You are on page 1of 9

VIOLATION OF SEC.

17, RULE 14

[G.R. No. 150908. January 21, 2005]

LAGRIMAS PACAA-GONZALES, as one of the heirs of Luciano


Pacaa, petitioner, vs. THE HONORABLE COURT OF APPEALS and
MANUEL CARBONELL PHUA, respondents.

DECISION
CARPIO MORALES, J.:

From the February 19, 2001 decision of the Court of Appeals granting a petition,
docketed as CA-G.R. SP No. 39112, Manuel Carbonell Phua v. The Presiding Judges,
Branches 10 and 11, Regional Trial Court, Cebu City, et al, for Annulment of Judgment
of the decision of the Regional Trial Court (RTC) of Cebu City, Branch 11 which
declared null and void a transfer certificate of title covering a 5,311 square meters of
land in Cebu City subject of the present case, the present Petition for Review on
Certiorari was lodged before this Court.
The material antecedents of the case are as follows:
The Spouses Enemesio Emerillo and Urbana Taborada (Amarillo Spouses or
Spouses Amarillo), registered owners of subject lot, Lot 7746 of the Cadastral Survey of
Cebu which was covered by Transfer Certificate of Title (TCT) No. RT-7585, conveyed
the same on July 9, 1975 to herein respondent Manuel Carbonell Phua (Phua),
following which or on July 14, 1975, the Amarillo Spouses title was cancelled and, in its
place, TCT No. 62176 was issued in the name of Phua.
More than a decade later or on June 22, 1987, the Heirs of Josefa Gacho Pacaa
(Heirs of Pacaa), claiming that the subject lot was originally decreed under Decree No.
74768 issued in 1919, to be registered and apparently registered under Original
Certificate of Title No. 1684 in the name of Josefa Gacho after she had died, filed before
the RTC of Cebu City a Complaint[1] for Declaration of Nullity of Title and Annulment of
the Deed of Sale covering subject lot against the Spouses Amarillo and Phua, docketed
as Civil Case No. CEB-6057.
Summons together with copy of the complaint was served to the therein defendants
Spouses Amarillo but not to Phua who was unknown at his given address at Salinas
Compound, Salinas Drive, Lahug, Cebu City.
The Branch Clerk of Branch 11 of the RTC Cebu City, to which Civil Case No. CEB-
6057 was raffled, thus effected service of summons to Phua by postal service but the
same failed, drawing the Heirs of Pacaa to file a motion to effect service of summons by
publication which motion was granted.
Summons and a copy of the complaints were accordingly published once a week for
three consecutive weeks or on October 17, 24, 31, 1988 in The Visayan Herald.
No answer having been received from Phua within the reglementary period, the trial
court declared him in default and the Heirs of Pacaa were allowed to, as they did,
present their evidence ex-parte.
By Decision of April 3, 1991,[2] the trial court rendered judgment in favor of the
therein plaintiff Heirs of Pacaa. A copy of the decision was served to the therein
defendants Amarillo Spouses and Phua by publication in The Freeman, a newspaper
printed in Cebu City and circulated in the provinces and cities of Cebu and in the rest of
the Visayas and Mindanao.
The decision was declared to have become final and executory on August 19,
1991.[3]
Acting upon the motion of the Heirs of Pacaa for declaration of compliance with P.D.
No. 1529, Branch 10 of the RTC of Cebu City, in Cadastral Case No. 12, LRC (GLRO)
Record No. 9468, The Director of Lands v. The Heirs of Josefa Gacho, represented by
Luciano Pacaa, reiterating the declaration of nullity of the Spouses Amarillos title and
that of Phua, directed, by Order of March 24, 1995, [4] the Register of Deeds of Cebu
City to issue a new transfer certificate of title covering [subject lot] in the name of
Luciano Pacaa . . . the representative of the Heirs of Pacaa, without need of
presentation of the owners duplicate copy.
Getting wind of the decision, Phua filed in November 1995 a Petition for Annulment
of Judgment[5] before the appellate court, raising in issue the validity of the service of
summons by publication in Civil Case No. CEB-6057.
The appellate court synthesized Phuas contentions to convince it to rule in the
negative in his favor.

