G.R. No.
178789 November 14, 2012 When Lim and the NPC still did not file their answers to the complaint-in-
NATIVIDAD LIM, Petitioner,
vs.
NATIONAL POWER CORPORATION, SPOUSES ROBERTO LL.
ARCINUE and ARABELA ARCINUE,Respondents.
DECISION
ABAD, J.:
This case is about the consequence of a party's failure to explain in his
motion why he served a copy of it on the adverse party by registered mail
rather than by personal service.
The Facts and the Case
On February 8, 1995 respondent National Power Corporation (NPC) filed
an expropriation suit1 against petitioner Natividad B. Lim (Lim) before the
Regional Trial Court (RTC) of Lingayen, Pangasinan, Branch 37 in Civil
Case 17352 covering Lots 2373 and 2374 that the NPC needed for its
Sual Coal-Fired Thermal Power Project. Since Lim was residing in the
United States, the court caused the service of summons on her on
February 20, 1995 through her tenant, a certain Wilfredo
Tabongbong.2 On March 1, 1995, upon notice to Lim and the deposit of
the provisional value of the property, the RTC ordered the issued writ of
possession in NPCs favor that would enable it to cause the removal of
Lim from the land.3
On April 24, 1995, however, Lim, represented by her husband Delfin, filed
an omnibus motion to dismiss the action and to suspend the writ of
possession,4 questioning the RTCs jurisdiction over Lims person and the
nature of the action. She also assailed the failure of the complaint to state
a cause of action. The RTC denied the motions. 5
On December 6, 1996 respondent spouses Roberto and Arabela Arcinue
(the Arcinues) filed a motion for leave to admit complaint in
intervention,6 alleging that they owned and were in possession of Lot
2374, one of the two lots subject of the expropriation. On January 7, 1997
the RTC granted the Arcinues motion and required both the NPC and
Lim to answer the complaint-in-intervention within 10 days from receipt of
its order.7
intervention after 10 months, on December 7, 1998 the Arcinues filed a
motion for judgment by default. 8 Lim sought to expunge the motion on the
ground that it lacked the requisite explanation why the Arcinues resorted
to service by registered mail rather than to personal service. At the
scheduled hearing of the motion, Lims counsel did not appear. The NPC
for its part manifested that it did not file an answer since its interest lay in
determining who was entitled to just compensation.
On March 1, 1999 the RTC issued an order of default9 against both Lim
and the NPC. The RTC pointed out that the Arcinues failure to explain
their resort to service by registered mail had already been cured by the
manifestation of Lims counsel that he received a copy of the Arcinues
motion on December 7, 1998 or 10 days before its scheduled hearing.
Lim filed a motion for reconsideration10 to lift the default order but the
Court denied the motion,11 prompting Lim to file a petition for
certiorari12 before the Court of Appeals (CA) in CA-G.R. SP 52842.
On March 23, 2007 the CA rendered a decision13 that affirmed the RTCs
order of default. Lim filed a motion for reconsideration14 but the CA denied
it,15 prompting her to file the present petition for review.16 On September
24, 2007 the Court initially denied Lims petition17 but on motion for
reconsideration, the Court reinstated the same. 18
Issue Presented
The only issue presented in this case is whether or not the CA gravely
abused its discretion in affirming the order of default that the RTC entered
against Lim.
Ruling of the Court
Lim points out that an answer-in-intervention cannot give rise to default
since the filing of such an answer is only permissive. But Section 4, Rule
1919 of the 1997 Rules of Civil Procedure requires the original parties to
file an answer to the complaint-in-intervention within 15 days from notice
of the order admitting the same, unless a different period is fixed by the
court. This changes the procedure under the former rule where such an
answer was regarded as optional. 20 Thus, Lims failure to file the required
answer can give rise to default.
The trial court had been liberal with Lim. It considered her motion for
reconsideration as a motion to lift the order of default and gave her an
opportunity to explain her side. The court set her motion for hearing but
Lims counsel did not show up in court. She remained unable to show
that her failure to file the required answer was due to fraud, accident,
mistake, or excusable negligence. And, although she claimed that she
had a meritorious defense, she was unable to specify what constituted
such defense.21
Lim points out that the RTC should have ordered the Arcinues motion for
judgment by default expunged from the records since it lacked the
requisite explanation as to why they resorted to service by registered mail
in place of personal service.
There is no question that the Arcinues motion failed to comply with the
requirement of Section 11, Rule 13 of the 1997 Rules of Civil Procedure
which provides:
registered mail when such service, when adopted, ensures as in this
case receipt by the adverse party.
WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of
Appeals Decision in CA-G.R. SP 52842 dated March 23, 2007 and
Resolution dated July 5, 2007 that upheld the orders of the Regional Trial
Court in Civil Case 17352. The Court DIRECTS the RTC to proceed with
its hearing and adjudication of the case.
SO ORDERED.
REOBERTO A. ABAD
Associate Justice

SECTION 11. Priorities in modes of service and filing. Whenever

practicable, the service and filing of pleadings and other papers shall be
done personally. Except with respect to papers emanating from the court,
a resort to other modes must be accompanied by a written explanation,
why the service or filing was not done personally. A violation of this Rule
may be cause to consider the paper as not filed.

But the above does not provide for automatic sanction should a party fail
to submit the required explanation. It merely provides for that possibility
considering its use of the term "may." The question is whether or not the
RTC gravely abused its discretion in not going for the sanction of striking
out the erring motion.1wphi1

The Court finds no such grave abuse of discretion here. As the RTC
pointed out, notwithstanding that the Arcinues' failed to explain their
resort to service by registered mail rather than by personal service, the
fact is that Lim's counsel expressly admitted having received a copy of
the Arcinues' motion for judgment by default on December 7, 1998 or I 0
days before its scheduled hearing. This means that the Arcinues were
diligent enough to file their motion by registered mail long before the
scheduled hearing.

