filing of a motion to dismiss
grounded on the failure to state a cause of action, it did not take into
account the equally established limitations to such rule, i.e., that a
motion to dismiss does not admit the truth of mere epithets of
fraud; nor allegations of legal conclusions; nor an erroneous
statement of law; nor mere inferences or conclusions from facts not
stated; nor mere conclusions of law; nor allegations of fact the
falsity of which is subject to judicial notice; nor matters of evidence;
nor surplusage and irrelevant matter; nor scandalous matter inserted
22
CIVIL PROCEDURE - Session 3
merely to insult the opposing party; nor to legally impossible facts;
nor to facts which appear unfounded by a record incorporated in the
pleading, or by a document referred to; and, nor to general averments
contradicted by more specific averments. A more judicious resolution
of a motion to dismiss, therefore, necessitates that the court be not
restricted to the consideration of the facts alleged in the complaint and
inferences fairly deducible therefrom. Courts may consider other facts
within the range of judicial notice as well as relevant laws and
jurisprudence which the courts are bound to take into account, and
they are also fairly entitled to examine records/documents
duly incorporated into the complaint by the pleader himself in
ruling on the demurrer to the complaint.24 (Emphases supplied.)
In the case at bar, respondent asserts in the Complaint that the
Hedging Contracts are void for being contrary to Article 201825 of the
Civil Code. Respondent claims that under the Hedging Contracts,
despite the express stipulation for deliveries of gold, the intention of
the parties was allegedly merely to compel each other to pay the
difference between the value of the gold at the forward price stated in
the contract and its market price at the supposed time of delivery.
Whether such an agreement is void is a mere allegation of a
conclusion of law, which therefore cannot be hypothetically admitted.
Quite properly, the relevant portions of the contracts sought to be
nullified, as well as a copy of the contract itself, are incorporated in
the Complaint. The determination of whether or not the Complaint
stated a cause of action would therefore involve an inquiry into
whether or not the assailed contracts are void under Philippine laws.
This is, precisely, the very issue to be determined in Civil Case No. 05-
782. Indeed, petitioner’s defense against the charge of nullity of the
Hedging Contracts is the purported intent of the parties that actual
deliveries of gold be made pursuant thereto. Such a defense requires
the presentation of evidence on the merits of the case. An issue that
"requires the contravention of the allegations of the complaint, as well
as the full ventilation, in effect, of the main merits of the case, should
not be within the province of a mere Motion to Dismiss."26 The trial
court, therefore, correctly denied the Motion to Dismiss on this
ground.
It is also settled in jurisprudence that allegations of estoppel and bad
AL Ilagan-Malipol, AB, MD
faith require proof. Thus, in Parañaque Kings Enterprises, Inc. v. Court
of Appeals,27 we ruled:
Having come to the conclusion that the complaint states a valid cause
of action for breach of the right of first refusal and that the trial court
should thus not have dismissed the complaint, we find no more need
to pass upon the question of whether the complaint states a cause of
action for damages or whether the complaint is barred by
estoppel or laches. As these matters require presentation and/or
determination of facts, they can be best resolved after trial on
the merits.28 (Emphases supplied.)
On the proposition in the Motion to Dismiss that respondent has come
to court with unclean hands, suffice it to state that the determination
of whether one acted in bad faith and whether damages may be
awarded is evidentiary in nature. Thus, we have previously held that
"[a]s a matter of defense, it can be best passed upon after a full-
blown trial on the merits."29
Jurisdiction over the person of petitioner
Petitioner alleges that the RTC has not acquired jurisdiction over its
person on account of the improper service of summons. Summons
was served on petitioner through the DFA, with respondent’s counsel
personally bringing the summons and Complaint to the Philippine
Consulate General in Sydney, Australia.