. . . Phua asseverated that in 1988, he was employed as Managing Director Syanibat Malayan
Adjustment Co., Edu Blvd., Bldg., Kuala Lumpur, Malaysia when the summons was served by
publication in a Cebu newspaper. In 1975, he bought Lot 7746 from Spouses Amarillo when he
spent his vacation in the house of his brother-in-law at Salinas Compound, Lahug, Cebu City.
Instead of using 957-B C. Aragon St., Malate, Manila, which was his residence at the time of the
purchase, he merely stated in the Deed of Absolute Sale that he is a resident of Cebu City.
Nevertheless, Juanito C. Mendoza, his brother-in-law transferred residence to 26 Paseo
Annabelle, Maria Luisa Estate Park, Banilad, Cebu City sometime in 1976. He is presently
residing at 31 Vicente R. Jayme St., BF Resort/Vista Grande Village, Las Pias, Metro Manila.

Phua further claimed that the service of summons by publication suffered from fatal defects,
namely: (1) the motion for the service of summons by publication was not supported by an
affidavit stating the grounds for the application in violation of Section 19; (2) the editors
affidavit did not state that The Visayan Herald is a newspaper of general circulation, instead, it
merely stated that it is a newspaper printed in Cebu City and circulated in the provinces and
cities of Cebu and in the rest of Visayas and Mindanao; (3) there was no affidavit stating that a
copy of the summons and order of publication were deposited, postage prepaid, in the post office
and directed to the petitioner by registered mail to his last known address and (4) there was no
notice of the date, place and time of hearing to the petitioner before issuance of a new title in
violation of Section 170 of P.D. 1529, otherwise known as Property Registration Decree.
(Emphasis in the original; underscoring supplied)[6]

By the present assailed decision, the Court of Appeals ruled in Phuas favor in this
wise:

First. a careful scrutiny of the pleadings showed that the motion for leave to serve summons to
Phua by publication was granted by the court (Memorandum for Respondents, p. 4, Rollo, p.
406) although it was not supported by an affidavit setting forth the grounds relied upon by
plaintiffs to effect such service. (Annex 7, Memorandum for Respondents, p. 438)

Respondents, on their part, argued that Phua was not an unknown defendant under the
contemplation of Section 16, Rule 14, which provides:

Whenever the defendant is designated as an unknown owner, or the like, or whenever the address
of a defendant is unknown and cannot be ascertained by diligent inquiry, service may, by leave
of court, be effected upon him by publication in a newspaper of general circulation and such
places and for such time as the court may order.

The respondents further asserted that the foregoing circumstances (unknown owner, defendant
whose address is unknown and cannot be ascertained by diligent inquiry) were absent. Certainly,
Phua was a known buyer of Lot 7746 but he indicated an erroneous address in a public
document. No less than the branch clerk of court and the process server exerted diligent efforts to
serve the summons by personal service and postal service. They regarded these as substantial
compliance with the rules.

We are not convinced.

Section 19, Rule 14 is categorical in requiring the said affidavit. Admittedly, there was failure to
comply with the explicit submission of the same. Ineludible, this Court has no authority to
dispense with such mandatory requirement. The law is unambiguous and its rationale clear. Time
and again, this Court has declared that where the law speaks in clear and categorical language,
there is no room for interpretation, vacillation or equivocation; there is room only for application.
There is no alternative. The respondents cannot proffer excuse and rely on the efforts exerted by
the personnel of the court who were not remised in their duties.

Second. The Visayan Herald is not a newspaper of general circulation.