Personal service is required precisely because it often happens that

hearings do not push through because, while a copy of the motion may
have been served by registered mail before the date of the hearing, such
is received by the adverse party already after the hearing. Thus, the rules
prefer personal service. But it does not altogether prohibit service by
G.R. No. 176628 March 19, 2012
PHILIPPINE TOURISM AUTHORITY, Petitioner,
vs.
PHILIPPINE GOLF DEVELOPMENT & EQUIPMENT, INC., Respondent.
RESOLUTION
BRION, J.:
Before this Court is a petition for certiorari, under Rule 65 of the 1997
Rules of Civil Procedure, to annul the decision 1 dated December 13,
2006 of the Court of Appeals (CA) in CA G.R. SP No. 90402. This CA
decision dismissed the petition for annulment of judgment which sought
to set aside the decision2 of the Regional Trial Court (RTC) of Muntinlupa
City, Branch 203, in Civil Case No. 03-212. The RTC held the Philippine
Tourism Authority (PTA) liable for its unpaid obligation to Philippine Golf
Development & Equipment, Inc. (PHILGOLF).
FACTUAL BACKGROUND
On April 3, 1996, PTA, an agency of the Department of Tourism, whose
main function is to bolster and promote tourism, entered into a contract
with Atlantic Erectors, Inc. (AEI) for the construction of the Intramuros
Golf Course Expansion Projects (PAR 60-66) for a contract price of Fifty-
Seven Million Nine Hundred Fifty-Four Thousand Six Hundred Forty-
Seven and 94/100 Pesos (P57,954,647.94).
The civil works of the project commenced. Since AEI was incapable of
constructing the golf course aspect of the project, it entered into a sub-
contract agreement with PHILGOLF, a duly organized domestic
corporation, to build the golf course amounting to Twenty-Seven Million
Pesos (P27,000,000.00). The sub-contract agreement also provides that
PHILGOLF shall submit its progress billings directly to PTA and, in turn,
PTA shall directly pay PHILGOLF.3
On October 2, 2003, PHILGOLF filed a collection suit against PTA
amounting to Eleven Million Eight Hundred Twenty Thousand Five
Hundred Fifty and 53/100 Pesos (P11,820,550.53), plus interest, for the
construction of the golf course. Within the period to file a responsive
pleading, PTA filed a motion for extension of time to file an answer.
On October 30, 2003, the RTC granted the motion for extension of time.
PTA filed another motion for extension of time to file an answer. The RTC
again granted the motion.
Despite the RTCs liberality of granting two successive motions for
extension of time, PTA failed to answer the complaint. Hence, on April 6,
2004, the RTC rendered a judgment of default, ruling as follows:
WHEREFORE, judgment is hereby rendered, ordering the defendant to
pay plaintiff:
1. The amount of Eleven Million, Eight Hundred Twenty
Thousand, Five Hundred Fifty Pesos and Fifty Three Centavos
(P11,820,550.53), representing defendants outstanding
obligation, plus interest thereon of twelve percent (12%) per
annum from the time the unpaid billings of plaintiff were due for
payment by the defendant, until they are fully paid.
2. The amount of Two Hundred Thousand Pesos (P200,000.00),
as attorneys fees.
3. The amount of One Hundred Twenty Eight Thousand, Five
Hundred Twenty Nine Pesos and Fourteen Centavos
(P128,529.14), as filing fees and other costs of litigation.
4. The amount of Three Hundred Thousand Pesos
(P300,000.00), as moral damages.
5. The amount of One Hundred Fifty Thousand (Pesos
(P150,000.00), as nominal damages, and
6. The amount of Two Hundred Fifty Thousand Pesos
(P250,000.00), as exemplary damages.
SO ORDERED.4
On July 11, 2005, PTA seasonably appealed the case to the CA. But
before the appeal of PTA could be perfected, PHILGOLF already filed a
motion for execution pending appeal with the RTC. The RTC, in an Order
dated June 2, 2004, granted the motion and a writ of execution pending
appeal was issued against PTA. On June 3, 2004, a notice of
garnishment was issued against PTAs bank account at the Land Bank of
the Philippines, NAIA-BOC Branch to fully satisfy the judgment.
PTA filed a petition for certiorari with the CA, imputing grave abuse of
discretion on the part of the RTC for granting the motion for execution
pending appeal. The CA ruled in favor of PTA and set aside the order
granting the motion for execution pending appeal.
On July 11, 2005, PTA withdrew its appeal of the RTC decision and,
instead, filed a petition5 for annulment of judgment under Rule 47 of the
Rules of Court. The petition for annulment of judgment was premised on
the argument that the gross negligence of PTAs counsel prevented the
presentation of evidence before the RTC.
On December 13, 2006, the CA dismissed the petition for annulment of
judgment for lack of merit. PTA questions this CA action in the present
petition for certiorari.
THE PETITION
The petition cites three arguments: first, that the negligence of PTAs
counsel amounted to an extrinsic fraud warranting an annulment of
judgment; second, that since PTA is a government entity, it should not be
bound by the inactions or negligence of its counsel; and third, that there
were no other available remedies left for PTA but a petition for annulment
of judgment.
OUR RULING
We find the petition unmeritorious.
The Rules of Court specifically provides for deadlines in actions before
the court to ensure an orderly disposition of cases. PTA cannot escape
these legal technicalities by simply invoking the negligence of its counsel.
This practice, if allowed, would defeat the purpose of the Rules on
periods since every party would merely lay the blame on its counsel to
avoid any liability. The rule is that "a client is bound by the acts, even
mistakes, of his counsel in the realm of procedural technique[,]and unless
such acts involve gross negligence that the claiming party can prove, the
acts of a counsel bind the client as if it had been the latters acts."6
In LBC Express - Metro Manila, Inc. v. Mateo, 7 the Court held that "[g]ross
negligence is characterized by want of even slight care, acting or omitting
to act in a situation where there is a duty to act, not inadvertently but
willfully and intentionally with a conscious indifference to consequences
insofar as other persons may be affected." This cannot be invoked in
cases where the counsel is merely negligent in submitting his required
pleadings within the period that the rules mandate.
It is not disputed that the summons together with a copy of the complaint
was personally served upon, and received by PTA through its Corporate
Legal Services Department, on October 10, 2003. 8 Thus, in failing to
submit a responsive pleading within the required time despite sufficient
notice, the RTC was correct in declaring PTA in default.
There was no extrinsic fraud
"Extrinsic fraud refers to any fraudulent act of the prevailing party in the
litigation which is committed outside of the trial of the case, whereby the
unsuccessful party has been prevented from exhibiting fully his case, by
fraud or deception practiced on him by his opponent." 9 Under the doctrine
of this cited case, we do not see the acts of PTAs counsel to be
constitutive of extrinsic fraud.
The records reveal that the judgment of default10 was sent via registered
mail to PTAs counsel. However, PTA never availed of the remedy of a
motion to lift the order of default. 11 Since the failure of PTA to present its
evidence was not a product of any fraudulent acts committed outside
trial, the RTC did not err in declaring PTA in default.
Annulment of judgment is not the proper remedy
PTAs appropriate remedy was only to appeal the RTC decision.
"Annulment of Judgment under Rule 47 of the Rules of Court is a
recourse equitable in character and allowed only in exceptional cases
where the ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available through no fault of
petitioner."12
In this case, appeal was an available remedy. There was also no
extraordinary reason for a petition for annulment of judgment, nor was
there any adequate explanation on why the remedy for new trial or
petition for relief could not be used. The Court is actually at a loss why
PTA had withdrawn a properly filed appeal and substituted it with another
petition, when PTA could have merely raised the same issues through an
ordinary appeal.
PTA was acting in a proprietary character
PTA also erred in invoking state immunity simply because it is a
government entity. The application of state immunity is proper only when
the proceedings arise out of sovereign transactions and not in cases of
commercial activities or economic affairs. The State, in entering into a
business contract, descends to the level of an individual and is deemed
to have tacitly given its consent to be sued.13
Since the Intramuros Golf Course Expansion Projects partakes of a
proprietary character entered into between PTA and PHILGOLF, PTA
cannot avoid its financial liability by merely invoking immunity from suit.
is a petition for certiorari under Rule 65 of the said Rules. [emphases
supplied; citations omitted]
In sum, PTA had the remedy of appealing the RTC decision to the CA
and, thereafter, to us. Under the circumstances, we find no adequate
reason to justify the elevation of this case to the CA and then to us, under
Rule 65 of the Rules of Court.
WHEREFORE, premises considered, we hereby DISMISS the petition for
certiorari. No costs.

A special civil action for certiorari under Rule 65 is proper only when SO ORDERED.
there is no other plain, speedy, and adequate remedy
ARTURO D. BRION
Lastly, a special civil action under Rule 65 of the Rules of Court is only Associate Justice
available in cases when a tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law. It is not a mode of appeal, and
cannot also be made as a substitute for appeal. It will not lie in cases
where other remedies are available under the law. 1wphi1

In Land Bank of the Philippines v. Court of Appeals,14 the Court had the
occasion to state:

The general rule is that a [certiorari] will not issue where the remedy of
appeal is available to the aggrieved party. The remedies of appeal in the
ordinary course of law and that of certiorari under Rule 65 of the Revised
Rules of Court are mutually exclusive and not alternative or cumulative.
Hence, the special civil action for certiorari under Rule 65 is not and
cannot be a substitute for an appeal, where the latter remedy is available.
xxx

