II.

Jurisdiction
- Jurisdiction is the authority of a tribunal to hear and decide a case.
1. Jurisdiction over the Subject Matter
- jurisdiction by subj matter is conferred by law
2. Jurisdiction over the Res
- it is the jurisdiction over the particular subj matter in controversy, regardless of the persons who may be interested
thereon.
3. Jurisdiction over the Person
- is power of the court to render judgment that will be binding on the parties involved: the plaintiff and the
defendant. Jurisdiction over the plaintiff is acquired upon filing of the complaint. Jurisdiction over the defendant is
acquired through:
 Personal service of summons;
 Substituted service of summons;
 Voluntary appearance; or
 By publication (if the action is in rem or quasi in rem)

Jurisdiction over the person

a. Acquiring jurisdiction over the plaintiff
b. Acquiring jurisdiction over the defendant
Summons (Rule 14 ROC)
Character of summons (Sec. 2)
When issued (Sec. 1)
- Asiavest Limited vs. court of appeals, 296 SCRA 539

G.R. No. 128803 September 25, 1998

ASIAVEST LIMITED, petitioner, vs.

THE COURT OF APPEALS and ANTONIO HERAS, respondents.

DAVIDE, JR., J.:

In issue is the enforceability in the Philippines of a foreign judgment. The antecedents are summarized in the 24
August 1990 Decision of Branch 107 of the Regional Trial Court of Quezon City in Civil Case No. Q-52452; thus:
1

The plaintiff Asiavest Limited filed a complaint on December 3, 1987 against the defendant Antonio
Heras praying that said defendant be ordered to pay to the plaintiff the amounts awarded by the
Hong Kong Court Judgment dated December 28, 1984 and amended on April 13, 1987, to wit:

1) US$1,810,265.40 or its equivalent in Hong Kong currency at the

time of payment with legal interest from December 28, 1984 until fully
paid;

2) interest on the sum of US$1,500.00 at 9.875% per annum from

October 31, 1984 to December 28, 1984; and

3) HK$905.00 at fixed cost in the action; and

4) at least $80,000.00 representing attorney's fees, litigation

expenses and cost, with interest thereon from the date of the
judgment until fully paid.

On March 3, 1988, the defendant filed a Motion to Dismiss. However, before the court could resolve
the said motion, a fire which partially razed the Quezon City Hall Building on June 11, 1988 totally
destroyed the office of this Court, together with all its records, equipment and properties. On July 26,
1988, the plaintiff, through counsel filed a Motion for Reconstitution of Case Records. The Court,
after allowing the defendant to react thereto, granted the said Motion and admitted the annexes
attached thereto as the reconstituted records of this case per Order dated September 6, 1988.
Thereafter, the Motion to Dismiss, the resolution of which had been deferred; was denied by the
Court in its Order of October 4, 1988.

On October 19, 1988, defendant filed his Answer. The case was then set for pre-trial conference. At
the conference, the parties could not arrive at any settlement. However, they agreed on the following
stipulations of facts:
 1. The defendant admits the existence of the judgment dated
December 28, 1984 as well as its amendment dated April 13, 1987,
but not necessarily the authenticity or validity thereof;

2. The plaintiff is not doing business and is not licensed to do

business in the Philippines;

3. The residence of defendant, Antonio Heras, is New Manila,

Quezon City.

The only issue for this Court to determine is, whether or not the judgment of the Hong Kong Court
has been repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud or
clear mistake of law or fact, such as to overcome the presumption established in Section 50, Rule 39
of the Rules of Court in favor of foreign judgments.

In view of the admission by the defendant of the existence of the aforementioned judgment (Pls. See
Stipulations of Facts in the Order dated January 5, 1989 as amended by the Order of January 18,
1989), as well as the legal presumption in favor of the plaintiff as provided for in paragraph (b); Sec.
50, (Ibid.), the plaintiff presented only documentary evidence to show rendition, existence, and
authentication of such judgment by the proper officials concerned (Pls. See Exhibits "A" thru "B",
with their submarkings). In addition, the plaintiff presented testimonial and documentary evidence to
show its entitlement to attorney's fees and other expenses of litigation. . . . .

On the other hand, the defendant presented two witnesses, namely. Fortunata dela Vega and
Russel Warren Lousich.

The gist of Ms. dela Vega's testimony is to the effect that no writ of summons or copy of a statement
of claim of Asiavest Limited was ever served in the office of the Navegante Shipping Agency Limited
and/or for Mr. Antonio Heras, and that no service of the writ of summons was either served on the
defendant at his residence in New Manila, Quezon City. Her knowledge is based on the fact that she
was the personal secretary of Mr. Heras during his JD Transit days up to the latter part of 1972 when
he shifted or diversified to shipping business in Hong Kong; that she was in-charge of all his letters
and correspondence, business commitments, undertakings, conferences and appointments, until
October 1984 when Mr. Heras left Hong Kong for good; that she was also the Officer-in-Charge or
Office Manager of Navegante Shipping Agency LTD, a Hong Kong registered and based company
acting as ships agent, up to and until the company closed shop sometime in the first quarter of 1985,
when shipping business collapsed worldwide; that the said company held office at 34-35 Connaught
Road, Central Hong Kong and later transferred to Carton House at Duddel Street, Hong Kong, until
the company closed shop in 1985; and that she was certain of such facts because she held office at
Caxton House up to the first quarter of 1985.

Mr. Lousich was presented as an expert on the laws of Hong Kong, and as a representative of the
law office of the defendant's counsel who made a verification of the record of the case filed by the
plaintiff in Hong Kong against the defendant, as well as the procedure in serving Court processes in
Hong Kong.

In his affidavit (Exh. "2") which constitutes his direct testimony, the said witness stated that:

The defendant was sued on the basis of his personal guarantee of the obligations of
Compania Hermanos de Navegacion S.A. There is no record that a writ of summons
was served on the person of the defendant in Hong Kong, or that any such attempt at
service was made. Likewise, there is no record that a copy of the judgment of the
High Court was furnished or served on the defendant; anyway, it is not a legal
requirement to do so under Hong Kong laws;

a) The writ of summons or claim can be served by the solicitor

(lawyer) of the claimant or plaintiff. In Hong Kong there are no Court
personnel who serve writs of summons and/or most other processes.

b) If the writ of summons or claim (or complaint) is not contested, the

claimant or the plaintiff is not required to present proof of his claim or
complaint nor present evidence under oath of the claim in order to
obtain a Judgment.

c) There is no legal requirement that such a Judgment or decision

rendered by the Court in Hong Kong [to] make a recitation of the facts
or the law upon which the claim is based.
 d) There is no necessity to furnish the defendant with a copy of the
Judgment or decision rendered against him.

e) In an action based on a guarantee, there is no established legal

requirement or obligation under Hong Kong laws that the creditor
must first bring proceedings against the principal debtor. The creditor
can immediately go against the guarantor.

On cross examination, Mr. Lousich stated that before he was commissioned by the law firm of the
defendant's counsel as an expert witness and to verify the records of the Hong Kong case, he had
been acting as counsel for the defendant in a number of commercial matters; that there was an
application for service of summons upon the defendant outside the jurisdiction of Hong Kong; that
there was an order of the Court authorizing service upon Heras outside of Hong Kong, particularly in
Manila or any other place in the Philippines (p. 9, TSN, 2/14/90); that there must be adequate proof
of service of summons, otherwise the Hong Kong Court will refuse to render judgment (p. 10, ibid);
that the mere fact that the Hong Kong Court rendered judgment, it can be presumed that there was
service of summons; that in this case, it is not just a presumption because there was an affidavit
stating that service was effected in [sic] a particular man here in Manila; that such affidavit was filed
by one Jose R. Fernandez of the firm Sycip Salazar on the 21st of December 1984, and stated in
essence that "on Friday, the 23rd of November 1984 he served the 4th defendant at No. 6 First
Street, Quezon City by leaving it at that address with Mr. Dionisio Lopez, the son-in-law of the 4th
defendant the copy of the writ and Mr. Lopez informed me and I barely believed that he would bring
the said writ to the attention of the 4th defendant" (pp. 11-12, ibid.); that upon filing of that affidavit,
the Court was asked and granted judgment against the 4th defendant; and that if the summons or
claim is not contested, the claimant of the plaintiff is not required to present proof of his claim or
complaint or present evidence under oath of the claim in order to obtain judgment; and that such
judgment can be enforced in the same manner as a judgment rendered after full hearing.

The trial court held that since the Hong Kong court judgment had been duly proved, it is a presumptive evidence of
a right as between the parties; hence, the party impugning it had the burden to prove want of jurisdiction over his
person. HERAS failed to discharge that burden. He did not testify to state categorically and under oath that he never
received summons. Even his own witness Lousich admitted that HERAS was served with summons in his Quezon
City residence. As to De la Vega's testimony regarding non-service of summons, the same was hearsay and had no
probative value.

As to HERAS' contention that the Hong Kong court judgment violated the Constitution and the procedural laws of
the Philippines because it contained no statements of the facts and the law on which it was based, the trial court
ruled that since the issue relate to procedural matters, the law of the forum, i.e., Hong Kong laws, should govern. As
testified by the expert witness Lousich, such legalities were not required under Hong Kong laws. The trial Court also
debunked HERAS' contention that the principle of excussion under Article 2058 of the Civil Code of the Philippines
was violated. It declared that matters of substance are subject to the law of the place where the transaction
occurred; in this case, Hong Kong laws must govern.

The trial court concluded that the Hong Kong court judgment should be recognized and given effect in this
jurisdiction for failure of HERAS to overcome the legal presumption in favor of the foreign judgment. It then decreed;
thus:

WHEREFORE, judgment is hereby rendered ordering defendant to pay to the plaintiff the following
sums or their equivalents in Philippine currency at the time of payment: US$1,810,265.40 plus
interest on the sum of US$1,500,000.00 at 9.875% per annum from October 31, 1984 to December
28, 1984, and HK$905 as fixed cost, with legal interests on the aggregate amount from December
28, 1984, and to pay attorney's fees in the sum of P80,000.00.