In the case Valmonte et al. v. Court of Appeals, et al., 303 SCRA 278, 286 citing Sadang and
Lachica v. Government Service Insurance System, 18 SCRA 491, 494, the Supreme Court
ruled that the customary affidavit of the editor of Voz de Manial, duly introduced in evidence,
that it was published in a newspaper of general circulation constitutes prima facie evidence of
such fact. In another case, the High Tribunal regarded the affidavit of publication, executed by
the publisher, business/advertising manager of the Luzon Weekly Courier, which states that it is
a newspaper of general circulation in Rizal, as sufficient to consider the newspaper one of
general circulation. (Bonnevie et al. v. Court of Appeals, et al., 125 SCRA 122)

In the instant suit, there was not even the customary affidavit of editor Jeremias S. Tundag
that The Visayan Herald is a newspaper of general circulation. Instead, it merely stated that it is
printed in Cebu City and circulated in the province and cities of Cebu and in the rest of the
Visayan and Mindanao. Nowhere in the editors affidavit was it manifested that The Visayan
Herald is published for the dissemination of local news and general information, that it has a
bona fide subscription list of paying subscribers and that it is published at regular intervals.
(Basa vs. Mercado, 61 Phil. 632) Hence, We are of ineluctable conclusion that there was no
valid service of summons by publication.

Third, the trial court, having failed to acquire jurisdiction over the person of Phua in Civil Case
No. 6057, the order of the cadastral court in Cadastral Case No. 12 LRC (GLRO) REC. NO.
9468 cancelling TCT Nos. RT-7585 and RT-62176, in favor of Spouses Amarillo and Phua,
respectively and the issuance of a new transfer certificate to Luciano Pacaa pursuant to Section
107 of P. D. No. 1529, is null and void.

Finally, although the Court is not unaware of the fact that the respondents deposited the copy of
the summons and the order of publication by registered mail in the post office, postage prepaid
and were directed to the last known address of the petitioner pursuant to Section 21, service of
summons by postal service is, regrettably not one of the modes sanctioned under the Rules.
(Emphasis and italics in the original; underscoring supplied)[7]

Accordingly, the Court of Appeals disposed as follows:

WHEREFORE, the petition is GRANTED and the Decision of the Regional Trial Court of
Cebu City, Branch 11 in Civil Case No. 6057 dated April 3, 1991 and the Order of the Regional
Trial Court, Cebu City, Branch 10 in Cadastral Case No. 12 LRC (GLRO) REC. NO. 9468 dated
March 24, 1995, are declared NULL and VOID for lack of jurisdiction over the person of the
defendant. The Register of Deeds of Cebu City is ordered to cancel TCT No. 131189 and
reinstate TCT No. 62176 in favor of the petition.

SO ORDERED. (Emphasis in the original)[8]


Hence, the present petition of Lagrimas Pacaa-Gonzales as one of the heirs of
Luciano Pacaa.
In her petition, petitioner alleges that she is filing the petition in her own behalf as
heir and successor-in-interest of Luciano Pacaa, to whom, it bears recalling, the
cadastral court directed the issuance of new title to subject lot.
Petitioner argues, in the main, that assuming arguendo that an affidavit is necessary
to effect service of summons by publication . . . its absence will not affect the legality
and validity of the proceedings in the lower courts, technicalities not being permitted to
sway the broader interest of justice.
Petitioners case fails.
In 1988, when leave to serve summons by publication was filed, the pertinent rules
which have been substantially restated in the present rules provided:

SEC. 16. Service upon an unknown defendant. Whenever the defendant is designated as an
unknown owner, or the like, or whenever the address of a defendant is unknown and cannot be
ascertained by diligent inquiry, service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such places and for such time as the
court may order. (Underscoring supplied)

SEC. 19. Leave of court. Any application to the court under this rule for leave to effect service in
any manner for which leave of court is necessary shall be made by motion in writing, supported
by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the
application. (Underscoring supplied)

SEC. 21. Proof of service by publication. If the service has been made by publication, service
may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor,
business or advertising manager, to which affidavit a copy of the publication shall be attached,
and by an affidavit showing the deposit of a copy of the summons and order for publication in
the post office, postage prepaid, directed to the defendant by registered mail to his last known
address. (Underscoring supplied)