xxxx

The proper recourse of the aggrieved party from a decision of the CA is a

petition for review on certiorari under Rule 45 of the Revised Rules of
Court. On the other hand, if the error subject of the recourse is one of
jurisdiction, or the act complained of was perpetrated by a quasi-judicial
officer or agency with grave abuse of discretion amounting to lack or
excess of jurisdiction, the proper remedy available to the aggrieved party
G.R. No. 187188 June 27, 2012
SALVADOR O. MOJAR, EDGAR B. BEGONIA, Heirs of the late JOSE
M. CORTEZ, RESTITUTO GADDI, VIRGILIO M. MONANA, FREDDIE
RANCES, and EDSON D. TOMAS, Petitioners,
vs.
AGRO COMMERCIAL SECURITY SERVICE AGENCY, INC., et
al.,1 Respondents.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking to annul the entire proceedings before the Court of
Appeals (CA) in CA-G.R. SP No. 102201, in which it issued its Decision
dated 21 July 2008 and Resolution dated 16 March 2009. 2
Statement of Facts and of the Case
Petitioners were employed as security guards by respondent and
assigned to the various branches of the Bank of Commerce in
Pangasinan, La Union and Ilocos Sur.
In separate Office Orders dated 23 and 24 May 2002, petitioners were
relieved from their respective posts and directed to report to their new
assignments in Metro Manila effective 3 June 2002. They, however, failed
to report for duty in their new assignments, prompting respondent to send
them a letter dated 18 June 2002. It required a written explanation why
no disciplinary action should be taken against them, but the letter was not
heeded.
On 15 February 2005, petitioners filed a Complaint for illegal dismissal
against respondent and the Bank of Commerce, Dagupan Branch, before
the National Labor Relations Commission (NLRC). Petitioners claimed,
among others, that their reassignment was a scheme to sever the
employer-employee relationship and was done in retaliation for their
pressing their claim for salary differential, which they had earlier filed
against respondent and the Bank of Commerce before the NLRC. They
also contended that the transfer to Manila was inconvenient and
prejudicial, since they would incur additional expenses for board and
lodging.
On 22 May 2006, the Labor Arbiter (LA) rendered a Decision 3 finding that
petitioners were illegally dismissed. The dispositive portion reads:
WHEREFORE, premises considered, judgment is hereby rendered
ordering respondents to reinstate all the complainants to their former
assignment in Pangasinan with full backwages and if reinstatement is no
longer possible, to pay separation pay of one month for every year of
service each of the seven complainant security guards. (A detailed
computation of the judgment award is attached as Annex "A.") 4 (Italicized
in the original)
On appeal, the NLRC affirmed the LAs ruling, with the modification that
the Complaint against the Bank of Commerce was dismissed. 5 The
dispositive portion provides:
WHEREFORE, premises considered, the appeal of Agro Commercial
Security Service Agency, Inc. is hereby DISMISSED for lack of merit. The
Appeal of Bank of Commerce is GRANTED for being impressed with
merit. Accordingly, judgment is hereby rendered MODIFYING the
Decision of the Labor Arbiter dated May 22, 2006 by DISMISSING the
complaint against Bank of Commerce-Dagupan. All other dispositions of
the Labor Arbiter not so modified, STAYS.6
On 23 January 2008, respondent filed a Motion for Extension to file a
Petition for Certiorari before the CA. In a Resolution dated 20 February
2008, the latter granted the Motion for Extension, allowing respondent
until 10 February 2008 within which to file its Petition. On 9 February
2008, respondent filed its Petition for Certiorari before the appellate court.
On 30 June 2008, the CA issued a Resolution noting that no comment on
the Petition had been filed, and stating that the case was now deemed
submitted for resolution.
On 21 July 2008, the CA rendered its Decision. Finding merit in the
Petition, it found the Orders transferring petitioners to Manila to be a valid
exercise of management prerogative. The records were bereft of any
showing that the subject transfer involved a diminution of rank or salaries.
Further, there was no showing of bad faith or ill motive on the part of the
employer. Thus, petitioners refusal to comply with the transfer orders
constituted willful disobedience of a lawful order of an employer and
abandonment, which were just causes for termination under the Labor
Code. However, respondent failed to observe the due process
requirements in terminating them. The dispositive portion of the CA
Decision provides:
WHEREFORE, premises considered, the instant petition is GRANTED.
The assailed Decision and Resolution of the NLRC dated July 31, 2007
and October 31, 2007[,] respectively, in NLRC NCR CA No. 046036-05
are REVERSED and SET ASIDE. The complaints of private respondents
for illegal dismissal are hereby DISMISSED. However, petitioner is
ordered to pay private respondents the sum of P 10,000.00 each for
having violated the latters right to statutory due process.7
On 1 August 2008, petitioner Mojar filed a Manifestation8 before the CA,
stating that he and the other petitioners had not been served a copy of
the CA Petition. He also said that they were not aware whether their
counsel before the NLRC, Atty. Jose C. Espinas, was served a copy
thereof, since the latter had already been bedridden since December
2007 until his demise on "25 February 2008."9 Neither could their new
counsel, Atty. Mario G. Aglipay, enter his appearance before the CA, as
petitioners failed to "get [the] folder from the office of Atty. Espinas, as the
folder can no longer be found."10
Thereafter, petitioners filed a Motion to Annul Proceedings 11 dated 9
September 2008 before the CA. They moved to annul the proceedings on
the ground of lack of jurisdiction. They argued that the NLRC Decision
had already attained finality, since the Petition before the CA was
belatedly filed, and the signatory to the Certification of non-forum
shopping lacked the proper authority.
In a Resolution dated 16 March 2009, the CA denied the Motion to Annul
Proceedings.
Hence, this Petition.
The Petition raised the following arguments: (1) There was no proof of
service attached to the Motion for Extension to file a Petition for Certiorari
before the CA; thus, both the Motion and the Petition were mere scraps
of paper. (2) Respondent purposely intended to exclude petitioners from
the proceedings before the CA by omitting their actual addresses in the
CA Petition, a mandatory requirement under Section 3, Rule 46; in
relation to Section 1, Rule 65 of the Rules of Court. Further, respondent
failed to prove the valid service of its CA Petition upon petitioners former
counsel of record. (3) The CA was grossly ignorant of the law in ignoring
jurisprudence, which states that when the floating status of an employee
lasts for more than six months, the latter may be considered to have
been constructively dismissed.
On 3 September 2009, respondent filed its Comment on the Petition,
pursuant to this Courts 29 June 2009 Resolution. In its Comment, it
argued that the CA Decision had already become final and executory,
inasmuch as the Motion to Annul Proceedings, a procedural approach not
provided for in the Rules, was filed some 44 days after the service of the
CA Decision on the counsel for petitioners. Further, Atty. Aglipay had then
no legal standing to appear as counsel, considering that there was still no
substitution of counsel at the time he filed the Motion to Annul
Proceedings. In any case, petitioners are bound by the actions of their
counsel, Atty. Espinas.
On 1 March 2010, this Court issued a Resolution requiring petitioners to
file their reply, which petitioners complied with on 26 April 2010. In their
Reply, petitioners state among others that the records of the CA case
showed that there was a deliberate violation of their right to due process.
The CA Petition did not contain the required affidavit of service, which
alone should have caused the motu proprio dismissal thereof. Further,
the instant Petition before this Court is an appropriate mode to contest
the CA Decision and Resolution, which petitioners contend are void
judgments. They also argue that there is no rule on the clients
substitution in case of the death of counsel. Instead, the reglementary
period to file pleadings in that case must be suspended and made more
lenient, considering that the duty of substitution is transferred to a non-
lawyer.
On 30 March 2011, respondent filed a Motion for Early Resolution of the
case. Petitioners likewise filed a Motion for Leave (For the Admission of
the Instant Comment on Private Respondents Motion for Early
Resolution), stating that they were joining respondent in moving for the
early resolution of the case.
This Court will resolve the issues raised in seriatim.
Actual Addresses of Parties
Petitioners contend that the CA should not have taken cognizance of the
Petition before it, as their actual addresses were not indicated therein as
required under Section 3, Rule 4612 of the Rules of Court, and pursuant to
Cendaa v. Avila.13 In the 2008 case Cendaa, this Court ruled that the
requirement that a petition for certiorari must contain the actual
addresses of all the petitioners and the respondents is mandatory. The
failure to comply with that requirement is a sufficient ground for the
dismissal of a petition.
This rule, however, is not absolute. In the 2011 case Santos v. Litton Mills
Incorporated,14 this Court ruled that where the petitioner clearly
mentioned that the parties may be served with the courts notices or
processes through their respective counsels, whose addresses have
been clearly specified as in this case, this act would constitute substantial
compliance with the requirements of Section 3, Rule 46. The Court
further observed that the notice required by law is notice to counsel if the
party has already appeared by counsel, pursuant to Section 2, Rule 13 of
the Rules of Court.
In its Petition before the CA, respondent clearly indicated the following:
THE PARTIES
2.0. The petitioner AGRO COMMERCIAL SECURITY SERVICE
AGENCY, INC. (hereafter petitioner AGRO), is a corporation existing
under Philippine laws, and may be served with process thru counsel, at
his address hereunder indicated; private respondents (1) SALVADOR O.
MOJAR; (2) EDGAR B. BEGONIA; (3) JOSE M. CORTEZ; (4) FREDDIE
RANCES; (5) VIRGILIO MONANA; (6) RESTITUTU [sic] GADDI; and, (7)
EDSON D. TOMAS, are all of age, and during the material period, were
in the employ of petitioner AGRO as security guards; said respondents
may be served with process thru their common counsel, ATTY. JOSE C.