In the pleadings filed by the parties before this Court, the parties
entered into a lengthy debate as to whether or not petitioner is doing
business in the Philippines. However, such discussion is completely
irrelevant in the case at bar, for two reasons. Firstly, since the
Complaint was filed on August 30, 2005, the provisions of the 1997
Rules of Civil Procedure govern the service of summons. Section 12,
Rule 14 of said rules provides:
Sec. 12. Service upon foreign private juridical entity. – When the
defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident
agent designated in accordance with law for that purpose, or, if there
be no such agent, on the government official designated by law to that
23
CIVIL PROCEDURE - Session 3
effect, or on any of its officers or agents within the Philippines.
(Emphasis supplied.)
This is a significant amendment of the former Section 14 of said rule
which previously provided:
Sec. 14. Service upon private foreign corporations. — If the defendant
is a foreign corporation, or a nonresident joint stock company or
association, doing business in the Philippines, service may be
made on its resident agent designated in accordance with law for that
purpose, or if there be no such agent, on the government official
designated by law to that effect, or on any of its officers or agents
within the Philippines. (Emphasis supplied.)
The coverage of the present rule is thus broader.30 Secondly, the
service of summons to petitioner through the DFA by the conveyance
of the summons to the Philippine Consulate General in Sydney,
Australia was clearly made not through the above-quoted Section 12,
but pursuant to Section 15 of the same rule which provides:
Sec. 15. 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 the relief demanded
consists, wholly or in part, in excluding the defendant from any
interest therein, or the property of the defendant has been attached
within the Philippines, service may, by leave of court, be effected out
of the Philippines by personal service as under section 6; 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.
Respondent argues31 that extraterritorial service of summons upon
foreign private juridical entities is not proscribed under the Rules of
Court, and is in fact within the authority of the trial court to adopt, in
AL Ilagan-Malipol, AB, MD
accordance with Section 6, Rule 135:
Sec. 6. Means to carry jurisdiction into effect. – When by law
jurisdiction is conferred on a court or judicial officer, all auxiliary writs,
processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed
in the exercise of such jurisdiction is not specifically pointed out by law
or by these rules, any suitable process or mode of proceeding may be
adopted which appears comformable to the spirit of said law or rules.
Section 15, Rule 14, however, is the specific provision dealing
precisely with the service of summons on a defendant which does not
reside and is not found in the Philippines, while Rule 135 (which is in
Part V of the Rules of Court entitled Legal Ethics) concerns the general
powers and duties of courts and judicial officers.
Breaking down Section 15, Rule 14, it is apparent that there are only
four instances wherein a defendant who is a non-resident and is not
found in the country may be served with summons by extraterritorial
service, to wit: (1) when the action affects the personal status of the
plaintiffs; (2) when the action relates to, or the subject of which is
property, within the Philippines, in which the defendant claims a lien or
an interest, actual or contingent; (3) when the relief demanded in
such action consists, wholly or in part, in excluding the defendant from
any interest in property located in the Philippines; and (4) when the
defendant non-resident's property has been attached within the
Philippines. In these instances, service of summons may be effected
by (a) personal service out of the country, with leave of court; (b)
publication, also with leave of court; or (c) any other manner the court
may deem sufficient.32
Proceeding from this enumeration, we held in Perkin Elmer Singapore
Pte Ltd. v. Dakila Trading Corporation33 that:
Undoubtedly, extraterritorial service of summons applies only
where the action is in rem or quasi in rem, but not if an action
is in personam.
When the case instituted is an action in rem or quasi in rem, Philippine
courts already have jurisdiction to hear and decide the case because,
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in actions in rem and quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on the court,
provided that the court acquires jurisdiction over the res. Thus, in
such instance, extraterritorial service of summons can be made upon
the defendant. The said extraterritorial service of summons is not for
the purpose of vesting the court with jurisdiction, but for complying
with the requirements of fair play or due process, so that the
defendant will be informed of the pendency of the action against him
and the possibility that property in the Philippines belonging to him or
in which he has an interest may be subjected to a judgment in favor of
the plaintiff, and he can thereby take steps to protect his interest if he
is so minded. On the other hand, when the defendant or
respondent does not reside and is not found in the Philippines,
and the action involved is in personam, Philippine courts
cannot try any case against him because of the impossibility of
acquiring jurisdiction over his person unless he voluntarily
appears in court.34 (Emphases supplied.)