ASIAVEST moved for the reconsideration of the decision. It sought an award of judicial costs and an increase in
attorney's fees in the amount of US$19,346.45 with interest until full payment of the said obligations. On the other
hand, HERAS no longer opposed the motion and instead appealed the decision to the Court of Appeals, which
docketed the appeal as CA-G.R. CV No. 29513.

In its order of 2 November 1990, the trial court granted ASIAVEST's motion for reconsideration by increasing the
2

award of attorney's fees to "US$19,345.65 OR ITS EQUIVALENT IN PHILIPPINE CURRENCY, AND TO PAY THE
COSTS OF THIS SUIT," provided that ASIAVEST would pay the corresponding filing fees for the increase.
ASIAVEST appealed the order requiring prior payment of filing fees. However, it later withdrew its appeal and paid
the additional filing fees.

On 3 April 1997, the Court of Appeals rendered its decision reversing the decision of the trial court and dismissing
3

ASIAVEST's complaint without prejudice. It underscored the fact that a foreign judgment does not of itself have any
extraterritorial application. For it to be given effect, the foreign tribunal should have acquired jurisdiction over the
person and the subject matter. If such tribunal has not acquired jurisdiction, its judgment is void.
The Court of Appeals agreed with the trial court that matters of remedy and procedure, such as those relating to
service of summons upon the defendant are governed by the lex fori, which was, in this case, the law of Hong Kong.
Relative thereto, it gave weight to Lousich's testimony that under the Hong Kong law, the substituted service of
summons upon HERAS effected in the Philippines by the clerk of Sycip Salazar Hernandez & Gatmaitan firm would
be valid provided that it was done in accordance with Philippine laws. It then stressed that where the action is in
personam and the defendant is in the Philippines, the summons should be personally served on the defendant
pursuant to Section 7, Rule 14 of the Rules of Court. Substituted service may only be availed of where the
4

defendant cannot be promptly served in person, the fact of impossibility of personal service should be explained in
the proof of service. It also found as persuasive HERAS' argument that instead of directly using the clerk of the
Sycip Salazar Hernandez & Gatmaitan law office, who was not authorized by the judge of the court issuing the
summons, ASIAVEST should have asked for leave of the local courts to have the foreign summons served by the
sheriff or other court officer of the place where service was to be made, or for special reasons by any person
authorized by the judge.

The Court of Appeals agreed with HERAS that "notice sent outside the state to a non-resident is unavailing to give
jurisdiction in an action against him personally for money recovery." Summons should have been personally served
on HERAS in Hong Kong, for, as claimed by ASIAVEST, HERAS was physically present in Hong Kong for nearly 14
years. Since there was not even an attempt to serve summons on HERAS in Hong Kong, the Hong Kong Supreme
Court did not acquire jurisdiction over HERAS. Nonetheless it did not totally foreclose the claim of ASIAVEST; thus:

While We are not fully convinced that [HERAS] has a meritorious defense against [ASIAVEST's]
claims or that [HERAS] ought to be absolved of any liability, nevertheless, in view of the foregoing
discussion, there is a need to deviate front the findings of the lower court in the interest of justice and
fair play. This, however, is without prejudice to whatever action [ASIAVEST] might deem proper in
order to enforce its claims against [HERAS].

Finally, the Court of Appeals also agreed with HERAS that it was necessary that evidence supporting the validity of
the foreign judgment be submitted, and that our courts are not bound to give effect to foreign judgments which
contravene our laws and the principle of sound morality and public policy.

ASIAVEST forthwith filed the instant petition alleging that the Court of Appeals erred in ruling that

I.

. . . IT WAS NECESSARY FOR [ASIAVEST] TO PRESENT EVIDENCE "SUPPORTING THE

VALIDITY OF THE JUDGMENT";

II.

. . . THE SERVICE OF SUMMONS ON [HERAS] WAS DEFECTIVE UNDER PHILIPPINES LAW;

III.

. . . SUMMONS SHOULD HAVE BEEN PERSONALLY SERVED ON HERAS IN HONG KONG;

IV.

. . . THE HONG KONG SUMMONS SHOULD HAVE BEEN SERVED WITH LEAVE OF PHILIPPINE
COURTS;

V.

. . . THE FOREIGN JUDGMENT "CONTRAVENES PHILIPPINE LAWS, THE PRINCIPLES OF

SOUND MORALITY, AND THE PUBLIC POLICY OF THE PHILIPPINES.

Being interrelated, we shall take up together the assigned errors.

Under paragraph (b) of Section 50, Rule 39 of the Rules of Court, which was the governing law at the time this case
5

was decided by the trial court and respondent Court of Appeals, a foreign judgment against a person rendered by a
court having jurisdiction to pronounce the judgment is presumptive evidence of a right as between the parties and
their successors in interest by the subsequent title. However, the judgment may be repelled by evidence of want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

Also, Section 3(n) of Rule 131 of the New Rules of Evidence provides that in the absence of proof to the contrary, a
court, or judge acting as such, whether in the Philippines or elsewhere, is presumed to have acted in the lawful
exercise of jurisdiction.
Hence, once the authenticity of the foreign judgment is proved, the burden to repel it on grounds provided for in
paragraph (b) of Section 50, Rule 39 of the Rules of Court is on the party challenging the foreign judgment —
HERAS in this case.

At the pre-trial conference, HERAS admitted the existence of the Hong Kong judgment. On the other hand,
ASIAVEST presented evidence to prove rendition, existence, and authentication of the judgment by the proper
officials. The judgment is thus presumed to be valid and binding in the country from which it comes, until the
contrary is shown. Consequently, the first ground relied upon by ASIAVEST has merit. The presumption of validity
6

accorded foreign judgment would be rendered meaningless were the party seeking to enforce it be required to first
establish its validity.

The main argument raised against the Hong Kong judgment is that the Hong Kong Supreme Court did not acquire
jurisdiction over the person of HERAS. This involves the issue of whether summons was properly and validly served
on HERAS. It is settled that matters of remedy and procedure such as those relating to the service of process upon
the defendant are governed by the lex fori or the law of the forum, i.e., the law of Hong Kong in this case. HERAS
7

insisted that according to his witness Mr. Lousich, who was presented as an expert on Hong Kong laws, there was
no valid service of summons on him.

In his counter-affidavit, which served as his direct testimony per agreement of the parties, Lousich declared that the
8 9

record of the Hong Kong case failed to show that a writ of summons was served upon HERAS in Hong Kong or that
any such attempt was made. Neither did the record show that a copy of the judgment of the court was served on
HERAS. He stated further that under Hong Kong laws (a) a writ of summons could be served by the solicitor of the
claimant or plaintiff; and (b) where the said writ or claim was not contested, the claimant or plaintiff was not required
to present proof under oath in order to obtain judgment.

On cross-examination by counsel for ASIAVEST, Lousich' testified that the Hong Kong court authorized service of
summons on HERAS outside of its jurisdiction, particularly in the Philippines. He admitted also the existence of an
affidavit of one Jose R. Fernandez of the Sycip Salazar Hernandez & Gatmaitan law firm stating that he (Fernandez)
served summons on HERAS on 13 November 1984 at No. 6, 1st St., Quezon City, by leaving a copy with HERAS's
son-in-law Dionisio Lopez. On redirect examination, Lousich declared that such service of summons would be
10

valid under Hong Kong laws provided that it was in accordance with Philippine laws. 11

We note that there was no objection on the part of ASIAVEST on the qualification of Mr. Lousich as an expert on the
Hong Kong law. Under Sections 24 and 25, Rule 132 of the New Rules of Evidence, the record of public documents
of a sovereign authority, tribunal, official body, or public officer may be proved by (1) an official publication thereof or
(2) a copy attested by the officer having the legal custody thereof, which must be accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the custody. The certificate may be issued by a
secretary of the embassy or legation, consul general, consul, vice consul, or consular agent, or any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office. The attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be, and must be under the official seal of the attesting officer.

Nevertheless, the testimony of an expert witness may be allowed to prove a foreign law. An authority 12
on private
international law thus noted:

Although it is desirable that foreign law be proved in accordance with the above rule, however, the
Supreme Court held in the case of Willamette Iron and Steel Works v. Muzzal, that Section 41,
13

Rule 123 (Section 25, Rule 132 of the Revised Rules of Court) does not exclude the presentation of
other competent evidence to prove the existence of a foreign law. In that case, the Supreme Court
considered the testimony under oath of an attorney-at-law of San Francisco, California, who quoted
verbatim a section of California Civil Code and who stated that the same was in force at the time the
obligations were contracted, as sufficient evidence to establish the existence of said law.
Accordingly, in line with this view, the Supreme Court in the Collector of Internal Revenue v. Fisher
et al., upheld the Tax Court in considering the pertinent law of California as proved by the
14

respondents' witness. In that case, the counsel for respondent "testified that as an active member of
the California Bar since 1951, he is familiar with the revenue and taxation laws of the State of
California. When asked by the lower court to state the pertinent California law as regards exemption
of intangible personal properties, the witness cited Article 4, Sec. 13851 (a) & (b) of the California
Internal and Revenue Code as published in Derring's California Code, a publication of Bancroft-
Whitney Co., Inc. And as part of his testimony, a full quotation of the cited section was offered in
evidence by respondents." Likewise, in several naturalization cases, it was held by the Court that
evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship,
although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable
action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written
proof offered." Thus, in, a number of decisions, mere authentication of the Chinese Naturalization
15

Law by the Chinese Consulate General of Manila was held to be competent proof of that law. 16

There is, however, nothing in the testimony of Mr. Lousich that touched on the specific law of Hong Kong in respect
of service of summons either in actions in rem or in personam, and where the defendant is either a resident or
nonresident of Hong Kong. In view of the absence of proof of the Hong Kong law on this particular issue, the
presumption of identity or similarity or the so-called processual presumption shall come into play. It will thus be
presumed that the Hong Kong law on the matter is similar to the Philippine law. 17

As stated in Valmonte vs. Court of Appeals, it will be helpful to determine first whether the action is in
18

personam, in rem, or quasi in rem because the rules on service of summons under Rule 14 of the Rules of Court of
the Philippines apply according to the nature of the action.