ESPINAS at No. 51 Scout Tuazon, Quezon City; on the other hand,
respondent National Labor Relations Commission, 1st Division, Quezon
City, is the agency having jurisdiction over labor disputes in the
Philippines and may be served with process at offices in Quezon City; 15
The foregoing may thus be considered as substantial compliance with
Section 3, Rule 46. In any case, and as will be discussed further below,
the CA had sufficient reason to take cognizance of the Petition.
Affidavit of Service
Section 3, Rule 46 provides that the petition for certiorari should be filed
together with the proof of service thereof on the respondent. Under
Section 13, Rule 13 of the Rules of Court, if service is made by registered
mail, as in this case, proof shall be made by an affidavit of the person
mailing and the registry receipt issued by the mailing office. Section 3,
Rule 46 further provides that the failure to comply with any of the
requirements shall be sufficient ground for the dismissal of the petition.
Petitioners allege that no affidavit of service was attached to the CA
Petition. Neither is there any in the copy of the CA Petition attached to
the instant Petition. In its Comment, respondent claims that petitioners
through their counsel, Atty. Aglipay can be charged with knowledge of
the pendency of the CA Petition. It says that on April 2008, Atty. Aglipay
filed before the NLRC an Entry of Appearance and Motion for Execution
Pending Appeal.16However, petitioners merely indicated therein that they
were "respectfully mov[ing] for the execution pending appeal of the Labor
Arbiters decision dated 22 May 2006 affirmed by the NLRC." 17 There was
no indication that they had been served a copy of the CA Petition. No
other proof was presented by respondent to show petitioners actual
receipt of the CA Petition. In any case, this knowledge, even if presumed,
would not and could not take the place of actual service and proof of
service by respondent.
In Ferrer v. Villanueva,18 petitioner therein failed to append the proof of
service to his Petition for Certiorari. Holding that this failure was a fatal
defect, the Court stated:
There is no question that petitioner herein was remiss in complying with
the foregoing Rule. In Cruz v. Court of Appeals, we ruled that with respect
to motions, proof of service is a mandatory requirement. We find no
cogent reason why this dictum should not apply and with more reason to
a petition for certiorari, in view of Section 3, Rule 46 which requires that
the petition shall be filed "together with proof of service thereof." We
agree with the Court of Appeals that the lack of proof of service is a fatal
defect. The utter disregard of the Rule cannot be justified by harking to
substantial justice and the policy of liberal construction of the Rules.
Technical rules of procedure are not meant to frustrate the ends of
justice. Rather, they serve to effect the proper and orderly disposition of
cases and thus effectively prevent the clogging of court dockets.
(Emphasis in the original)
Indeed, while an affidavit of service is required merely as proof that
service has been made on the other party, it is nonetheless essential to
due process and the orderly administration of justice. 19
Be that as it may, it does not escape the attention of this Court that in the
CA Resolution dated 16 March 2009, the appellate court stated that their
records revealed that Atty. Espinas, petitioners counsel of record at the
time, was duly served a copy of the following: CA Resolution dated 20
February 2008 granting respondents Motion for Extension of Time to file
the CA Petition; CA Resolution dated 24 April 2008 requiring petitioners
to file their Comment on the CA Petition; and CA Resolution dated 30
June 2008, submitting the case for resolution, as no comment was filed.
Such service to Atty. Espinas, as petitioners counsel of record, was valid
despite the fact he was already deceased at the time. If a party to a case
has appeared by counsel, service of pleadings and judgments shall be
made upon his counsel or one of them, unless service upon the party is
specifically ordered by the court. It is not the duty of the courts to inquire,
during the progress of a case, whether the law firm or partnership
representing one of the litigants continues to exist lawfully, whether the
partners are still alive, or whether its associates are still connected with
the firm.20
It is the duty of party-litigants to be in contact with their counsel from time
to time in order to be informed of the progress of their case. It is likewise
the duty of parties to inform the court of the fact of their counsels
death.21Their failure to do so means that they have been negligent in the
protection of their cause.22 They cannot pass the blame to the court,
which is not tasked to monitor the changes in the circumstances of the
parties and their counsel.
Substitution of Counsel
Petitioners claim that Atty. Espinas passed away on 8 February 2008.
They further claim that he was already bedridden as early as December
2007, and thus they "failed to get any information whether [he] was
served with a copy of the [CA Petition]."23
Petitioners were negligent in the conduct of their litigation. Having known
that Atty. Espinas was already bedridden as early as December 2007,
they should have already obtained new counsel who could adequately
represent their interests. The excuse that Atty. Aglipay could not enter his
appearance before the CA "because [petitioners] failed to get [their] folder
from the office of Atty. Espinas"24 is flimsy at best.
The requirements for a valid substitution of counsel have been
jurisprudentially settled in this wise:
Under Section 26, Rule 138 of the Rules of Court and established
jurisprudence, a valid substitution of counsel has the following
requirements: (1) the filing of a written application for substitution; (2) the
client's written consent; (3) the consent of the substituted lawyer if such
consent can be obtained; and, in case such written consent cannot be
procured, (4) a proof of service of notice of such motion on the attorney
to be substituted in the manner required by the Rules. Where death of
the previous attorney is the cause of substitution of the counsel, a verified
proof of the death of such attorney (usually a death certificate) must
accompany the notice of appearance of the new counsel. 25
The fact that petitioners were unable to obtain their folder from Atty.
Espinas is immaterial. Proof of service upon the lawyer to be substituted
will suffice where the lawyers consent cannot be obtained. With respect
to the records of the case, these may easily be reconstituted by obtaining
copies thereof from the various courts involved.
Petitioners allegedly went to the CA sometime prior to 31 July 2008, or
the date of filing of their Manifestation before the CA, to inquire about the
status of their case. Allegedly, they "always visited the Court of Appeals
for [the] development of their case."26 It is doubtful that a person who
regularly follows up the status of his case before a court would not be
told, first, that a petition has been filed against him; and, second, that the
courts resolutions have been sent to his counsel. It is questionable why,
knowing these matters, petitioners did not seek the replacement of their
counsel, if the latter was unable to pursue their case. Further, despite
their manifestation that, sometime prior to 31 July 2008, they were
already aware that the case had been submitted for resolution, they still
waited until 9 September 2008 or until they allegedly had knowledge of
the CA Decision before they filed the Motion to Annul Proceedings.
In Ampo v. Court of Appeals,27 this Court explained the vigilance that must
be exercised by a party:
We are not persuaded by petitioners argument that he was not aware
that his counsel had died or that an adverse judgment had already been
rendered until he received the notice of promulgation from the RTC of
Butuan City on April 20, 2005. Time and again we have stated that equity
aids the vigilant, not those who slumber on their rights. Petitioner should
have taken it upon himself to periodically keep in touch with his counsel,
check with the court, and inquire about the status of the case. Had
petitioner been more prudent, he would have found out sooner about the
death of his counsel and would have taken the necessary steps to
prevent his present predicament.
 xxx xxx xxx
Litigants who are represented by counsel should not expect that all they
need to do is sit back, relax and await the outcome of their cases. Relief
will not be granted to a party who seeks avoidance from the effects of the
judgment when the loss of the remedy at law was due to his own
negligence. The circumstances of this case plainly show that petitioner
only has himself to blame. Neither can he invoke due process. The
essence of due process is simply an opportunity to be heard. Due
process is satisfied when the parties are afforded a fair and reasonable
opportunity to explain their respective sides of the controversy. Where a
party, such as petitioner, was afforded this opportunity to participate but
failed to do so, he cannot complain of deprivation of due process. If said
opportunity is not availed of, it is deemed waived or forfeited without
violating the constitutional guarantee.
In this case, petitioners must bear the fruits of their negligence in the
handling of their case. They may not decry the denial of due process,
when they were indeed afforded the right to be heard in the first place.
Substantive Issue: Illegal Dismissal
and their agency. Employees have the right to security of tenure, but this
does not give them such a vested right to their positions as would deprive
the company of its prerogative to change their assignment or transfer
them where their services, as security guards, will be most beneficial to
the client.30
An employer has the right to transfer or assign its employees from one
office or area of operation to another in pursuit of its legitimate business
interest, provided there is no demotion in rank or diminution of salary,
benefits, and other privileges; and the transfer is not motivated by
discrimination or bad faith, or effected as a form of punishment or
demotion without sufficient cause.31
While petitioners may claim that their transfer to Manila will cause added
expenses and inconvenience, we agree with the CA that, absent any
showing of bad faith or ill motive on the part of the employer, the transfer
remains valid.
WHEREFORE, the Petition is DENIED. The Court of Appeals Decision
dated 21 July 2008 and Resolution dated 16 March 2009 in CA-G.R. SP
No. 102201 are hereby AFFIRMED.