In Domagas v. Jensen,35 we held that:
[T]he aim and object of an action determine its character. Whether a
proceeding is in rem, or in personam, or quasi in rem for that matter,
is determined by its nature and purpose, and by these only. A
proceeding in personam is a proceeding to enforce personal rights and
obligations brought against the person and is based on the jurisdiction
of the person, although it may involve his right to, or the exercise of
ownership of, specific property, or seek to compel him to control or
dispose of it in accordance with the mandate of the court. The purpose
of a proceeding in personam is to impose, through the judgment of a
court, some responsibility or liability directly upon the person of the
defendant. Of this character are suits to compel a defendant to
specifically perform some act or actions to fasten a pecuniary liability
on him.36
It is likewise settled that "[a]n action in personam is lodged against a
person based on personal liability; an action in rem is directed against
the thing itself instead of the person; while an action quasi in rem
names a person as defendant, but its object is to subject that person’s
interest in a property to a corresponding lien or obligation."37
AL Ilagan-Malipol, AB, MD
The Complaint in the case at bar is an action to declare the loan
and Hedging Contracts between the parties void with a prayer
for damages. It is a suit in which the plaintiff seeks to be freed from
its obligations to the defendant under a contract and to hold said
defendant pecuniarily liable to the plaintiff for entering into such
contract. It is therefore an action in personam, unless and until the
plaintiff attaches a property within the Philippines belonging to the
defendant, in which case the action will be converted to one quasi in
rem.
Since the action involved in the case at bar is in personam and since
the defendant, petitioner Rothschild/Investec, does not reside and is
not found in the Philippines, the Philippine courts cannot try any case
against it because of the impossibility of acquiring jurisdiction over its
person unless it voluntarily appears in court.38
In this regard, respondent vigorously argues that petitioner should be
held to have voluntarily appeared before the trial court when it prayed
for, and was actually afforded, specific reliefs from the trial court.39
Respondent points out that while petitioner’s Motion to Dismiss was
still pending, petitioner prayed for and was able to avail of modes of
discovery against respondent, such as written interrogatories,
requests for admission, deposition, and motions for production of
documents.40
Petitioner counters that under this Court’s ruling in the leading case of
La Naval Drug Corporation v. Court of Appeals,41 a party may file a
Motion to Dismiss on the ground of lack of jurisdiction over its person,
and at the same time raise affirmative defenses and pray for
affirmative relief, without waiving its objection to the acquisition of
jurisdiction over its person.42
It appears, however, that petitioner misunderstood our ruling in La
Naval. A close reading of La Naval reveals that the Court intended a
distinction between the raising of affirmative defenses in an Answer
(which would not amount to acceptance of the jurisdiction of the
court) and the prayer for affirmative reliefs (which would be
considered acquiescence to the jurisdiction of the court):
In the same manner that a plaintiff may assert two or more
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CIVIL PROCEDURE - Session 3
causes of action in a court suit, a defendant is likewise
expressly allowed, under Section 2, Rule 8, of the Rules of
Court, to put up his own defenses alternatively or even
hypothetically. Indeed, under Section 2, Rule 9, of the Rules of
Court, defenses and objections not pleaded either in a motion to
dismiss or in an answer, except for the failure to state a cause of
action, are deemed waived. We take this to mean that a defendant
may, in fact, feel enjoined to set up, along with his objection to the
court's jurisdiction over his person, all other possible defenses. It thus
appears that it is not the invocation of any of such defenses, but the
failure to so raise them, that can result in waiver or estoppel. By
defenses, of course, we refer to the grounds provided for in
Rule 16 of the Rules of Court that must be asserted in a motion
to dismiss or by way of affirmative defenses in an answer.