An action in personam is an action against a person on the basis of his personal liability. An action in rem is an
action against the thing itself instead of against the person. An action quasi in rem is one wherein an individual is
19

named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien
burdening the property. 20

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and
decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can
be acquired by personal service of summons as provided under Section 7, Rule 14 of the Rules of Court. If he
cannot be personally served with summons within a reasonable time, substituted service may be made in
accordance with Section 8 of said Rule. If he is temporarily out of the country, any of the following modes of service
may be resorted to: (1) substituted service set forth in Section 8; (2) personal service outside the country, with
21

leave of court; (3) service by publication, also with leave of court; or (4) any other manner the court may deem
22

sufficient. 23

However, in an action in personam wherein the defendant is a non-resident who does not voluntarily submit himself
to the authority of the court, personal service of summons within the state is essential to the acquisition of
jurisdiction over her person. This method of service is possible if such defendant is physically present in the
24

country. If he is not found therein, the court cannot acquire jurisdiction over his person and therefore cannot validly
try and decide the case against him. An exception was laid down in Gemperle v. Schenker wherein a non-
25 26

resident was served with summons through his wife, who was a resident of the Philippines and who was his
representatives and attorney-in-fact in a prior civil case filed by him; moreover, the second case was a mere
offshoot of the first case.

On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Nonetheless
summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for
satisfying the due process requirements. Thus, where the defendant is a non-resident who is not found in the
27

Philippines and (1) the action affects the personal status of the plaintiff; (2) the action relates to, or the subject
matter of which is property in the Philippines in which the defendant has or claims a lien or interest; (3) the action
seeks the exclusion of the defendant from any interest in the property located in the Philippines; or (4) the property
of the defendant has been attached in the Philippines — service of summons may be effected by (a) personal
service out of the country, with leave of court; (b) publication, also with leave of court, or (c) any other manner the
court may deem sufficient. 28

In the case at bar, the action filed in Hong Kong against HERAS was in personam, since it was based on his
personal guarantee of the obligation of the principal debtor. Before we can apply the foregoing rules, we must
determine first whether HERAS was a resident of Hong Kong.

Fortunata de la Vega, HERAS's personal secretary in Hong Kong since 1972 until 1985, testified that HERAS was
29

the President and part owner of a shipping company in Hong Kong during all those times that she served as his
secretary. He had in his employ a staff of twelve. He had "business commitments, undertakings, conferences, and
30

appointments until October 1984 when [he] left Hong Kong for good," HERAS's other witness, Russel Warren
31

Lousich, testified that he had acted as counsel for HERAS "for a number of commercial matters." ASIAVEST then 32

infers that HERAS was a resident of Hong Kong because he maintained a business there.

It must be noted that in his Motion to Dismiss, as well as in his

33

Answer to ASIAVEST's complaint for the enforcement of the Hong Kong court judgment, HERAS maintained that
34

the Hong Kong court did not have jurisdiction over him because the fundamental rule is that jurisdiction in
personam over non-resident defendants, so as to sustain a money judgment, must be based upon personal service
of summons within the state which renders the judgment. 35

For its part, ASIAVEST, in its Opposition to the Motion to Dismiss contended: "The question of Hong Kong court's
36

'want of jurisdiction' is therefore a triable issue if it is to be pleaded by the defendant to 'repel' the foreign judgment.
Facts showing jurisdictional lack (e.g. that the Hong Kong suit was in personam, that defendant was not a resident
of Hong Kong when the suit was filed or that he did not voluntarily submit to the Hong Kong court's jurisdiction)
should be alleged and proved by the defendant." 37

In his Reply (to the Opposition to Motion to Dismiss), HERAS argued that the lack of jurisdiction over his person
38

was corroborated by ASIAVEST's allegation in the complaint that he "has his residence at No. 6, 1st St., New
Manila, Quezon City, Philippines." He then concluded that such judicial admission amounted to evidence that he
was and is not a resident of Hong Kong.
Significantly, in the pre-trial conference, the parties came up with stipulations of facts, among which was that "the
residence of defendant, Antonio Heras, is New Manila, Quezon City." 39

We note that the residence of HERAS insofar as the action for the enforcement of the Hong Kong court judgment is
concerned, was never in issue. He never challenged the service of summons on him through a security guard in his
Quezon City residence and through a lawyer in his office in that city. In his Motion to Dismiss, he did not question
the jurisdiction of the Philippine court over his person on the ground of invalid service of summons. What was in
issue was his residence as far as the Hong Kong suit was concerned. We therefore conclude that the stipulated fact
that HERAS "is a resident of New Manila, Quezon City, Philippines" refers to his residence at the time jurisdiction
over his person was being sought by the Hong Kong court. With that stipulation of fact, ASIAVEST cannot now claim
that HERAS was a resident of Hong Kong at the time.

Accordingly, since HERAS was not a resident of Hong Kong and the action against him was, indisputably, one in
personam, summons should have been personally served on him in Hong Kong. The extraterritorial service in the
Philippines was therefore invalid and did not confer on the Hong Kong court jurisdiction over his person. It follows
that the Hong Kong court judgment cannot be given force and effect here in the Philippines for having been
rendered without jurisdiction.

Even assuming that HERAS was formerly a resident of Hong Kong, he was no longer so in November 1984 when
the extraterritorial service of summons was attempted to be made on him. As declared by his secretary, which
statement was not disputed by ASIAVEST, HERAS left Hong Kong in October 1984 "for good." His absence in
40

Hong Kong must have been the reason why summons was not served on him therein; thus, ASIAVEST was
constrained to apply for leave to effect service in the Philippines, and upon obtaining a favorable action on the
matter, it commissioned the Sycip Salazar Hernandez & Gatmaitan law firm to serve the summons here in the
Philippines.

In Brown v. Brown, the defendant was previously a resident of the Philippines. Several days after a criminal action
41

for concubinage was filed against him, he abandoned the Philippines. Later, a proceeding quasi in rem was
instituted against him. Summons in the latter case was served on the defendant's attorney-in-fact at the latter's
address. The Court held that under the facts of the case, it could not be said that the defendant was "still a resident
of the Philippines because he ha[d] escaped to his country and [was] therefore an absentee in the Philippines." As
such, he should have been "summoned in the same manner as one who does not reside and is not found in the
Philippines."

Similarly, HERAS, who was also an absentee, should have been served with summons in the same manner as a
non-resident not found in Hong Kong. Section 17, Rule 14 of the Rules of Court providing for extraterritorial service
will not apply because the suit against him was in personam. Neither can we apply Section 18, which allows
extraterritorial service on a resident defendant who is temporarily absent from the country, because even if HERAS
be considered as a resident of Hong Kong, the undisputed fact remains that he left Hong Kong not only
"temporarily" but "for good."

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered DENYING the petition in this case and
AFFIRMING the assailed judgment of the Court of Appeals in CA-G.R. CV No. 29513.

No costs.

SO ORDERED.

Bellosillo, Vitug and Panganiban, JJ., concur.

Quisumbing, J., took no part.

- Alba vs. Court of Appeals- 465 SCRA 495

G.R. No. 164041. July 29, 2005

ROSENDO ALBA, minor, represented by his mother and natural guardian, Armi A. Alba, and ARMI A. ALBA,
in her personal capacity, Petitioners, vs.
COURT OF APPEALS and ROSENDO C. HERRERA, Respondents.

DECISION

YNARES-SANTIAGO, J.:

Assailed in this petition for certiorari1 are the February 27, 2004 decision2 and the May 14, 2004 resolution3 of the
Court of Appeals in CA-G.R. SP No. 61883, which dismissed petitioner’s original action for annulment of
judgment4 of the Regional Trial Court of Manila, Branch 37, and denied the motion for reconsideration, respectively.
The antecedent facts show that on October 21, 1996, private respondent Rosendo C. Herrera filed a petition 5 for
cancellation of the following entries in the birth certificate of "Rosendo Alba Herrera, Jr.", to wit: (1) the surname
"Herrera" as appended to the name of said child; (2) the reference to private respondent as the father of Rosendo
Alba Herrera, Jr.; and (3) the alleged marriage of private respondent to the child’s mother, Armi A. Alba (Armi) on
August 4, 1982 in Mandaluyong City. He claimed that the challenged entries are false and that it was only sometime
in September 1996 that he learned of the existence of said birth certificate.

Private respondent alleged that he married only once, i.e., on June 28, 1965 with Ezperanza C. Santos and never
contracted marriage with Armi nor fathered Rosendo Alba Herrera, Jr. In support thereof, he presented certifications
from the Civil Registrar of Mandaluyong City 6 and the National Statistics Office,7 both stating that they have no
record of marriage between private respondent and Armi.

On November 12, 1996, private respondent filed an amended petition, 8 impleading Armi and "all the persons who
have or claim any interest in th[e] petition." 9

On November 27, 1996, the trial court issued an Order setting the petition for hearing on January 24, 1997, and
directed the publication and service of said order to Armi at her address appearing in the birth certificate which is
No. 418 Arquiza St., Ermita, Manila, and to the Civil Registrar of the City of Manila and the Solicitor General. The full
text of the order, reads:

In a verified Amended Petition for Correction of Entry, the Petitioner prays, inter alia, that the following entries
appearing in the subject Certificate of Live Birth be deleted:

1. All informations having reference to him as the father of the child mentioned therein;

2. The surname "Herrera" appended to the child’s name;

3. His alleged marriage with the natural mother of the child.

Finding the Petition to be sufficient in form and substance, let the Petition be set for hearing on January 24, 1997 at
nine o’clock in the morning before this Branch at Rooms 447-449, Fourth Floor, Manila City Hall. All interested
parties are hereby notified of the said hearing and are ordered to show cause why the Petition should not be
granted.