Since Phuas whereabouts were unknown and could not be ascertained by diligent
inquiry, service of summons by publication was correctly availed of by the Heirs of
Pacaa.
From the above-quoted Section 19, the motion to be allowed to serve summons by
publication required a supporting affidavit of the plaintiff or some person on his behalf
setting forth the grounds for the application.
The Motion for Service of Summons by Publications (sic)[9] filed by the counsel of
the Heirs of Pacaa bears no supporting affidavit, however. It did not thus comply with
the Rules.
Furthermore, it has not been shown that the Heirs of Pacaa had complied with the
rule on the presentation of proof of service by publication which, as above-quoted
Section 21 provides, may be proved by an affidavit of the printer . . . to which affidavit a
copy of the publication shall be attached and by an affidavit showing the deposit of a
copy of the summons and order of publication in the post office, postage prepaid,
directed to the defendant by registered mail to his last known address. Nor that The
Visayan Herald is a newspaper of general circulation.
Petitioners appeal for liberality in the application of the rules, technicalities not being
permitted to sway the broader interest of justice, does not lie. Modes of service of
summons must be strictly followed in order that the court may acquire jurisdiction over
the person of the defendant. The purpose of this is to afford the defendant an
opportunity to be heard on the claim against him. [10] The summons intended for Phua
being invalid, the trial court did not acquire jurisdiction over him and could not as it did
not render a valid judgment against him.
WHEREFORE, the petition is hereby DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.
G.R. No. 202505

EXPRESS PADALA (ITALIA) S.P.A., now BDO REMITTANCE (ITALIA) S.P.A., Petitioner
vs.
HELEN M. OCAMPO, Respondent

DECISION

JARDELEZA, J.:

This is a petition for review on certiorari1 challenging the Decision2 dated January 5, 2012 and
Resolution3 dated June 27, 2012 of the Court of Appeals (CA) in CA-G.R. SP No. 113475. The CA
granted the petition for certiorarifiled by respondent Helen M. Ocampo (Ocampo) and set aside the
Decision4 dated September 14, 2009 of the Regional Trial Court (RTC) in Civil Case No. MC08-3775
which granted BDO Remittance (Italia) S.P.A.'s (BDO Remittance) petition for recognition of foreign
judgment.

The core issue being raised is whether service of summons was validly effected upon respondent,
who lives in Italy, through substituted service.

BDO Remittance, a corporation with principal office in Italy, hired respondent Ocampo as a
remittance processor in September 2002. She was dismissed in February 2004 for misappropriating
the sum of €24,035.60 by falsifying invoices of money payments relating to customers' money
transfer orders from February to December 2003.5

Accordingly, BDO Remittance filed a criminal complaint against Ocampo for the same acts before
the Court of Turin, Italy. Ocampo pleaded guilty to the offense charged. On April 13, 2005, the
Honorable Court of Turin convicted and sentenced her to suffer imprisonment of six months and a
penalty of €300.00, but granted her the benefit of suspension of the enforcement of sentence on
account of her guilty plea (the Court of Turin Decision).6

On September 22, 2008, BDO Remittance filed a petition for recognition of foreign judgment7 with
the RTC of Mandaluyong City. BDO Remittance prayed for the recognition of the Court of Turin
Decision and the cancellation or restriction of Ocampo' s Philippine passport by the Department of
Foreign Affairs (DFA).8

On November 21, 2008, the sheriff attempted to personally serve the summons on Ocampo in her
local address alleged in the petition located in San Bernardo Village, Darasa, Tanauan, Batangas.
However, since the address was incomplete, the sheriff sought the help of barangay officials, who
pointed him to the house belonging to Ocampo's father, Nicasio Ocampo, Victor P. Macahia
(Macahia), uncle of Ocampo and present occupant, informed the sheriff that Ocampo and her family
were already in Italy, and that he was only a caretaker of the house. The sheriff then proceeded to
serve the summons upon Macahia.9 After Ocampo failed to file an answer, BDO Remittance filed a
motion to declare Ocampo in default. The RTC granted the motion and allowed BDO Remittance to
present evidence ex parte.10