Mindful of the foregoing, in Signetics Corporation vs. Court of
Appeals and Freuhauf Electronics Phils., Inc. (225 SCRA 737,
738), we lately ruled:
"This is not to say, however, that the petitioner's right to
question the jurisdiction of the court over its person is now to
be deemed a foreclosed matter. If it is true, as Signetics claims,
that its only involvement in the Philippines was through a passive
investment in Sigfil, which it even later disposed of, and that TEAM
Pacific is not its agent, then it cannot really be said to be doing
business in the Philippines. It is a defense, however, that requires the
contravention of the allegations of the complaint, as well as a full
ventilation, in effect, of the main merits of the case, which should not
thus be within the province of a mere motion to dismiss. So, also, the
issue posed by the petitioner as to whether a foreign corporation
which has done business in the country, but which has ceased to do
business at the time of the filing of a complaint, can still be made to
answer for a cause of action which accrued while it was doing
business, is another matter that would yet have to await the reception
and admission of evidence. Since these points have seasonably
been raised by the petitioner, there should be no real cause for
what may understandably be its apprehension, i.e., that by its
participation during the trial on the merits, it may, absent an
invocation of separate or independent reliefs of its own, be
considered to have voluntarily submitted itself to the court's
AL Ilagan-Malipol, AB, MD
jurisdiction."43 (Emphases supplied.)
In order to conform to the ruling in La Naval, which was decided by
this Court in 1994, the former Section 23, Rule 14 44 concerning
voluntary appearance was amended to include a second sentence in
its equivalent provision in the 1997 Rules of Civil Procedure:
SEC. 20. Voluntary appearance. – The defendant's voluntary
appearance in the action shall be equivalent to service of summons.
The inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall
not be deemed a voluntary appearance. (Emphasis supplied.)
The new second sentence, it can be observed, merely mentions other
grounds in a Motion to Dismiss aside from lack of jurisdiction over the
person of the defendant. This clearly refers to affirmative defenses,
rather than affirmative reliefs.
Thus, while mindful of our ruling in La Naval and the new Section 20,
Rule 20, this Court, in several cases, ruled that seeking affirmative
relief in a court is tantamount to voluntary appearance therein. 45
Thus, in Philippine Commercial International Bank v. Dy Hong Pi,46
wherein defendants filed a "Motion for Inhibition without submitting
themselves to the jurisdiction of this Honorable Court" subsequent to
their filing of a "Motion to Dismiss (for Lack of Jurisdiction)," we held:
Besides, any lingering doubts on the issue of voluntary appearance
dissipate when the respondents' motion for inhibition is considered.
This motion seeks a sole relief: inhibition of Judge Napoleon Inoturan
from further hearing the case. Evidently, by seeking affirmative
relief other than dismissal of the case, respondents manifested
their voluntary submission to the court's jurisdiction. It is well-
settled that the active participation of a party in the proceedings is
tantamount to an invocation of the court's jurisdiction and a
willingness to abide by the resolution of the case, and will bar said
party from later on impugning the court's jurisdiction. 47 (Emphasis
supplied.)1âwphi1
In view of the above, we therefore rule that petitioner, by seeking
affirmative reliefs from the trial court, is deemed to have voluntarily
26
CIVIL PROCEDURE - Session 3
submitted to the jurisdiction of said court. A party cannot invoke the
jurisdiction of a court to secure affirmative relief against his opponent
and after obtaining or failing to obtain such relief, repudiate or
question that same jurisdiction.48 Consequently, the trial court cannot
be considered to have committed grave abuse of discretion amounting
to lack or excess of jurisdiction in the denial of the Motion to Dismiss
on account of failure to acquire jurisdiction over the person of the
defendant.

WHEREFORE, the Petition for Review on Certiorari is DENIED. The

Decision of the Court of Appeals dated September 8, 2006 and its
Resolution dated December 12, 2006 in CA-G.R. SP No. 94382 are
hereby AFFIRMED.

AL Ilagan-Malipol, AB, MD 27