Let a copy of this Order be published at the expense of the Petitioner, once a week for three (3) consecutive weeks,
in a newspaper of general circulation in the City of Manila, and raffled pursuant to P.D. 1079.

Furnish the Office of the Solicitor General and the Office of the Local Civil Registrar of the City of Manila with copies
of the Petition and of this Order.

Let the same be likewise furnished the Private Respondent Armi Alba Herrera at the address indicated in the subject
Certificate of Live Birth.

SO ORDERED.10

On January 13, 1997, before the scheduled January 24, 1997 hearing, the trial court issued an Amended
Order11 with substantially the same contents, except that the hearing was re-scheduled to February 26, 1997. A copy
of said Amended Order was published in "Today", a newspaper of general circulation in Manila in its January 20, 27,
and February 3, 1997 issues. Copies thereof were also sent to Armi at No. 418 Arquiza St., Ermita, Manila, on
January 17, 1997, the Local Civil Registrar of Manila and the Solicitor General.

At the scheduled hearing on February 26, 1997, the counsel from the Office of the Solicitor General appeared but
filed no opposition to the petition. Armi, on the other hand was not present. The return of the notice sent to her had
the following notation:

This is to certify that on January 17, 1997, the undersigned [process server] personally served a copy of the
Amended Order in Sp. Proc. No. 96-80512 dated January 13, 1997 to the private respondent, Armi Alba Herrera at
… 418 Arquiza St., Ermita, Manila, but failed and unavailing for reason that (sic), private respondent is no
longer residing at said given address.12

On April 1, 1997, the court a quo rendered a decision which became final and executory on June 2, 1997. 13 The
dispositive portion thereof, states:

ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court, judgment is hereby rendered ordering the
correction of the entries in the Certificate of Live Birth of Rosendo Alba Herrera, Jr., in such a way that the entry
under the name of the child, the surname Herrera, Jr.[,] is ordered deleted, and the child shall be known as
ROSENDO ALBA; and that the entry under the date and place of marriage, the date August 4, 1982, Mandaluyong,
MM is likewise ordered deleted or cancelled.
Let a copy of this Decision be furnished the Local Civil Registrar of Manila for proper correction and entry.

SO ORDERED.14

Private respondent filed a motion15 for amendment of the decretal portion of the decision to include the cancellation
of all entries having reference to him as the father of petitioner minor. This was granted in the August 11, 1997 order
of the trial court as follows:

ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court, judgment is hereby rendered ordering the
correction of the entries in the Certificate of Live Birth of Rosendo Alba Herrera, Jr., in such a way that the entries
under the name of the child, the surname Herrera, Jr., and the name of the father Rosendo Caparas Herrera are
ordered deleted, and the child shall be known as ROSENDO ALBA; and the entry under the date and place of
marriage, the date August 4, 1982, Mandaluyong, MM is likewise ordered deleted or cancelled.

SO ORDERED.16

On November 24, 2000, Armi and petitioner minor filed a petition for annulment of judgment before the Court of
Appeals on the grounds of extrinsic fraud and lack of jurisdiction over their person. She allegedly came to know of
the decision of the trial court only on February 26, 1998, when San Beda College, where her son was enrolled as a
high school student, was furnished by private respondent with a copy of a court order directing the change of
petitioner minor’s surname from Herrera to Alba.

Armi averred that private respondent was aware that her address is at Unit 302 Plaza Towers Condominium, 1175
Lorenzo Guerrero St., Ermita, Manila, because such was her residence when she and private respondent cohabited
as husband and wife from 1982 to 1988; and her abode when petitioner minor was born on March 8, 1985. Even
after their separation, private respondent continued to give support to their son until 1998; and that Unit 302 was
conveyed to her by private respondent on June 14, 1991 as part of his support to petitioner minor. According to
Armi, her address i.e., No. 418 Arquiza St., Ermita, Manila, as appearing in the birth certificate of their son, was
entered in said certificate through the erroneous information given by her sister, Corazon Espiritu. She stressed that
private respondent knew all along that No. 418 Arquiza St., is the residence of her sister and that he deliberately
caused the service of notice therein to prevent her from opposing the petition.

In his answer, private respondent denied paternity of petitioner minor and his purported cohabitation with Armi. He
branded the allegations of the latter as "false statements coming from a polluted source." 17

On February 27, 2004, the Court of Appeals dismissed the petition holding, among others, that petitioner failed to
prove that private respondent employed fraud and purposely deprived them of their day in court. It further held that
as an illegitimate child, petitioner minor should bear the surname of his mother. 18 Petitioners filed a motion for
reconsideration but was denied.

Hence, the instant petition.

Under Section 2, Rule 47 of the 1997 Revised Rules of Civil Procedure, judgments may be annulled on the grounds
of lack of jurisdiction and extrinsic fraud. 19

Whether or not the trial court acquired jurisdiction over the person of petitioner and her minor child depends on the
nature of private respondent’s action, that is, in personam, in rem or quasi in rem. An action in personam is lodged
against a person based on personal liability; an action in rem is directed against the thing itself instead of the
person; while an action quasi in rem names a person as defendant, but its object is to subject that person’s interest
in a property to a corresponding lien or obligation. 20

Hence, petitions directed against the "thing" itself or the res,21 which concerns the status of a person,22 like a petition
for adoption,23 annulment of marriage,24 or correction of entries in the birth certificate, 25 as in the instant case, are
actions in rem.

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and
decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over
the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual
custody of the law; or (b) as a result of the institution of legal proceedings, in which the power of the court is
recognized and made effective. 26 The service of summons or notice to the defendant is not for the purpose of
vesting the court with jurisdiction but merely for satisfying the due process requirements. 27

In the case at bar, the filing with the trial court of the petition for cancellation vested the latter jurisdiction over
the res. Substantial corrections or cancellations of entries in civil registry records affecting the status or legitimacy of
a person may be effected through the institution of a petition under Rule 108 of the Revised Rules of Court, with the
proper Regional Trial Court.28 Being a proceeding in rem, acquisition of jurisdiction over the person of petitioner is
therefore not required in the present case. It is enough that the trial court is vested with jurisdiction over the subject
matter.
The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof in a newspaper of
general circulation in Manila, sufficiently complied with the requirement of due process, the essence of which is an
opportunity to be heard. Said address appeared in the birth certificate of petitioner minor as the residence of Armi.
Considering that the Certificate of Birth bears her signature, the entries appearing therein are presumed to have
been entered with her approval. Moreover, the publication of the order is a notice to all indispensable parties,
including Armi and petitioner minor, which binds the whole world to the judgment that may be rendered in the
petition. An in rem proceeding is validated essentially through publication. 29 The absence of personal service of the
order to Armi was therefore cured by the trial court’s compliance with Section 4, Rule 108, which requires notice by
publication, thus:

SEC. 4. Notice and publication. – Upon the filing of the petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition.
The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.

In Barco v. Court of Appeals, the trial court granted a petition for correction/change of entries in a minor’s birth
certificate to reflect the name of the minor’s real father as well as to effect the corresponding change of her
surname. In seeking to annul said decision, the other children of the alleged father claimed that they are
indispensable parties to the petition for correction, hence, the failure to implead them is a ground to annul the
decision of the trial court. The Court of Appeals denied the petition which was sustained by this Court on the
ground, inter alia, that while petitioner is indeed an indispensable party, the failure to implead her was cured by the
publication of the order of hearing. Thus –

Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her interest was affected by the
petition for correction, as any judicial determination that June was the daughter of Armando would affect her ward’s
share in the estate of her father. It cannot be established whether Nadina knew of Mary Joy’s existence at the time
she filed the petition for correction. Indeed, doubt may always be cast as to whether a petitioner under Rule 108
would know of all the parties whose interests may be affected by the granting of a petition. For example, a petitioner
cannot be presumed to be aware of all the legitimate or illegitimate offsprings of his/her spouse or paramour. The
fact that Nadina amended her petition to implead Francisco and Gustilo indicates earnest effort on her part to
comply with Section 3 as quoted above.

Yet, even though Barco was not impleaded in the petition, the Court of Appeals correctly pointed out that the defect
was cured by compliance with Section 4, Rule 108, which requires notice by publication, thus:

Section 4. Upon the filing of the petition, the court shall, by order, fix the time and place for the hearing of the same,
and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the
order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the
province.

The purpose precisely of Section 4, Rule 108 is to bind the whole world to the subsequent judgment on the
petition. The sweep of the decision would cover even parties who should have been impleaded under
Section 3, Rule 108, but were inadvertently left out. The Court of Appeals correctly noted:

The publication being ordered was in compliance with, and borne out by the Order of January 7, 1985. The actual
publication of the September 22, 1983 Order, conferred jurisdiction upon the respondent court to try and decide the
case. While "nobody appeared to oppose the instant petition" during the December 6, 1984 hearing, that did not
divest the court from its jurisdiction over the case and of its authority to continue trying the case. For, the rule is well-
settled, that jurisdiction, once acquired continues until termination of the case.