Petitioners argue that they were illegally dismissed, based on the 1989 SO ORDERED.
case Agro Commercial Security Services Agency, Inc. v. NLRC.,28 which
holds that when the floating status of employees lasts for more than six MARIA LOURDES P. A. SERENO
(6) months, they may be considered to have been illegally dismissed Associate Justice
from the service.

Unfortunately, the above-mentioned case is not applicable here. In Agro,

the service contracts of the security agency therein with various
corporations and government agencies to which the security guards
were previously assigned were terminated, generally due to the
sequestration of the said offices. Accordingly, many of the security guards
were placed on floating status. "Floating status" means an indefinite
period of time when one does not receive any salary or financial benefit
provided by law.29 In this case, petitioners were actually reassigned to
new posts, albeit in a different location from where they resided. Thus,
there can be no floating status or indefinite period to speak of. Instead,
petitioners were the ones who refused to report for work in their new
assignment.

In cases involving security guards, a relief and transfer order in itself

does not sever the employment relationship between the security guards
G.R. No. 183035 January 9, 2013
OPTIMA REALTY CORPORATION, Petitioner,
vs.
HERTZ PHIL. EXCLUSIVE CARS, INC., Respondent.
DECISION
SERENO, CJ.:
Before us is a Rule 45 Petition assailing the Decision and Resolution of
1 2
the Court of Appeals (CA) in CA-GR SP No. 99890, which reversed the
Decision3 and Resolution4 of the Regional Trial Court (RTC), Branch 13 7,
Makati City in Civil Case No. 06-672. The RTC had affirmed in toto the 22
May 2006 Decision5 of the Metropolitan Trial Court (MeTC), Branch 64,
Makati City in Civil Case No. 90842 evicting respondent Hertz Phil.
Exclusive Cars, Inc. (Hertz) and ordering it to pay back rentals and other
arrearages to petitioner Optima Realty Corporation (Optima).
Optima is engaged in the business of leasing and renting out commercial
spaces and buildings to its tenants. On 12 December 2002, it entered
into a Contract of Lease with respondent over a 131-square-meter office
unit and a parking slot in the Optima Building for a period of three years
commencing on 1 March 2003 and ending on 28 February 2006. 6 On 9
March 2004, the parties amended their lease agreement by shortening
the lease period to two years and five months, commencing on 1 October
2003 and ending on 28 February 2006. 7
Renovations in the Optima Building commenced in January and ended in
November 2005.8 As a result, Hertz alleged that it experienced a 50%
drop in monthly sales and a significant decrease in its personnels
productivity. It then requested a 50% discount on its rent for the months
of May, June, July and August 2005. 9
On 8 December 2005, Optima granted the request of Hertz. 10 However,
the latter still failed to pay its rentals for the months of August to
December of 2005 and January to February 2006,11 or a total of seven
months. In addition, Hertz likewise failed to pay its utility bills for the
months of November and December of 2005 and January and February
of 2006,12 or a total of four months.
On 8 December 2005, Optima wrote another letter to Hertz, 13 reminding
the latter that the Contract of Lease could be renewed only by a new
negotiation between the parties and upon written notice by the lessee to
the lessor at least 90 days prior to the termination of the lease
period.14 As no letter was received from Hertz regarding its intention to
seek negotiation and extension of the lease contract within the 90-day
period, Optima informed it that the lease would expire on 28 February
2006 and would not be renewed.15
On 21 December 2005, Hertz wrote a letter belatedly advising Optima of
the formers desire to negotiate and extend the lease. 16 However, as the
Contract of Lease provided that the notice to negotiate its renewal must
be given by the lessee at least 90 days prior to the expiration of the
contract, petitioner no longer entertained respondents notice.
On 30 January 2006, Hertz filed a Complaint for Specific Performance,
Injunction and Damages and/or Sum of Money with prayer for the
issuance of a Temporary Restraining Order (TRO) and Writ of Preliminary
Injunction (Complaint for Specific Performance) against Optima. In that
Complaint, Hertz prayed for the issuance of a TRO to enjoin petitioner
from committing acts that would tend to disrupt respondents peaceful
use and possession of the leased premises; for a Writ of Preliminary
Injunction ordering petitioner to reconnect its utilities; for petitioner to be
ordered to renegotiate a renewal of the Contract of Lease; and for actual,
moral and exemplary damages, as well as attorneys fees and costs.
On 1 March 2006, Optima, through counsel, wrote Hertz a letter requiring
the latter to surrender and vacate the leased premises in view of the
expiration of the Contract of Lease on 28 February 2006. 17 It likewise
demanded payment of the sum of 420,967.28 in rental arrearages,
unpaid utility bills and other charges.18 Hertz, however, refused to vacate
the leased premises.19 As a result, Optima was constrained to file before
the MeTC a Complaint for Unlawful Detainer and Damages with Prayer
for the Issuance of a TRO and/or Preliminary Mandatory Injunction
(Unlawful Detainer Complaint) against Hertz.20
On 14 March 2006, Summons for the Unlawful Detainer Complaint was
served on Henry Bobiles, quality control supervisor of Hertz, who
complied with the telephone instruction of manager Rudy Tirador to
receive the Summons.21
On 28 March 2006, or 14 days after service of the Summons, Hertz filed
a Motion for Leave of Court to file Answer with Counterclaim and to Admit
Answer with Counterclaim (Motion for Leave to File Answer). 22 In that
Motion, Hertz stated that, "in spite of the defective service of summons, it
opted to file the instant Answer with Counterclaim with Leave of
Court."23 In the same Motion, it likewise prayed that, in the interest of
substantial justice, the Answer with Counterclaim attached to the Motion
for Leave to File Answer should be admitted regardless of its belated
filing, since the service of summons was defective. 24
On 22 May 2006, the MeTC rendered a Decision,25 ruling that petitioner
Optima had established its right to evict Hertz from the subject premises
due to nonpayment of rentals and the expiration of the period of
lease.26 The dispositive portion of the Decision reads:
WHEREFORE, premises considered, the Court hereby renders judgment
for the plaintiff and against the defendant, ordering:
1. the defendant corporation and all persons claiming rights from
it to immediately vacate the leased premises and to surrender
possession thereof to the plaintiff;
2. the defendant corporation to pay the plaintiff the amount of
Four Hundred Twenty Thousand Nine Hundred Sixty Seven
Pesos and 28/100 (P420,967.28) representing its rentals
arrearages and utility charges for the period of August 2005 to
February 2006, deducting therefrom defendants security deposit;
3. the defendant corporation to pay the amount of Fifty Four
Thousand Two Hundred Pesos (P54,200.00) as a reasonable
monthly compensation for the use and occupancy of the premises
starting from March 2006 until possession thereof is restored to
the plaintiff; and
4. the defendant corporation to pay the amount of Thirty
Thousand Pesos (P30,000.00) as and for attorneys fees; and
5. the cost of suit.
SO ORDERED.27
Hertz appealed the MeTCs Decision to the RTC.28
Finding no compelling reason to warrant the reversal of the MeTCs
Decision, the RTC affirmed it by dismissing the appeal in a
Decision29 dated 16 March 2007.
On 18 June 2007, the RTC denied respondents Motion for
Reconsideration of its assailed Decision. 30
Hertz thereafter filed a verified Rule 42 Petition for Review on Certiorari
with the CA.31
On appeal, the CA ruled that, due to the improper service of summons,
the MeTC failed to acquire jurisdiction over the person of respondent
Hertz. The appellate court thereafter reversed the RTC and remanded
the case to the MeTC to ensure the proper service of summons.
Accordingly, the CA issued its 17 March 2008 Decision, the fallo of which
reads:
WHEREFORE, premises considered, the May 22, 2006 Decision of the
Metropolitan Trial Court of Makati City, Branch 64, in Civil Case No.
90842, and both the March 16, 2007 Decision, as well as the June 18,
2007 Resolution, of the Regional Trial Court of Makati City, Branch 137,
in Civil Case No. 06-672, are hereby REVERSED, ANNULLED and SET
ASIDE due to lack of jurisdiction over the person of the defendant
corporation HERTZ. This case is hereby REMANDED to the Metropolitan
Trial Court of Makati City, Branch 64, in Civil Case No. 90842, which is
DIRECTED to ensure that its Sheriff properly serve summons to only
those persons listed in Sec. 11, Rule 14 of the Rules of Civil Procedure in
order that the MTC could acquire jurisdiction over the person of the
defendant corporation HERTZ.
SO ORDERED.32
Petitioners Motion for Reconsideration of the CAs Decision was denied
in a Resolution dated 20 May 2008. 33
Aggrieved by the ruling of the appellate court, petitioner then filed the
instant Rule 45 Petition for Review on Certiorari with this Court. 34
THE ISSUES
As culled from the records, the following issues are submitted for
resolution by this Court:
 1. Whether the MeTC properly acquired jurisdiction over the
person of respondent Hertz;
2. Whether the unlawful detainer case is barred by litis pendentia;
and
3. Whether the ejectment of Hertz and the award of damages,
attorneys fees and costs are proper.
THE COURTS RULING
We grant the Petition and reverse the assailed Decision and Resolution
of the appellate court.
I
The MeTC acquired jurisdiction over the person of respondent Hertz.
In civil cases, jurisdiction over the person of the defendant may be
acquired either by service of summons or by the defendants voluntary
appearance in court and submission to its authority.35
In this case, the MeTC acquired jurisdiction over the person of
respondent Hertz by reason of the latters voluntary appearance in court.
In Philippine Commercial International Bank v. Spouses Dy,36 we had
occasion to state:
Preliminarily, jurisdiction over the defendant in a civil case is acquired
either by the coercive power of legal processes exerted over his person,
or his voluntary appearance in court. As a general proposition, one who
seeks an affirmative relief is deemed to have submitted to the jurisdiction
of the court. It is by reason of this rule that we have had occasion to
declare that the filing of motions to admit answer, for additional time to file
answer, for reconsideration of a default judgment, and to lift order of
default with motion for reconsideration, is considered voluntary
submission to the court's jurisdiction. This, however, is tempered by the
concept of conditional appearance, such that a party who makes a
special appearance to challenge, among others, the court's jurisdiction
over his person cannot be considered to have submitted to its authority.
Prescinding from the foregoing, it is thus clear that:
(1) Special appearance operates as an exception to the general
rule on voluntary appearance;
(2) Accordingly, objections to the jurisdiction of the court over the
person of the defendant must be explicitly made, i.e., set forth in
an unequivocal manner; and
(3) Failure to do so constitutes voluntary submission to the
jurisdiction of the court, especially in instances where a pleading
or motion seeking affirmative relief is filed and submitted to the
court for resolution. (Emphases supplied)
In this case, the records show that the following statement appeared in
respondents Motion for Leave to File Answer:
In spite of the defective service of summons, the defendant opted to file
the instant Answer with Counterclaim with Leave of Court, upon inquiring
from the office of the clerk of court of this Honorable Court and due to its
notice of hearing on March 29, 2005 application for TRO/Preliminary
Mandatory Injunction was received on March 26, 2006. (Emphasis
supplied)37
Furthermore, the Answer with Counterclaim filed by Hertz never raised
the defense of improper service of summons. The defenses that it
pleaded were limited to litis pendentia, pari delicto, performance of its
obligations and lack of cause of action.38 Finally, it even asserted its own
counterclaim against Optima.39
Measured against the standards in Philippine Commercial International
Bank, these actions lead to no other conclusion than that Hertz
voluntarily appeared before the court a quo. We therefore rule that, by
virtue of the voluntary appearance of respondent Hertz before the MeTC,
the trial court acquired jurisdiction over respondents.
II
The instant ejectment case is not barred by litis pendentia. Hertz
contends that the instant case is barred by litis pendentia because of the
pendency of its Complaint for Specific Performance against Optima
before the RTC.
We disagree.
Litis pendentia requires the concurrence of the following elements:
(1) Identity of parties, or at least their representation of the same
interests in both actions;
(2) Identity of rights asserted and reliefs prayed for, the relief
being founded on the same facts; and
(3) Identity with respect to the two preceding particulars in the two
cases, such that any judgment that may be rendered in the
pending case, regardless of which party is successful, would
amount to res judicata in the other case.40
Here, while there is identity of parties in both cases, we find that the
rights asserted and the reliefs prayed for under the Complaint for Specific
Performance and those under the present Unlawful Detainer Complaint
are different. As aptly found by the trial court:
The Complaint for Specific Performance] seeks to compel plaintiff-
appellee Optima to: (1) renegotiate the contract of lease; (2) reconnect
the utilities at the leased premises; and (3) pay damages. On the other
hand, the unlawful detainer case sought the ejectment of defendant-
appellant Hertz from the leased premises and to collect arrears in rentals
and utility bills.41
As the rights asserted and the reliefs sought in the two cases are
different, we find that the pendency of the Complaint for Specific
Performance is not a bar to the institution of the present case for
ejectment.
III
The eviction of respondent and the award of damages,
attorneys fees and costs were proper.
We find that the RTCs ruling upholding the ejectment of Hertz from the
building premises was proper. First, respondent failed to pay rental
arrearages and utility bills to Optima; and, second, the Contract of Lease
expired without any request from Hertz for a renegotiation thereof at least
90 days prior to its expiration.
On the first ground, the records show that Hertz failed to pay rental
arrearages and utility bills to Optima. Failure to pay timely rentals and
utility charges is an event of default under the Contract of
Lease,42 entitling the lessor to terminate the lease.
Moreover, the failure of Hertz to pay timely rentals and utility charges
entitles the lessor to judicially eject it under the provisions of the Civil
Code.43
On the second ground, the records likewise show that the lease had
already expired on 28 February 2006 because of Hertzs failure to
request a renegotiation at least 90 days prior to the termination of the
lease period.
The pertinent provision of the Contract of Lease reads:
x x x. The lease can be renewed only by a new negotiation between the
parties upon written notice by the LESSEE to be given to the LESSOR at
least 90 days prior to termination of the above lease period. 44
As the lease was set to expire on 28 February 2006, Hertz had until 30
November 2005 within which to express its interest in negotiating an
extension of the lease with Optima. However, Hertz failed to
communicate its intention to negotiate for an extension of the lease within
the time agreed upon by the parties. Thus, by its own provisions, the
Contract of Lease expired on 28 February 2006. 1wphi1
Under the Civil Code, the expiry of the period agreed upon by the parties
is likewise a ground for judicial ejectment. 45
As to the award of monthly compensation, we find that Hertz should pay
adequate compensation to Optima, since the former continued to occupy
the leased premises even after the expiration of the lease contract. As
the lease price during the effectivity of the lease contract was P54,200
per month, we find it to be a reasonable award.
Finally, we uphold the award of attorney's fees in the amount of P30,000
and judicial costs in the light of Hertz's unjustifiable and unlawful retention
of the leased premises, thus forcing Optima to file the instant case in
order to protect its rights and interest.
From the foregoing, we find that the MeTC committed no reversible error
in its 22 May 2006 Decision, and that the RTC committed no reversible
error either in affirming the MeTC's Decision.