On September 14, 2009, the RTC rendered a Decision11 in favor of BDO Remittance (RTC Decision).
It recognized as valid and binding in the Philippines the Court of Turin Decision and ordered the DFA
to cancel or restrict Ocampo's Philippine passport and not to allow its renewal until she has served
her sentence.12

On February 11, 2010, Ocampo's mother, Laureana Macahia, received a copy of the RTC Decision
and forwarded it to Ocampo.13 Not having been represented by counsel a quo, the period of appeal
lapsed. Ocampo was later able to engage the services of counsel who filed a petition
for certiorari under Rule 65 with the CA on April 12, 2010.14Ocampo principally argued that the RTC
acted in grave abuse of discretion in recognizing and ordering the enforcement of the Court of Turin
Decision.15

In its now assailed Decision,16 the CA set aside the RTC Decision and revoked the order to cancel or
restrict Ocampo's Philippine passport (CA Decision). The CA first settled the issue of procedural due
process, particularly whether Ocampo was properly served with summons. It held that since
Ocampo's whereabouts were unknown, summons should have been served in accordance with
Section 14, Rule 14 of the Rules of Civil Procedure. The sheriff however, erroneously effected the
substituted service of summons under Section 7 of Rule 14. Thus, the CA concluded that the RTC
did not acquire jurisdiction over Ocampo, and the RTC Decision against her is null and void. It also
found that the RTC acted in grave abuse of discretion when it recognized a foreign judgment of a
criminal case and ordered the DFA to restrict or cancel Ocampo's passport.17

After the CA denied its motion for reconsideration, BDO Remittance filed the present petition for
review under Rule 45 arguing that: (1) Ocampo availed of the wrong remedy; and (2) the RTC did
not gravely abuse its discretion in granting the petition for recognition of foreign judgment and
ordering the DFA to restrict or cancel Ocampo's passport.18

In her comment,19 Ocampo explained that BDO Remittance's insistence on the enforcement of Court
of Turin Decision is misleading because, by availing of the benefit of suspension of the enforcement,
the penalty of confinement will not be enforced upon her. She also presented a decree20 from the
High Court of Turin dated June 29, 2010 which stated that her criminal liability has been
extinguished.

We deny the petition.

The general rule in this jurisdiction is that summons must be served personally on the defendant.
Section 6, Rule 14 of the Rules of Court provides:

Sec. 6. Service in person on defendant. - Whenever practicable, the summons shall be served by
handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him.

For justifiable reasons, however, other modes of serving summons may be resorted to. When the
defendant cannot be served personally within a reasonable time after efforts to locate him have
failed, the rules allow summons to be served by substituted service. Substituted service is effected
by leaving copies of the summons at the defendant's residence with some person of suitable age
and discretion then residing therein, or by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof. 21

When the defendant's whereabouts are unknown, the rules allow service of summons by
publication.22 As an exception to the preferred mode of service, service of summons by publication
may only be resorted to when the whereabouts of the defendant are not only unknown, but cannot
be ascertained by diligent inquiry. The diligence requirement means that there must be prior resort to
personal service under Section 7 and substituted service under Section 8, and proof that these
modes were ineffective before summons by publication may be allowed.23 This mode also requires
the plaintiff to file a written motion for leave of court to effect service of summons by publication,
supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the
application.24

In the present case, the sheriff resorted to substituted service upon Ocampo through her uncle, who
was the caretaker of Ocampo's old family residence in Tanauan, Batangas. The CA held that
substituted service was improperly resorted to. It found that since Ocampo' s "whereabouts are
unknown and cannot be ascertained by diligent inquiry x x x service may be effected only by
publication in a newspaper of general circulation."25