Verily, a petition for correction is an action in rem, an action against a thing and not against a person. The decision
on the petition binds not only the parties thereto but the whole world. An in rem proceeding is validated essentially
through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely
all who might be minded to make an objection of any sort against the right sought to be established. It is the
publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to
hear and decide it.30

Furthermore, extrinsic fraud, which was private respondent’s alleged concealment of Armi’s present address, was
not proven. Extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of the trial
of the case, whereby the defeated party was prevented from presenting fully his side of the case by fraud or
deception practiced on him by the prevailing party. Here, Armi contended that private respondent is aware of her
present address because they lived together as husband and wife in the condominium unit from 1982 to 1988 and
because private respondent continued to give support to their son until 1998. To prove her claim, she presented (1)
private respondent’s title over the condominium unit; (2) receipts allegedly issued to private respondent for payment
of homeowner’s or association dues; (2) a photocopy of a January 14, 1991 deed of sale of the subject unit in favor
of Armi; and (3) the subsequent title issued to the latter. However, these documents only tend to prove private
respondent’s previous ownership of the unit and the subsequent transfer thereof to Armi, but not the claimed live-in
relationship of the parties. Neither does the sale prove that the conveyance of the unit was part of private
respondent’s support to petitioner minor. Indeed, intimate relationships and family relations cannot be inferred from
what appears to be an ordinary business transaction.

Although the January 14, 1991 deed of sale31 stated that Armi resides at 1175 L. Guerrero St., Ermita, Manila, the
same is not sufficient to prove that private respondent has knowledge of Armi’s address because the former
objected to the offer of the deed for being a mere photocopy. 32 The counsel for petitioners even admitted that they
do not have the original of the deed and that per certification of the Clerk of Court, the Notary Public who notarized
the deed of sale did not submit a copy of the notarized document as required by the rules. 33 The deed cannot thus
be the basis of ascribing knowledge of Armi’s address to private respondent inasmuch as the authenticity thereof
was neither admitted by private respondent nor proven by petitioners.

While Armi presented the alleged love letters/notes from private respondent, they were only attached as annexes to
the petition and not formally offered as evidence before the Court of Appeals. More importantly, said letters/notes do
not have probative value because they were mere photocopies and never proven to be an authentic writing of
private respondent. In the same vein, the affidavits 34 of Armi and her sister, Corazon Espiritu, are of no evidentiary
weight. The basic rule of evidence is that unless the affiants themselves are placed on the witness stand to testify
on their affidavits, such affidavits must be rejected for being hearsay. Stated differently, the declarants of written
statements pertaining to disputed facts must be presented at the trial for cross-examination. 35 Inasmuch as Armi and
her sister were not presented before the Court of Appeals to affirm the veracity of their affidavits, the same are
considered hearsay and without probative value.

Ei incumbit probotio qui dicit, non qui negat. He who asserts, not he who denies, must prove.36 Armi’s claim that
private respondent is aware of her present address is anchored on the assertion of a live-in relationship and support
to her son. Since the evidence presented by Armi is not sufficient to prove the purported cohabitation and support, it
follows that private respondent’s knowledge of Armi’s address was likewise not proven. Thus, private respondent
could not have deliberately concealed from the court that which was not shown to be known to him. The Court of
Appeals therefore correctly dismissed the petition for annulment of judgment on the ground of failure to establish
extrinsic fraud.

The proper remedy of a party aggrieved by a decision of the Court of Appeals in an action to annul a judgment of a
Regional Trial Court is a petition for review on certiorari under Rule 45 of the Revised Rules of Civil Procedure,
where only questions of law may be raised. The resort of petitioner to the instant civil action for certiorari under Rule
65 is therefore erroneous. The special civil action of certiorari will not be allowed as a substitute for failure to timely
file a petition for review under Rule 45, which should be instituted within 15 days 37 from receipt of the assailed
decision or resolution. The wrong choice of remedy thus provides another reason to dismiss this petition. 38

Finally, petitioner failed to establish the merits of her petition to annul the trial court’s decision. In an action for
annulment of judgment, the petitioner must convince the court that something may indeed be achieved should the
assailed decision be annulled.39 Under Article 17640 of the Family Code as amended by Republic Act (RA) No. 9255,
which took effect on March 19, 2004, illegitimate children shall use the surname of their mother, unless their father
recognizes their filiation, in which case they may bear the father’s surname. In Wang v. Cebu Civil Registrar,41 it was
held that an illegitimate child whose filiation is not recognized by the father, bears only a given name and his
mother’s surname. The name of the unrecognized illegitimate child identifies him as such. It is only when said child
is recognized that he may use his father’s surname, reflecting his status as an acknowledged illegitimate child.

In the present case, it is clear from the allegations of Armi that petitioner minor is an illegitimate child because she
was never married to private respondent. Considering that the latter strongly asserts that he is not the father of
petitioner minor, the latter is therefore an unrecognized illegitimate child. As such, he must bear the surname of his
mother.

In sum, the substantive and procedural aspects of the instant controversy do not warrant the annulment of the trial
court’s decision.

WHEREFORE, the petition is DISMISSED. The February 27, 2004 decision and the May 14, 2004 resolution of the
Court of Appeals in CA-G.R. SP No. 61883 are AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Carpio, and Azcuna, JJ., concur.

Contents of Summons (Sec. 2)

Who may serve summon (Sec. 3)
How summons is served (Sec. 5, 6, 7, 8,9, 10, 11, 12)
Service upon foreign private juridical entities (Sec. 14)
Concept of “doing business” in the Phils.
- MR Holdings v. Bajar GR No. 138104 (380 SCRA 617)

G.R. No. 138104 April 11, 2002

MR HOLDINGS, LTD., petitioner, vs.
SHERIFF CARLOS P. BAJAR, SHERIFF FERDINAND M. JANDUSAY, SOLIDBANK CORPORATION, AND
MARCOPPER MINING CORPORATION, respondents.

SANDOVAL-GUTIERREZ, J.:

In the present Petition for Review on Certiorari, petitioner MR Holdings, Ltd. assails the a) Decision dated January
1

8, 1999 of the Court of Appeals in CA-G.R. SP No. 49226 finding no grave abuse of discretion on the part of Judge
Leonardo P. Ansaldo of the Regional Trial Court (RTC), Branch 94, Boac, Marinduque, in denying petitioner’s
application for a writ of preliminary injunction; and b) Resolution dated March 29, 1999 denying petitioner’s motion
2 3

for reconsideration.

The facts of the case are as follows:

Under a "Principal Loan Agreement" and "Complementary Loan Agreement," both dated November 4, 1992, Asian
4 5

Development Bank (ADB), a multilateral development finance institution, agreed to extend to Marcopper Mining
Corporation (Marcopper) a loan in the aggregate amount of US$40,000,000.00 to finance the latter’s mining project
at Sta. Cruz, Marinduque. The principal loan of US$ 15,000,000.00 was sourced from ADB’s ordinary capital
resources, while the complementary loan of US$ 25,000,000.00 was funded by the Bank of Nova Scotia, a
participating finance institution.

On even date, ADB and Placer Dome, Inc., (Placer Dome), a foreign corporation which owns 40% of Marcopper,
executed a "Support and Standby Credit Agreement" whereby the latter agreed to provide Marcopper with cash flow
support for the payment of its obligations to ADB.

To secure the loan, Marcopper executed in favor of ADB a "Deed of Real Estate and Chattel Mortgage" dated6

November 11, 1992, covering substantially all of its (Marcopper’s) properties and assets in Marinduque. It was
registered with the Register of Deeds on November 12, 1992.

When Marcopper defaulted in the payment of its loan obligation, Placer Dome, in fulfillment of its undertaking under
the "Support and Standby Credit Agreement," and presumably to preserve its international credit standing, agreed to
have its subsidiary corporation, petitioner MR Holding, Ltd., assumed Marcopper’s obligation to ADB in the amount
of US$ 18,453,450.02. Consequently, in an "Assignment Agreement" dated March 20, 1997, ADB assigned to
7

petitioner all its rights, interests and obligations under the principal and complementary loan agreements, ("Deed of
Real Estate and Chattel Mortgage," and "Support and Standby Credit Agreement"). On December 8, 1997,
Marcopper likewise executed a "Deed of Assignment" in favor of petitioner. Under its provisions, Marcopper
8

assigns, transfers, cedes and conveys to petitioner, its assigns and/or successors-in-interest all of its (Marcopper’s)
properties, mining equipment and facilities, to wit:

Land and Mining Rights

Building and Other Structures

Other Land Improvements

Machineries & Equipment, and Warehouse Inventory

Mine/Mobile Equipment

Transportation Equipment and Furniture & Fixtures

Meanwhile, it appeared that on May 7, 1997, Solidbank Corporation (Solidbank) obtained a Partial
Judgment against Marcopper from the RTC, Branch 26, Manila, in Civil Case No. 96-80083 entitled "Solidbank
9

Corporation vs. Marcopper Mining Corporation, John E. Loney, Jose E. Reyes and Teodulo C. Gabor, Jr.," the
decretal portion of which reads:

"WHEREFORE, PREMISES CONSIDERED, partial judgment is hereby rendered ordering defendant

Marcopper Mining Corporation, as follows:

1. To pay plaintiff Solidbank the sum of Fifty Two Million Nine Hundred Seventy Thousand Pesos
Seven Hundred Fifty Six and 89/100 only (PHP 52,970,756.89), plus interest and charges until fully
paid;

2. To pay an amount equivalent to Ten Percent (10%) of above-stated amount as attorney’s fees;
and

3. To pay the costs of suit.

 "SO ORDERED."

Upon Solidbank’s motion, the RTC of Manila issued a writ of execution pending appeal directing Carlos P. Bajar,
respondent sheriff, to require Marcopper "to pay the sums of money to satisfy the Partial Judgment." Thereafter,
10

respondent Bajar issued two notices of levy on Marcopper’s personal and real properties, and over all its stocks of
scrap iron and unserviceable mining equipment. Together with sheriff Ferdinand M. Jandusay (also a respondent)
11

of the RTC, Branch 94, Boac, Marinduque, respondent Bajar issued two notices setting the public auction sale of the
levied properties on August 27, 1998 at the Marcopper mine site. 12

Having learned of the scheduled auction sale, petitioner served an "Affidavit of Third-Party Claim" upon respondent
13

sheriffs on August 26, 1998, asserting its ownership over all Marcopper’s mining properties, equipment and facilities
by virtue of the "Deed of Assignment."