WHEREFORE, in view of the foregoing, the instant Rule 45 Petition for

Review is GRANTED. The assailed Decision and Resolution of the Court
of Appeals in CA-G.R. SP No. 99890 are hereby REVERSED and SET
ASIDE. The Decision of the Regional Trial Court, Branch 13 7, Makati
City in Civil Case No. 06-672 affirming in toto the Decision of the
Metropolitan Trial Court, Branch 64, Makati City in Civil Case No. 90842
is hereby REINSTATED and AFFIRMED.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice
G.R. No. 130974 August 16, 2006
MA. IMELDA M. MANOTOC, Petitioner,
vs.
HONORABLE COURT OF APPEALS and AGAPITA TRAJANO on
behalf of the Estate of ARCHIMEDES TRAJANO, Respondents.
DECISION
VELASCO, JR., J.:
The courts jurisdiction over a defendant is founded on a valid service of
summons. Without a valid service, the court cannot acquire jurisdiction
over the defendant, unless the defendant voluntarily submits to it. The
defendant must be properly apprised of a pending action against him and
assured of the opportunity to present his defenses to the suit. Proper
service of summons is used to protect ones right to due process.
The Case
This Petition for Review on Certiorari 1 under Rule 45 presents the core
issue whether there was a valid substituted service of summons on
petitioner for the trial court to acquire jurisdiction. Petitioner Manotoc
claims the court a quo should have annulled the proceedings in the trial
court for want of jurisdiction due to irregular and ineffective service of
summons.
The Facts
Petitioner is the defendant in Civil Case No. 63337 entitled Agapita
Trajano, pro se, and on behalf of the Estate of Archimedes Trajano v.
Imelda Imee R. Marcos-Manotoc 2 for Filing, Recognition and/or
Enforcement of Foreign Judgment. Respondent Trajano seeks the
enforcement of a foreign courts judgment rendered on May 1, 1991 by
the United States District Court of Honolulu, Hawaii, United States of
America, in a case entitled Agapita Trajano, et al. v. Imee Marcos-
Manotoc a.k.a. Imee Marcos, Civil Case No. 86-0207 for wrongful death
of deceased Archimedes Trajano committed by military intelligence
officials of the Philippines allegedly under the command, direction,
authority, supervision, tolerance, sufferance and/or influence of defendant
Manotoc, pursuant to the provisions of Rule 39 of the then Revised Rules
of Court.
Based on paragraph two of the Complaint, the trial court issued a
Summons 3 on July 6, 1993 addressed to petitioner at Alexandra
Condominium Corporation or Alexandra Homes, E2 Room 104, at No. 29
Meralco Avenue, Pasig City.
On July 15, 1993, the Summons and a copy of the Complaint were
allegedly served upon (Mr.) Macky de la Cruz, an alleged caretaker of
petitioner at the condominium unit mentioned earlier. 4 When petitioner
failed to file her Answer, the trial court declared her in default through an
Order 5 dated October 13, 1993.
On October 19, 1993, petitioner, by special appearance of counsel, filed
a Motion to Dismiss 6 on the ground of lack of jurisdiction of the trial court
over her person due to an invalid substituted service of summons. The
grounds to support the motion were: (1) the address of defendant
indicated in the Complaint (Alexandra Homes) was not her dwelling,
residence, or regular place of business as provided in Section 8, Rule 14
of the Rules of Court; (2) the party (de la Cruz), who was found in the
unit, was neither a representative, employee, nor a resident of the place;
(3) the procedure prescribed by the Rules on personal and substituted
service of summons was ignored; (4) defendant was a resident of
Singapore; and (5) whatever judgment rendered in this case would be
ineffective and futile.
During the hearing on the Motion to Dismiss, petitioner Manotoc
presented Carlos Gonzales, who testified that he saw defendant Manotoc
as a visitor in Alexandra Homes only two times. He also identified the
Certification of Renato A. de Leon, which stated that Unit E-2104 was
owned by Queens Park Realty, Inc.; and at the time the Certification was
issued, the unit was not being leased by anyone. Petitioner also
presented her Philippine passport and the Disembarkation/Embarkation
Card 7 issued by the Immigration Service of Singapore to show that she
was a resident of Singapore. She claimed that the person referred to in
plaintiffs Exhibits "A" to "EEEE" as "Mrs. Manotoc" may not even be her,
but the mother of Tommy Manotoc, and granting that she was the one
referred to in said exhibits, only 27 out of 109 entries referred to Mrs.
Manotoc. Hence, the infrequent number of times she allegedly entered
Alexandra Homes did not at all establish plaintiffs position that she was a
resident of said place.
On the other hand, Agapita Trajano, for plaintiffs estate, presented
Robert Swift, lead counsel for plaintiffs in the Estate of Ferdinand Marcos
Human Rights Litigation, who testified that he participated in the
deposition taking of Ferdinand R. Marcos, Jr.; and he confirmed that Mr.
Marcos, Jr. testified that petitioners residence was at the Alexandra
Apartment, Greenhills. 8 In addition, the entries 9 in the logbook of
Alexandra Homes from August 4, 1992 to August 2, 1993, listing the
name of petitioner Manotoc and the Sheriffs Return, 10 were adduced in
evidence.
On October 11, 1994, the trial court rejected Manotocs Motion to Dismiss
on the strength of its findings that her residence, for purposes of the
Complaint, was Alexandra Homes, Unit E-2104, No. 29 Meralco Avenue,
Pasig, Metro Manila, based on the documentary evidence of respondent
Trajano. The trial court relied on the presumption that the sheriffs
substituted service was made in the regular performance of official duty,
and such presumption stood in the absence of proof to the contrary. 11
On December 21, 1994, the trial court discarded Manotocs plea for
reconsideration for lack of merit. 12
Undaunted, Manotoc filed a Petition for Certiorari and
Prohibition 13 before the Court of Appeals (CA) on January 20, 1995,
docketed as CA-G.R. SP No. 36214 seeking the annulment of the
October 11, 1994 and December 21, 1994 Orders of Judge Aurelio C.
Trampe.
Ruling of the Court of Appeals
On March 17, 1997, the CA rendered the assailed Decision, 14 dismissing
the Petition for Certiorari and Prohibition. The court a quo adopted the
findings of the trial court that petitioners residence was at Alexandra
Homes, Unit E-2104, at No. 29 Meralco Avenue, Pasig, Metro Manila,
which was also the residence of her husband, as shown by the testimony
of Atty. Robert Swift and the Returns of the registered mails sent to
petitioner. It ruled that the Disembarkation/Embarkation Card and the
Certification dated September 17, 1993 issued by Renato A. De Leon,
Assistant Property Administrator of Alexandra Homes, were hearsay, and
that said Certification did not refer to July 1993the month when the
substituted service was effected.
In the same Decision, the CA also rejected petitioners Philippine
passport as proof of her residency in Singapore as it merely showed the
dates of her departure from and arrival in the Philippines without
presenting the boilerplates last two (2) inside pages where petitioners
residence was indicated. The CA considered the withholding of those
pages as suppression of evidence. Thus, according to the CA, the trial
court had acquired jurisdiction over petitioner as there was a valid
substituted service pursuant to Section 8, Rule 14 of the old Revised
Rules of Court.
On April 2, 1997, petitioner filed a Motion for Reconsideration 15 which
was denied by the CA in its Resolution 16dated October 8, 1997.
Hence, petitioner has come before the Court for review on certiorari.
The Issues
Petitioner raises the following assignment of errors for the Courts
consideration:
I. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS
ERROR IN RENDERING THE DECISION AND RESOLUTION IN
QUESTION (ANNEXES A AND B) IN DEFIANCE OF LAW AND
JURISPRUDENCE IN RULING THAT THE TRIAL COURT ACQUIRED
JURISDICTION OVER THE PERSON OF THE PETITIONER THROUGH
A SUBSTITUTED SERVICE OF SUMMONS IN ACCORDANCE WITH
SECTION 8, RULE 14 OF THE REVISED RULES OF COURT.
II. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS
ERROR WHEN IT RULED THAT THERE WAS A VALID SERVICE OF
SUMMONS ON AN ALLEGED CARETAKER OF PETITIONERS
RESIDENCE IN COMPLETE DEFIANCE OF THE RULING
IN CASTILLO VS. CFI OF BULACAN, BR. IV, G.R. NO. L-55869,
FEBRUARY 20, 1984, 127 SCRA 632 WHICH DEFINES THE
PROPRIETY OF SUCH SERVICE UPON MERE OVERSEERS OF
PREMISES WHERE A PARTY SUPPOSEDLY RESIDES.
III. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS
ERROR IN CONCLUDING THAT THE RESIDENCE OF THE HUSBAND
IS ALSO THE RESIDENCE OF HIS WIFE CONTRARY TO THE RULING
IN THE BANK OF THE PHILIPPINE ISLANDS VS. DE COSTER, G.R.
NO. 23181, MARCH 16, 1925, 47 PHIL. 594.
IV. RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS
ERROR IN FAILING TO APPLY THE RULE ON EXTRA-TERRITORIAL
SERVICE OF SUMMONS UNDER SECTIONS 17 AND 18, RULE 14 OF
THE REVISED RULES OF COURT. 17
The assigned errors bring to the fore the crux of the disagreementthe
validity of the substituted service of summons for the trial court to acquire
jurisdiction over petitioner.
The Courts Ruling
We GRANT the petition.
Acquisition of Jurisdiction
Jurisdiction over the defendant is acquired either upon a valid service of
summons or the defendants voluntary appearance in court. When the
defendant does not voluntarily submit to the courts jurisdiction or when
there is no valid service of summons, "any judgment of the court which
has no jurisdiction over the person of the defendant is null and void." 18 In
an action strictly in personam, personal service on the defendant is the
preferred mode of service, that is, by handing a copy of the summons to
the defendant in person. If defendant, for excusable reasons, cannot be
served with the summons within a reasonable period, then substituted
service can be resorted to. While substituted service of summons is
permitted, "it is extraordinary in character and in derogation of the usual
method of service." 19 Hence, it must faithfully and strictly comply with the
prescribed requirements and circumstances authorized by the rules.
Indeed, "compliance with the rules regarding the service of summons is
as much important as the issue of due process as of jurisdiction." 20
Requirements for Substituted Service
Section 8 of Rule 14 of the old Revised Rules of Court which applies to
this case provides:
SEC. 8. 21 Substituted service. If the defendant cannot be served within
a reasonable time as provided in the preceding section [personal service
on defendant], service may be effected (a) by leaving copies of the
summons at the defendants residence with some person of suitable age
and discretion then residing therein, or (b) by leaving the copies at
defendants office or regular place of business with some competent
person in charge thereof.
We can break down this section into the following requirements to effect
a valid substituted service:
(1) Impossibility of Prompt Personal Service
The party relying on substituted service or the sheriff must show that
defendant cannot be served promptly or there is impossibility of prompt
service. 22 Section 8, Rule 14 provides that the plaintiff or the sheriff is
given a "reasonable time" to serve the summons to the defendant in
person, but no specific time frame is mentioned. "Reasonable time" is
defined as "so much time as is necessary under the circumstances for a
reasonably prudent and diligent man to do, conveniently, what the
contract or duty requires that should be done, having a regard for the
rights and possibility of loss, if any[,] to the other party." 23 Under the
Rules, the service of summons has no set period. However, when the
court, clerk of court, or the plaintiff asks the sheriff to make the return of
the summons and the latter submits the return of summons, then the
validity of the summons lapses. The plaintiff may then ask for an alias
summons if the service of summons has failed. 24 What then is a
reasonable time for the sheriff to effect a personal service in order to
demonstrate impossibility of prompt service? To the plaintiff, "reasonable
time" means no more than seven (7) days since an expeditious
processing of a complaint is what a plaintiff wants. To the sheriff,
"reasonable time" means 15 to 30 days because at the end of the month,
it is a practice for the branch clerk of court to require the sheriff to submit
a return of the summons assigned to the sheriff for service. The Sheriffs
Return provides data to the Clerk of Court, which the clerk uses in the
Monthly Report of Cases to be submitted to the Office of the Court
Administrator within the first ten (10) days of the succeeding month.
Thus, one month from the issuance of summons can be considered