We agree with the CA that substituted service is improper under the facts of this case. Substituted
service presupposes that the place where the summons is being served is the
defendant's current residence or office/regular place of business. Thus, where the defendant
neither resides nor holds office in the address stated in the summons, substituted service cannot be
resorted to. As we explained in Keister v. Navarro: 26

Under the Rules, substituted service may be effect[ed] (a) by leaving copies of the summons at the
defendant's dwelling house or residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular place of business with
some competent person in charge thereof. The terms "dwelling house" or "residence" are generally
held to refer to the time of service, hence it is not sufficient "to leave the copy at defendant's former
dwelling house, residence, or place of abode, as the case may be, after his removal therefrom."
They refer to the place where the person named in the summons is living at the time when the
service is made, even though he may be temporarily out of the country at the time. Similarly, the
terms "office" or "regular place of business" refer to the office or place of business of defendant at
the time of service. Note that the rule designates the persons to whom copies of the process may be
left. The rule presupposes that such a relation of confidence exists between the person with whom
the copy is left and the defendant and, therefore, assumes that such person will deliver the process
to defendant or in some way give him notice thereof.27 (Italics in the original, citations omitted.)

Based on the sheriff’s report, it is clear that Ocampo no longer resides in San Bernardo Village,
Darasa, Tanauan, Batangas. The report categorically stated that "defendant Helen M. Ocampo and
her family were already in Italy,"28without, however, identifying any specific address. Even BDO
Remittance itself admitted in its petition for recognition that Ocampo' s "whereabouts in Italy are no
longer certain."29 This, we note, is the reason why in alleging the two addresses of Ocampo, one in
Italy and one in the Philippines, BDO Remittance used the phrase "last known [address ]"30 instead of
the usual "resident of." Not being a resident of the address where the summons was served, the
substituted service of summons is ineffective. Accordingly, the RTC did not acquire jurisdiction over
the person of Ocampo.

BDO Remittance's reliance on Palma v. Galvez31 is misplaced for the simple reason that the case
involved service of summons to a person who is temporarily out of the country. In this case,
however, Ocampo's sojourn in Italy cannot be classified as temporary considering that she already
resides there, albeit her precise address was not known. Modes of service of summons must be
strictly followed in order that the court may acquire jurisdiction over the person of the defendant. The
purpose of this is to afford the defendant an opportunity to be heard on the claim against him.32 BDO
Remittance is not totally without recourse, as the rules allow summons by publication and
extraterritorial service.33 Unlike substituted service, however, these are extraordinary modes which
require leave of court.

The service of summons is a vital and indispensable ingredient of a defendant's constitutional right
to due process. As a rule, if a defendant has not been validly summoned, the court acquires no
jurisdiction over his person, and a judgment rendered against him is void.34 Since the RTC never
acquired jurisdiction over the person of Ocampo, the judgment rendered by the court could not be
considered binding upon her.

Consequently, it is no longer necessary to delve into the other issues raised in the petition. These
issues can be resolved by the trial court upon acquiring jurisdiction over Ocampo and giving her an
opportunity to be heard. It is in a better position to receive and assess the evidence that may be
presented by Ocampo, including the decree dated June 29, 2010 issued by the High Court of Turin,
to the effect that her liability has been extinguished. While such claim would tend to render the case
moot, we refuse to consider the argument at the first instance on two grounds: first, we are not a trier
of facts; and second, the document submitted has not been authenticated in accordance with the
rules on evidence.

WHEREFORE, the petition is DENIED. The Decision dated January 5, 2012 and Resolution dated
June 27, 2012 of the Court of Appeals in CA-G.R. SP No. 113475 are AFFIRMED insofar as there
was no valid service of summons. The Decision dated September 14, 2009 of the Regional Trial
Court, Branch 212, Mandaluyong City in Civil Case No. MCOS-3775 is declared VOID.

SO ORDERED.