Upon the denial of its "Affidavit of Third–Party Claim" by the RTC of Manila, petitioner commenced with the RTC of
14

Boac, Marinduque, presided by Judge Leonardo P. Ansaldo, a complaint for reivindication of properties, etc., with
prayer for preliminary injunction and temporary restraining order against respondents Solidbank, Marcopper, and
sheriffs Bajar and Jandusay. The case was docketed as Civil Case No. 98-13.
15

In an Order dated October 6, 1998, Judge Ansaldo denied petitioner’s application for a writ of preliminary injunction
16

on the ground that a) petitioner has no legal capacity to sue, it being a foreign corporation doing business in the
Philippines without license; b) an injunction will amount "to staying the execution of a final judgment by a court of co-
equal and concurrent jurisdiction;" and c) the validity of the "Assignment Agreement" and the "Deed of Assignment"
has been "put into serious question by the timing of their execution and registration."

Unsatisfied, petitioner elevated the matter to the Court of Appeals on a Petition for Certiorari, Prohibition and
Mandamus, docketed therein as CA-G.R. SP No. 49226. On January 8, 1999, the Court of Appeals rendered a
Decision holding that Judge Ansaldo did not commit grave abuse of discretion in denying petitioner’s prayer for a
writ of preliminary injunction, ratiocinating as follows:

"Petitioner contends that it has the legal capacity to sue and seek redress from Philippine courts as it is a
non-resident foreign corporation not doing business in the Philippines and suing on isolated transactions.

xxx xxx

"We agree with the finding of the respondent court that petitioner is not suing on an isolated transaction as it
claims to be, as it is very obvious from the deed of assignment and its relationships with Marcopper and
Placer Dome, Inc. that its unmistakable intention is to continue the operations of Marcopper and shield its
properties/assets from the reach of legitimate creditors, even those holding valid and executory court
judgments against it. There is no other way for petitioner to recover its huge financial investments which it
poured into Marcopper’s rehabilitation and the local situs where the Deeds of Assignment were executed,
without petitioner continuing to do business in the country.

xxx xxx

"While petitioner may just be an assignee to the Deeds of Assignment, it may still fall within
the meaning of "doing business" in light of the Supreme Court ruling in the case of Far East
International Import and Export Corporation vs. Nankai Kogyo Co., 6 SCRA 725, that:

‘Where a single act or transaction however is not merely incidental or casual but indicates the
foreign corporation’s intention to do other business in the Philippines, said single act or transaction
constitutes doing or engaging in or transacting business in the Philippines.’

"Furthermore, the court went further by declaring that even a single act may constitute doing
business if it is intended to be the beginning of a series of transactions. (Far East International
Import and Export Corporation vs. Nankai Kogyo Co. supra).

"On the issue of whether petitioner is the bona fide owner of all the mining facilities and equipment of
Marcopper, petitioner relies heavily on the Assignment Agreement allegedly executed on March 20, 1997
wherein all the rights and interest of Asian Development Bank (ADB) in a purported Loan Agreement were
ceded and transferred in favor of the petitioner as assignee, in addition to a subsequent Deed of Assignment
dated December 28, 1997 conveying absolutely all the properties, mining equipment and facilities of
Marcopper in favor of petitioner.

"The Deeds of Assignment executed in favor of petitioner cannot be binding on the judgment creditor,
private respondent Solidbank, under the general legal principle that contracts can only bind the parties who
had entered into it, and it cannot favor or prejudice a third person (Quano vs. Court of Appeals, 211 SCRA
40). Moreover, by express stipulation, the said deeds shall be governed, interpreted and construed in
accordance with laws of New York. 1âwphi1.nêt
 "The Deeds of Assignment executed by Marcopper, through its President, Atty. Teodulo C. Gabor,
Jr., were clearly made in bad faith and in fraud of creditors, particularly private respondent
Solidbank. The first Assignment Agreement purportedly executed on March 20, 1997 was entered
into after Solidbank had filed on September 19, 1996 a case against Marcopper for collection of sum
of money before Branch 26 of the Regional Trial Court docketed as Civil Case No. 96-80083. The
second Deed of Assignment purportedly executed on December 28, 1997 was entered into by
President Gabor after Solidbank had filed its Motion for Partial Summary Judgment, after the
rendition by Branch 26 of the Regional Trial Court of Manila of a Partial Summary Judgment and
after the said trial court had issued a writ of execution, and which judgment was later affirmed by the
Court of Appeals. While the assignments (which were not registered with the Registry of Property as
required by Article 1625 of the new Civil Code) may be valid between the parties thereof, it produces no
effect as against third parties. The purported execution of the Deeds of Assignment in favor of petitioner was
in violation of Article 1387 of the New Civil Code x x x." (Emphasis Supplied)

Hence, the present Petition for Review on Certiorari by MR Holdings, Ltd. moored on the following grounds:

"A. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN COMPLETELY

DISREGARDING AS A MATERIAL FACT OF THE CASE THE EXISTENCE OF THE PRIOR,
REGISTERED 1992 DEED OF REAL ESTATE AND CHATTEL MORTGAGE CREATING A LIEN OVER
THE LEVIED PROPERTIES, SUBJECT OF THE ASSIGNMENT AGREEMENT DATED MARCH 20, 1997,
THUS, MATERIALLY CONTRIBUTING TO THE SAID COURT’S MISPERCEPTION AND
MISAPPRECIATION OF THE MERITS OF PETITIONER’S CASE.

B. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN MAKING A

FACTUAL FINDING THAT THE SAID ASSIGNMENT AGREEMENT IS NOT REGISTERED, THE SAME
BEING CONTRARY TO THE FACTS ON RECORD, THUS, MATERIALLY CONTRIBUTING TO THE SAID
COURT’S MISPERCEPTION AND MISAPPRECIATION OF THE MERITS OF PETITIONER’S CASE.

C. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN MAKING A

FACTUAL FINDING ON THE EXISTENCE OF AN ATTACHMENT ON THE PROPERTIES SUBJECT OF
INSTANT CASE, THE SAME BEING CONTRARY TO THE FACTS ON RECORD, THUS, MATERIALLY
CONTRIBUTING TO THE SAID COURT’S MISPERCEPTION AND MISAPPRECIATION OF THE MERITS
OF PETITIONER’S CASE.

D. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN HOLDING THAT

THE SAID ASSIGNMENT AGREEMENT AND THE DEED OF ASSIGNMENT ARE NOT BINDING ON
RESPONDENT SOLIDBANK WHO IS NOT A PARTY THERETO, THE SAME BEING CONTRARY TO
LAW AND ESTABLISHED JURISPRUDENCE ON PRIOR REGISTERED MORTGAGE LIENS AND ON
PREFERENCE OF CREDITS.

E. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN FINDING THAT THE
AFOREMENTIONED ASSIGNMENT AGREEMENT AND DEED OF ASSIGNMENT ARE SHAM,
SIMULATED, OF DUBIOUS CHARACTER, AND WERE MADE IN BAD FAITH AND IN FRAUD OF
CREDITORS, PARTICULARLY RESPONDENT SOLIDBANK, THE SAME BEING IN COMPLETE
DISREGARD OF, VIZ: (1) THE LAW AND ESTABLISHED JURISPRUDENCE ON PRIOR, REGISTERED
MORTGAGE LIENS AND ON PREFERENCE OF CREDITS, BY REASON OF WHICH THERE EXISTS NO
CAUSAL CONNECTION BETWEEN THE SAID CONTRACTS AND THE PROCEEDINGS IN CIVIL CASE
NO. 96-80083; (2) THAT THE ASIAN DEVELOPMENT BANK WILL NOT OR COULD NOT HAVE
AGREED TO A SHAM; SIMULATED, DUBIOUS AND FRAUDULENT TRANSACTION; AND (3) THAT
RESPONDENT SOLIDBANK’S BIGGEST STOCKHOLDER, THE BANK OF NOVA SCOTIA, WAS A
MAJOR BENEFICIARY OF THE ASSIGNMENT AGREEMENT IN QUESTION.

F. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN HOLDING THAT

PETITIONER IS WITHOUT LEGAL CAPACITY TO SUE AND SEEK REDRESS FROM PHILIPPINE
COURTS, IT BEING THE CASE THAT SECTION 133 OF THE CORPORATION CODE IS WITHOUT
APPLICATION TO PETITIONER, AND IT BEING THE CASE THAT THE SAID COURT MERELY RELIED
ON SURMISES AND CONJECTURES IN OPINING THAT PETITIONER INTENDS TO DO BUSINESS IN
THE PHILIPPINES.

G. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN HOLDING THAT

RESPONDENT MARCOPPER, PLACER DOME, INC., AND PETITIONER ARE ONE AND THE SAME
ENTITY, THE SAME BEING WITHOUT FACTUAL OR LEGAL BASIS.

H. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN HOLDING

PETITIONER GUILTY OF FORUM SHOPPING, IT BEING CLEAR THAT NEITHER LITIS
PENDENTIA NOR RES JUDICATA MAY BAR THE INSTANT REIVINDICATORY ACTION, AND IT
BEING CLEAR THAT AS THIRD-PARTY CLAIMANT, THE LAW AFFORDS PETITIONER THE RIGHT TO
FILE SUCH REIVINDICATORY ACTION.
 I. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN RENDERING A
DECISION WHICH IN EFFECT SERVES AS JUDGMENT ON THE MERITS OF THE CASE.

J. THE SHERIFF’S LEVY AND SALE, THE SHERIFF’S CERTIFICATE OF SALE DATED OCTOBER 12,
1998, THE RTC-MANILA ORDER DATED FEBRUARY 12, 1999, AND THE RTC-BOAC ORDER DATED
NOVEMBER 25, 1998 ARE NULL AND VOID.