"reasonable time" with regard to personal service on the defendant.
Sheriffs are asked to discharge their duties on the service of summons
with due care, utmost diligence, and reasonable promptness and speed
so as not to prejudice the expeditious dispensation of justice. Thus, they
are enjoined to try their best efforts to accomplish personal service on
defendant. On the other hand, since the defendant is expected to try to
avoid and evade service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the defendant.
For substituted service of summons to be available, there must be
several attempts by the sheriff to personally serve the summons within a
reasonable period [of one month] which eventually resulted in failure to
prove impossibility of prompt service. "Several attempts" means at least
three (3) tries, preferably on at least two different dates. In addition, the
sheriff must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service. 25 The efforts
made to find the defendant and the reasons behind the failure must be
clearly narrated in detail in the Return. The date and time of the attempts
on personal service, the inquiries made to locate the defendant, the
name/s of the occupants of the alleged residence or house of defendant
and all other acts done, though futile, to serve the summons on
defendant must be specified in the Return to justify substituted service.
The form on Sheriffs Return of Summons on Substituted Service
prescribed in the Handbook for Sheriffs published by the Philippine
Judicial Academy requires a narration of the efforts made to find the
defendant personally and the fact of failure. 26 Supreme Court
Administrative Circular No. 5 dated November 9, 1989 requires that
"impossibility of prompt service should be shown by stating the efforts
made to find the defendant personally and the failure of such efforts,"
which should be made in the proof of service.
(3) A Person of Suitable Age and Discretion
If the substituted service will be effected at defendants house or
residence, it should be left with a person of "suitable age and discretion
then residing therein." 27 A person of suitable age and discretion is one
who has attained the age of full legal capacity (18 years old) and is
considered to have enough discernment to understand the importance of
a summons. "Discretion" is defined as "the ability to make decisions
which represent a responsible choice and for which an understanding of
what is lawful, right or wise may be presupposed". 28 Thus, to be of
sufficient discretion, such person must know how to read and understand
English to comprehend the import of the summons, and fully realize the
need to deliver the summons and complaint to the defendant at the
earliest possible time for the person to take appropriate action. Thus, the
person must have the "relation of confidence" to the defendant, ensuring
that the latter would receive or at least be notified of the receipt of the
summons. The sheriff must therefore determine if the person found in the
alleged dwelling or residence of defendant is of legal age, what the
recipients relationship with the defendant is, and whether said person
comprehends the significance of the receipt of the summons and his duty
to immediately deliver it to the defendant or at least notify the defendant
of said receipt of summons. These matters must be clearly and
specifically described in the Return of Summons.
(4) A Competent Person in Charge
If the substituted service will be done at defendants office or regular
place of business, then it should be served on a competent person in
charge of the place. Thus, the person on whom the substituted service
will be made must be the one managing the office or business of
defendant, such as the president or manager; and such individual must
have sufficient knowledge to understand the obligation of the defendant
in the summons, its importance, and the prejudicial effects arising from
inaction on the summons. Again, these details must be contained in the
Return.
Invalid Substituted Service in the Case at Bar
Let us examine the full text of the Sheriffs Return, which reads:
THIS IS TO CERTIFY that on many occasions several attempts were
made to serve the summons with complaint and annexes issued by this
Honorable Court in the above entitled case, personally upon the
defendant IMELDA IMEE MARCOS-MANOTOC located at Alexandra
Condominium Corpration [sic] or Alexandra Homes E-2 Room 104 No. 29
Merlaco [sic] Ave., Pasig, Metro-Manila at reasonable hours of the day
but to no avail for the reason that said defendant is usually out of her
place and/or residence or premises. That on the 15th day of July, 1993,
substituted service of summons was resorted to in accordance with the
Rules of Court in the Philippines leaving copy of said summons with
complaint and annexes thru [sic] (Mr) Macky de la Cruz, caretaker of the
said defendant, according to (Ms) Lyn Jacinto, Receptionist and
Telephone Operator of the said building, a person of suitable age and
discretion, living with the said defendant at the given address who
acknowledged the receipt thereof of said processes but he refused to
sign (emphases supplied).
WHEREFORE, said summons is hereby returned to this Honorable Court
of origin, duly served for its record and information.
Pasig, Metro-Manila July 15, 1993. 29
A meticulous scrutiny of the aforementioned Return readily reveals the
absence of material data on the serious efforts to serve the Summons on
petitioner Manotoc in person. There is no clear valid reason cited in the
Return why those efforts proved inadequate, to reach the conclusion that
personal service has become impossible or unattainable outside the
generally couched phrases of "on many occasions several attempts were
made to serve the summons x x x personally," "at reasonable hours
during the day," and "to no avail for the reason that the said defendant is
usually out of her place and/or residence or premises." Wanting in
detailed information, the Return deviates from the rulingin Domagas v.
Jensen 30 and other related cases 31that the pertinent facts and
circumstances on the efforts exerted to serve the summons personally
must be narrated in the Return. It cannot be determined how many times,
on what specific dates, and at what hours of the day the attempts were
made. Given the fact that the substituted service of summons may be
assailed, as in the present case, by a Motion to Dismiss, it is imperative
that the pertinent facts and circumstances surrounding the service of
summons be described with more particularity in the Return or Certificate
of Service.
Besides, apart from the allegation of petitioners address in the
Complaint, it has not been shown that respondent Trajano or Sheriff
Caelas, who served such summons, exerted extraordinary efforts to
locate petitioner. Certainly, the second paragraph of the Complaint only
states that respondents were "informed, and so [they] allege" about the
address and whereabouts of petitioner. Before resorting to substituted
service, a plaintiff must demonstrate an effort in good faith to locate the
defendant through more direct means. 32 More so, in the case in hand,
when the alleged petitioners residence or house is doubtful or has not
been clearly ascertained, it would have been better for personal service
to have been pursued persistently.
In the case Umandap v. Sabio, Jr., 33 it may be true that the Court held
that a Sheriffs Return, which states that "despite efforts exerted to serve
said process personally upon the defendant on several occasions the
same proved futile," conforms to the requirements of valid substituted
service. However, in view of the numerous claims of irregularities in
substituted service which have spawned the filing of a great number of
unnecessary special civil actions of certiorari and appeals to higher
courts, resulting in prolonged litigation and wasteful legal expenses, the
Court rules in the case at bar that the narration of the efforts made to find
the defendant and the fact of failure written in broad and imprecise words
will not suffice. The facts and circumstances should be stated with more
particularity and detail on the number of attempts made at personal
service, dates and times of the attempts, inquiries to locate defendant,
names of occupants of the alleged residence, and the reasons for failure
should be included in the Return to satisfactorily show the efforts
undertaken. That such efforts were made to personally serve summons
on defendant, and those resulted in failure, would prove impossibility of
prompt personal service.
Moreover, to allow sheriffs to describe the facts and circumstances in
inexact terms would encourage routine performance of their precise
duties relating to substituted servicefor it would be quite easy to shroud
or conceal carelessness or laxity in such broad terms. Lastly, considering
that monies and properties worth millions may be lost by a defendant
because of an irregular or void substituted service, it is but only fair that
the Sheriffs Return should clearly and convincingly show the
impracticability or hopelessness of personal service.
Granting that such a general description be considered adequate, there
is still a serious nonconformity from the requirement that the summons
must be left with a "person of suitable age and discretion" residing in
defendants house or residence. Thus, there are two (2) requirements
under the Rules: (1) recipient must be a person of suitable age and
discretion; and (2) recipient must reside in the house or residence of
defendant. Both requirements were not met. In this case, the Sheriffs
Return lacks information as to residence, age, and discretion of Mr.
Macky de la Cruz, aside from the sheriffs general assertion that de la
Cruz is the "resident caretaker" of petitioner as pointed out by a certain
Ms. Lyn Jacinto, alleged receptionist and telephone operator of Alexandra
Homes. It is doubtful if Mr. de la Cruz is residing with petitioner Manotoc
in the condominium unit considering that a married woman of her stature
in society would unlikely hire a male caretaker to reside in her dwelling.
With the petitioners allegation that Macky de la Cruz is not her
employee, servant, or representative, it is necessary to have additional
information in the Return of Summons. Besides, Mr. Macky de la Cruzs
refusal to sign the Receipt for the summons is a strong indication that he
did not have the necessary "relation of confidence" with petitioner. To
protect petitioners right to due process by being accorded proper notice
of a case against her, the substituted service of summons must be shown
to clearly comply with the rules.
It has been stated and restated that substituted service of summons must
faithfully and strictly comply with the prescribed requirements and in the
circumstances authorized by the rules. 34
Even American case law likewise stresses the principle of strict
compliance with statute or rule on substituted service, thus:
The procedure prescribed by a statute or rule for substituted or
constructive service must be strictly pursued. 35There must be strict
compliance with the requirements of statutes authorizing substituted or
constructive service.36
Where, by the local law, substituted or constructive service is in certain
situations authorized in the place of personal service when the latter is
inconvenient or impossible, a strict and literal compliance with the
provisions of the law must be shown in order to support the judgment
based on such substituted or constructive service. 37Jurisdiction is not to
be assumed and exercised on the general ground that the subject matter
of the suit is within the power of the court. The inquiry must be as to
whether the requisites of the statute have been complied with, and such
compliance must appear on the record. 38 The fact that the defendant had
actual knowledge of attempted service does not render the service
effectual if in fact the process was not served in accordance with the
requirements of the statute. 39
serve the summons, the Return of Sheriff Caelas in the case at bar
merely described the efforts or attempts in general terms lacking in
details as required by the ruling in the case of Domagas v. Jensen and
other cases. It is as if Caelas Return did not mention any effort to
accomplish personal service. Thus, the substituted service is void.
On the issue whether petitioner Manotoc is a resident of Alexandra
Homes, Unit E-2104, at No. 29 Meralco Avenue, Pasig City, our findings
that the substituted service is void has rendered the matter moot and
academic. Even assuming that Alexandra Homes Room 104 is her actual
residence, such fact would not make an irregular and void substituted
service valid and effective.