K. THE HONORABLE COURT OF APPEALS COMMITS A REVERSIBLE ERROR IN AFFIRMING THE

DENIAL BY THE RTC-BOAC OF PETITIONER’S APPLICATION FOR PRELIMINARY INJUNCTION, THE
SAME BEING IN TOTAL DISREGARD OF PETITIONER’S RIGHT AS ASSIGNEE OF A PRIOR,
REGISTERED MORTGAGE LIEN, AND IN DISREGARD OF THE LAW AND JURISPRUDENCE ON
PREFERENCE OF CREDIT."

In its petition, petitioner alleges that it is not "doing business" in the Philippines and characterizes its participation in
the assignment contracts (whereby Marcopper’s assets where transferred to it) as mere isolated acts that cannot
foreclose its right to sue in local courts. Petitioner likewise maintains that the two assignment contracts, although
executed during the pendency of Civil Case No. 96-80083 in the RTC of Manila, are not fraudulent conveyances as
they were supported by valuable considerations. Moreover, they were executed in connection with prior transactions
that took place as early as 1992 which involved ADB, a reputable financial institution. Petitioner further claims that
when it paid Marcopper’s obligation to ADB, it stepped into the latter’s shoes and acquired its (ADB’S) rights, titles,
and interests under the "Deed of Real Estate and Chattel Mortgage." Lastly, petitioner asserts its existence as a
corporation, separate and distinct from Placer Dome and Marcopper.

In its comment, Solidbank avers that: a) petitioner is "doing business" in the Philippines and this is evidenced by the
"huge investment" it poured into the assignment contracts; b) granting that petitioner is not doing business in the
Philippines, the nature of its transaction reveals an "intention to do business" or "to begin a series of transaction" in
the country; c) petitioner, Marcopper and Placer Dome are one and the same entity, petitioner being then a wholly-
owned subsidiary of Placer Dome, which, in turn, owns 40% of Marcopper; d) the timing under which the
assignments contracts were executed shows that petitioner’s purpose was to defeat any judgment favorable to it
(Solidbank); and e) petitioner violated the rule on forum shopping since the object of Civil Case No. 98-13 (at RTC,
Boac, Marinduque) is similar to the other cases filed by Marcopper in order to forestall the sale of the levied
properties.

Marcopper, in a separate comment, states that it is merely a nominal party to the present case and that its principal
concerns are being ventilated in another case.

The petition is impressed with merit.

Crucial to the outcome of this case is our resolution of the following issues: 1) Does petitioner have the legal
capacity to sue? 2) Was the Deed of Assignment between Marcopper and petitioner executed in fraud of
creditors? 3) Are petitioner MR Holdings, Ltd., Placer Dome, and Marcopper one and the same entity? and 4) Is
petitioner guilty of forum shopping?

We shall resolve the issues in seriatim.

The Court of Appeals ruled that petitioner has no legal capacity to sue in the Philippine courts because it is a foreign
corporation doing business here without license. A review of this ruling does not pose much complexity as the
principles governing a foreign corporation’s right to sue in local courts have long been settled by our Corporation
Law. These principles may be condensed in three statements, to wit: a) if a foreign corporation does business in
17

the Philippines without a license, it cannot sue before the Philippine courts; b) if a foreign corporation is not
18

doing business in the Philippines, it needs no license to sue before Philippine courts on an isolated
transaction or on a cause of action entirely independent of any business transaction; and c) if a foreign
19 20

corporation does business in the Philippines with the required license, it can sue before Philippine courts on any
transaction. Apparently, it is not the absence of the prescribed license but the "doing (of) business" in the Philippines
without such license which debars the foreign corporation from access to our courts. 21

The task at hand requires us to weigh the facts vis-à-vis the established principles. The question whether or not a
foreign corporation is doing business is dependent principally upon the facts and circumstances of each particular
case, considered in the light of the purposes and language of the pertinent statute or statutes involved and of the
general principles governing the jurisdictional authority of the state over such corporations. 22

Batas Pambansa Blg. 68, otherwise known as "The Corporation Code of the Philippines," is silent as to what
constitutes doing" or "transacting" business in the Philippines. Fortunately, jurisprudence has supplied the deficiency
and has held that the term "implies a continuity of commercial dealings and arrangements, and contemplates, to that
extent, the performance of acts or works or the exercise of some of the functions normally incident to, and in
progressive prosecution of, the purpose and object for which the corporation was organized." In Mentholatum Co.
23
Inc., vs. Mangaliman, this Court laid down the test to determine whether a foreign company is "doing business,"
24

thus:

" x x x The true test, however, seems to be whether the foreign corporation is continuing the body or
substance of the business or enterprise for which it was organized or whether it has substantially
retired from it and turned it over to another. (Traction Cos. vs. Collectors of Int. Revenue [C.C.A., Ohio],
223 F. 984,987.) x x x."

The traditional case law definition has metamorphosed into a statutory definition, having been adopted with some
qualifications in various pieces of legislation in our jurisdiction. For instance, Republic Act No. 7042, otherwise
known as the "Foreign Investment Act of 1991," defines "doing business" as follows:

"d) The phrase ‘doing business’ shall include soliciting orders, service contracts, opening offices, whether
called ‘liaison’ offices or branches; appointing representatives or distributors domiciled in the Philippines or
who in any calendar year stay in the country for a period or periods totalling one hundred eight(y) (180) days
or more; participating in the management, supervision or control of any domestic business, firm, entity, or
corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings
or arrangements, and contemplate to that extent the performance of acts or works; or the exercise of
some of the functions normally incident to, and in progressive prosecution of, commercial gain or of
the purpose and object of the business organization; Provided, however, That the phrase ‘doing
business’ shall not be deemed to include mere investment as a shareholder by a foreign entity in domestic
corporations duly registered to do business, and/or the exercise of rights as such investor, nor having a
nominee director or officer to represent its interests in such corporation, nor appointing a representative or
distributor domiciled in the Philippines which transacts business in its own name and for its own account."
(Emphasis supplied) 25

Likewise, Section 1 of Republic Act No. 5455, provides that:

26

"SECTION. 1. Definition and scope of this Act. - (1) x x x the phrase ‘doing business’ shall include soliciting
orders, purchases, service contracts, opening offices, whether called ‘liaison’ offices or branches; appointing
representatives or distributors who are domiciled in the Philippines or who in any calendar year stay in the
Philippines for a period or periods totaling one hundred eighty days or more; participating in the
management, supervision or control of any domestic business firm, entity or corporation in the Philippines;
and any other act or acts that imply a continuity of commercial dealings or arrangements, and
contemplate to that extent the performance of acts or works, or the exercise of some of the
functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose
and object of the business organization."

There are other statutes defining the term "doing business" in the same tenor as those above-quoted, and as may
27

be observed, one common denominator among them all is the concept of "continuity."

In the case at bar, the Court of Appeals categorized as "doing business" petitioner’s participation under the
"Assignment Agreement" and the "Deed of Assignment." This is simply untenable. The expression "doing business"
should not be given such a strict and literal construction as to make it apply to any corporate dealing whatever. At
28

this early stage and with petitioner’s acts or transactions limited to the assignment contracts, it cannot be said that it
had performed acts intended to continue the business for which it was organized. It may not be amiss to point out
that the purpose or business for which petitioner was organized is not discernible in the records. No effort
was exerted by the Court of Appeals to establish the nexus between petitioner’s business and the acts
supposed to constitute "doing business." Thus, whether the assignment contracts were incidental to
petitioner’s business or were continuation thereof is beyond determination. We cannot apply the case cited by
the Court of Appeals, Far East Int’l Import and Export Corp. vs. Nankai Kogyo Co., Ltd., which held that a single act
29

may still constitute "doing business" if "it is not merely incidental or casual, but is of such character as distinctly to
indicate a purpose on the part of the foreign corporation to do other business in the state." In said case, there was
an express admission from an official of the foreign corporation that he was sent to the Philippines to look into the
operation of mines, thereby revealing the foreign corporation’s desire to continue engaging in business here. But in
the case at bar, there is no evidence of similar desire or intent. Unarguably, petitioner may, as the Court of
Appeals suggested, decide to operate Marcopper’s mining business, but, of course, at this stage, that is a mere
speculation. Or it may decide to sell the credit secured by the mining properties to an offshore investor, in which
case the acts will still be isolated transactions. To see through the present facts an intention on the part of
petitioner to start a series of business transaction is to rest on assumptions or probabilities falling short of
actual proof. Courts should never base its judgments on a state of facts so inadequately developed that it
cannot be determined where inference ends and conjecture begins.

Indeed, the Court of Appeals’ holding that petitioner was determined to be "doing business" in the Philippines is
based mainly on conjectures and speculation. In concluding that the "unmistakable intention" of petitioner is to
continue Marcopper’s business, the Court of Appeals hangs on the wobbly premise that "there is no other way for
petitioner to recover its huge financial investments which it poured into Marcopper’s rehabilitation without it
(petitioner) continuing Marcopper’s business in the country." This is a mere presumption. Absent overt acts of
30

petitioner from which we may directly infer its intention to continue Marcopper’s business, we cannot give our
concurrence. Significantly, a view subscribed upon by many authorities is that the mere ownership by a foreign
corporation of a property in a certain state, unaccompanied by its active use in furtherance of the business for
which it was formed, is insufficient in itself to constitute doing business. In Chittim vs. Belle Fourche Bentonite
31

Products Co., it was held that even if a foreign corporation purchased and took conveyances of a mining
32

claim, did some assessment work thereon, and endeavored to sell it, its acts will not constitute the doing of
business so as to subject the corporation to the statutory requirements for the transacting of business. On
the same vein, petitioner, a foreign corporation, which becomes the assignee of mining properties, facilities and
equipment cannot be automatically considered as doing business, nor presumed to have the intention of engaging
in mining business.