Based on the above principles, respondent Trajano failed to demonstrate
that there was strict compliance with the requirements of the then Section
8, Rule 14 (now Section 7, Rule 14 of the 1997 Rules of Civil Procedure).
Due to non-compliance with the prerequisites for valid substituted
service, the proceedings held before the trial court perforce must be
annulled.
The court a quo heavily relied on the presumption of regularity in the
performance of official duty. It reasons out that "[t]he certificate of service
by the proper officer is prima facie evidence of the facts set out herein,
and to overcome the presumption arising from said certificate, the
evidence must be clear and convincing." 40
IN VIEW OF THE FOREGOING, this Petition for Review is hereby
GRANTED and the assailed March 17, 1997 Decision and October 8,
1997 Resolution of the Court of Appeals and the October 11, 1994 and
December 21, 1994 Orders of the Regional Trial Court, National Capital
Judicial Region, Pasig City, Branch 163 are herebyREVERSED and SET
ASIDE.No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

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

In the case of Venturanza v. Court of Appeals, 41 it was held that "x x x the
presumption of regularity in the performance of official functions by the
sheriff is not applicable in this case where it is patent that the sheriffs
return is defective (emphasis supplied)." While the Sheriffs Return in the
Venturanza case had no statement on the effort or attempt to personally
G.R. No. 163584 December 12, 2006 around. I explained to the Security Guard that I am a sheriff
serving the summons to the defendant, and if the defendant is not
REMELITA M. ROBINSON, petitioner, around, summons can be received by any person of suitable age
vs. and discretion living in the same house. Despite of all the
CELITA B. MIRALLES, respondent. explanation, the security guard by the name of A.H. Geroche still
refused to let me go inside the subdivision and served (sic) the
summons to the defendant. The same thing happened when I
attempted to serve the summons previously.

DECISION Therefore, the summons was served by leaving a copy thereof

together with the copy of the complaint to the security guard by
the name of A.H. Geroche, who refused to affix his signature on
the original copy thereof, so he will be the one to give the same to
the defendant.
SANDOVAL-GUTIERREZ, J.:
Eventually, respondent filed a motion to declare petitioner in default for
her failure to file an answer seasonably despite service of summons.
Before us is the instant petition for review on certiorari assailing the
Resolutions dated February 111 and May 11, 20042 of the Regional Trial
On February 28, 2003, the trial court granted respondents motion
Court (RTC), Branch 274, Paraaque City, in Civil Case No. 00-0372.
declaring petitioner in default and allowing respondent to present her
evidence ex parte.
On August 25, 2000, Celita Miralles, respondent, filed with the said court
a complaint for sum of money against Remelita Robinson, petitioner,
On June 20, 2003, the trial court issued an Order, the dispositive portion
docketed as Civil Case No. 00-0372. Respondent alleged that petitioner
of which reads:
borrowed from her US$20,054.00 as shown by a Memorandum of
Agreement they both executed on January 12, 2000.
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against defendant ordering the defendant to pay the
Summons was served on petitioner at her given address. However, per
plaintiff as follows:
return of service of Sheriff Maximo Potente dated March 5, 2001,
petitioner no longer resides at such address.
1. The sum of US$20,054.00 as the unpaid obligation, plus the
stipulated interest of 3% a month from May 2000 (date of default)
On July 20, 2001, the trial court issued an alias summons to be served at
until fully paid;
No. 19 Baguio St., Alabang Hills, Muntinlupa City, petitioners new
address.
2. Php100,000.00 for moral damages;
Again, the summons could not be served on petitioner. Sheriff Potente
explained that: 3. Php50,000.00 plus Php1,500.00 per appearance as attorneys
fees;
The Security Guard assigned at the gate of Alabang Hills refused
to let me go inside the subdivision so that I could effect the 4. Costs of suit.
service of the summons to the defendant in this case. The
security guard alleged that the defendant had given them SO ORDERED.
instructions not to let anybody proceed to her house if she is not
A copy of the Order was sent to petitioner by registered mail at her new
address.
Upon respondents motion, the trial court, on September 8, 2003, issued
a writ of execution.
On September 26, 2003, petitioner filed with the trial court a petition for
relief from the judgment by default. She claimed that summons was
improperly served upon her, thus, the trial court never acquired
jurisdiction over her and that all its proceedings are void.
On February 11, 2004, the trial court issued a Resolution denying the
petition for relief. Petitioner filed a motion for reconsideration, but it was
denied by the trial court in a Resolution dated May 11, 2004.
Hence, the instant recourse.
The sole issue for our resolution is whether the trial court correctly ruled
that a substituted service of summons upon petitioner has been validly
effected.
Summons is a writ by which the defendant is notified of the action
brought against him or her.3 In a civil action, service of summons is the
means by which the court acquires jurisdiction over the person of the
defendant.4 Any judgment without such service, in the absence of a valid
waiver, is null and void.5 Where the action is in personamand the
defendant is in the Philippines, the service of summons may be made
through personal or substituted service in the manner provided for in
Sections 6 and 7, Rule 14 of the 1997 Rules of Procedure, as
amended,6thus:
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.
SEC. 7. Substituted service. If, for justifiable causes, the
defendant cannot be served within a reasonable time as provided
in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendants residence with some
person of suitable age and discretion then residing therein; or (b)
by leaving the copies at the defendants office or regular place of
business with some competent person in charge thereof.
Under our procedural rules, personal service is generally preferred over
substituted service, the latter mode of service being a method
extraordinary in character.7 For substituted service to be justified, the
following circumstances must be clearly established: (a) personal service
of summons within a reasonable time was impossible; (b) efforts were
exerted to locate the party; and (c) the summons was served upon a
person of sufficient age and discretion residing at the partys residence or
upon a competent person in charge of the partys office or place of
business.8 Failure to do so would invalidate all subsequent proceedings
on jurisdictional grounds.9
Petitioner contends that the service of summons upon the subdivision
security guard is not in compliance with Section 7, Rule 14 since he is not
related to her or staying at her residence. Moreover, he is not duly
authorized to receive summons for the residents of the village. Hence,
the substituted service of summons is not valid and that the trial court
never acquired jurisdiction over her person.
We have ruled that the statutory requirements of substituted service must
be followed strictly, faithfully, and fully and any substituted service other
than that authorized by the Rules is considered ineffective. 10 However, we
frown upon an overly strict application of the Rules. It is the spirit, rather
than the letter of the procedural rules, that governs.
In his Return, Sheriff Potente declared that he was refused entry by the
security guard in Alabang Hills twice. The latter informed him that
petitioner prohibits him from allowing anybody to proceed to her
residence whenever she is out. Obviously, it was impossible for the
sheriff to effect personal or substituted service of summons upon
petitioner. We note that she failed to controvert the sheriffs declaration.
Nor did she deny having received the summons through the security
guard.
Considering her strict instruction to the security guard, she must bear its
consequences. Thus, we agree with the trial court that summons has
been properly served upon petitioner and that it has acquired jurisdiction
over her.
WHEREFORE, we DENY the petition and we AFFIRM the assailed
Orders of the RTC, Branch 274, Paraaque City, in Civil Case No. 00-
0372. Costs against petitioner. SO ORDERED. Puno, C.J., Chairperson,
Corona, Azcuna, and Garcia, JJ., concur.