One important point. Long before petitioner assumed Marcopper’s debt to ADB and became their assignee under
the two assignment contracts, there already existed a "Support and Standby Credit Agreement" between ADB and
Placer Dome whereby the latter bound itself to provide cash flow support for Marcopper’s payment of its obligations
to ADB. Plainly, petitioner’s payment of US$ 18,453,450.12 to ADB was more of a fulfillment of an obligation under
the "Support and Standby Credit Agreement" rather than an investment. That petitioner had to step into the shoes of
ADB as Marcopper’s creditor was just a necessary legal consequence of the transactions that transpired. Also, we
must hasten to add that the "Support and Standby Credit Agreement" was executed four (4) years prior to
Marcopper’s insovency, hence, the alleged "intention of petitioner to continue Marcopper’s business" could have
no basis for at that time, Marcopper’s fate cannot yet be determined.

In the final analysis, we are convinced that petitioner was engaged only in isolated acts or transactions. Single or
isolated acts, contracts, or transactions of foreign corporations are not regarded as a doing or carrying on of
business. Typical examples of these are the making of a single contract, sale, sale with the taking of a note and
mortgage in the state to secure payment therefor, purchase, or note, or the mere commission of a tort. In these
33

instances, there is no purpose to do any other business within the country.

II

Solidbank contends that from the chronology and timing of events, it is evident that there existed a pre-set pattern of
response on the part of Marcopper to defeat whatever court ruling that may be rendered in favor of Solidbank.

We are not convinced.

While it may appear, at initial glance, that the assignment contracts are in the nature of fraudulent conveyances,
however, a closer look at the events that transpired prior to the execution of those contracts gives rise to a different
conclusion. The obvious flaw in the Court of Appeals’ Decision lies in its constricted view of the facts obtaining in the
case. In its factual narration, the Court of Appeals definitely left out some events. We shall see later the significance
of those events.

Article 1387 of the Civil Code of the Philippines provides:

"Art. 1387. All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to
have been entered into in fraud of creditors, when the donor did not reserve sufficient property to pay all
debts contracted before the donation.

Alienations by onerous title are also presumed fraudulent when made by persons against whom
some judgment has been rendered in any instance or some writ of attachment has been issued. The
decision or attachment need not refer to the property alienated, and need not have been obtained by
the party seeking rescission.

In addition to these presumptions, the design to defraud creditors may be proved in any other manner
recognized by law and of evidence.

This article presumes the existence of fraud made by a debtor. Thus, in the absence of satisfactory evidence to the
contrary, an alienation of a property will be held fraudulent if it is made after a judgment has been rendered against
the debtor making the alienation. This presumption of fraud is not conclusive and may be rebutted by satisfactory
34

and convincing evidence. All that is necessary is to establish affirmatively that the conveyance is made in
good faith and for a sufficient and valuable consideration. 35

The "Assignment Agreement" and the "Deed of Assignment" were executed for valuable considerations. Patent from
the "Assignment Agreement" is the fact that petitioner assumed the payment of US$ 18,453,450.12 to ADB in
satisfaction of Marcopper’s remaining debt as of March 20, 1997. Solidbank cannot deny this fact considering that a
36

substantial portion of the said payment, in the sum of US$ 13,886,791.06, was remitted in favor of the Bank of Nova
Scotia, its major stockholder.37

The facts of the case so far show that the assignment contracts were executed in good faith. The execution of the
"Assignment Agreement" on March 20, 1997 and the "Deed of Assignment" on December 8,1997 is not the alpha of
this case. While the execution of these assignment contracts almost coincided with the rendition on May 7, 1997 of
the Partial Judgment in Civil Case No. 96-80083 by the Manila RTC, however, there was no intention on the part of
petitioner to defeat Solidbank’s claim. It bears reiterating that as early as November 4, 1992, Placer Dome had
already bound itself under a "Support and Standby Credit Agreement" to provide Marcopper with cash flow support
for the payment to ADB of its obligations. When Marcopper ceased operations on account of disastrous mine
tailings spill into the Boac River and ADB pressed for payment of the loan, Placer Dome agreed to have its
subsidiary, herein petitioner, paid ADB the amount of US $18,453,450.12. Thereupon, ADB and Marcopper
executed, respectively, in favor of petitioner an "Assignment Agreement" and a "Deed of Assignment." Obviously,
the assignment contracts were connected with transactions that happened long before the rendition in 1997 of the
Partial Judgment in Civil Case No. 96-80083 by the Manila RTC. Those contracts cannot be viewed in isolation. If
we may add, it is highly inconceivable that ADB, a reputable international financial organization, will connive with
Marcopper to feign or simulate a contract in 1992 just to defraud Solidbank for its claim four years thereafter. And it
is equally incredible for petitioner to be paying the huge sum of US $ 18,453,450.12 to ADB only for the purpose of
defrauding Solidbank of the sum of ₱52,970,756.89.

It is said that the test as to whether or not a conveyance is fraudulent is -- does it prejudice the rights of creditors?
38
We cannot see how Solidbank’s right was prejudiced by the assignment contracts considering that substantially all
of Marcopper’s properties were already covered by the registered "Deed of Real Estate and Chattel Mortgage"
executed by Marcopper in favor of ADB as early as November 11, 1992. As such, Solidbank cannot assert a better
right than ADB, the latter being a preferred creditor. It is basic that mortgaged properties answer primarily for the
mortgaged credit, not for the judgment credit of the mortgagor’s unsecured creditor. Considering that petitioner
assumed Marcopper’s debt to ADB, it follows that Solidbank’s right as judgment creditor over the subject properties
must give way to that of the former. 1âwphi1.nêt

III

The record is lacking in circumstances that would suggest that petitioner corporation, Placer Dome and Marcopper
are one and the same entity. While admittedly, petitioner is a wholly-owned subsidiary of Placer Dome, which in
turn, which, in turn, was then a minority stockholder of Marcopper, however, the mere fact that a corporation
owns all of the stocks of another corporation, taken alone is not sufficient to justify their being treated as
one entity. If used to perform legitimate functions, a subsidiary’s separate existence shall be respected, and the
liability of the parent corporation as well as the subsidiary will be confined to those arising in their respective
business. 39

The recent case of Philippine National Bank vs. Ritratto Group Inc., outlines the circumstances which are useful in
40

the determination of whether a subsidiary is but a mere instrumentality of the parent-corporation, to wit:

(a) The parent corporation owns all or most of the capital stock of the subsidiary.

(b) The parent and subsidiary corporations have common directors or officers.

(c) The parent corporation finances the subsidiary.

(d) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its
incorporation.

(e) The subsidiary has grossly inadequate capital.

(f) The parent corporation pays the salaries and other expenses or losses of the subsidiary.

(g) The subsidiary has substantially no business except with the parent corporation or no assets except
those conveyed to or by the parent corporation.

(h) In the papers of the parent corporation or in the statements of its officers, the subsidiary is described as
a department or division of the parent corporation, or its business or financial responsibility is referred to as
the parent corporation’s own.

(i) The parent corporation uses the property of the subsidiary as its own.

(j) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary, but
take their orders from the parent corporation.

(k) The formal legal requirements of the subsidiary are not observed.

In this catena of circumstances, what is only extant in the records is the matter of stock ownership. There
are no other factors indicative that petitioner is a mere instrumentality of Marcopper or Placer Dome. The
mere fact that Placer Dome agreed, under the terms of the "Support and Standby Credit Agreement" to provide
Marcopper with cash flow support in paying its obligations to ADB, does not mean that its personality has merged
with that of Marcopper. This singular undertaking, performed by Placer Dome with its own stockholders in Canada
and elsewhere, is not a sufficient ground to merge its corporate personality with Marcopper which has its own set of
shareholders, dominated mostly by Filipino citizens. The same view applies to petitioner’s payment of Marcopper’s
remaining debt to ADB.

With the foregoing considerations and the absence of fraud in the transaction of the three foreign corporations, we
find it improper to pierce the veil of corporate fiction – that equitable doctrine developed to address situations where
the corporate personality of a corporation is abused or used for wrongful purposes.

IV

On the issue of forum shopping, there could have been a violation of the rules thereon if petitioner and Marcopper
were indeed one and the same entity. But since petitioner has a separate personality, it has the right to pursue its
third-party claim by filing the independent reivindicatory action with the RTC of Boac, Marinduque, pursuant to Rule
39, Section 16 of the 1997 Rules of Civil Procedures. This remedy has been recognized in a long line of cases
decided by this Court. In Rodriguez vs. Court of Appeals, we held:
41 42

". . . It has long been settled in this jurisdiction that the claim of ownership of a third party over properties
levied for execution of a judgment presents no issue for determination by the court issuing the writ of
execution.

. . .Thus, when a property levied upon by the sheriff pursuant to a writ of execution is claimed by third person
in a sworn statement of ownership thereof, as prescribed by the rules, an entirely different matter calling
for a new adjudication arises. And dealing as it does with the all important question of title, it is reasonable
to require the filing of proper pleadings and the holding of a trial on the matter in view of the requirements of
due process.

. . . In other words, construing Section 17 of Rule 39 of the Revised Rules of Court (now Section 16 of the
1997 Rules of Civil Procedure), the rights of third-party claimants over certain properties levied upon by the
sheriff to satisfy the judgment may not be taken up in the case where such claims are presented but in a
separate and independent action instituted by the claimants." (Emphasis supplied)

This "reivindicatory action" has for its object the recovery of ownership or possession of the property seized by the
sheriff, despite the third party claim, as well as damages resulting therefrom, and it may be brought against the
sheriff and such other parties as may be alleged to have connived with him in the supposedly wrongful execution
proceedings, such as the judgment creditor himself. Such action is an entirely separate and distinct action from
that in which execution has been issued. Thus, there being no identity of parties and cause of action between
Civil Case No. 98-13 (RTC, Boac) and those cases filed by Marcopper, including Civil Case No. 96-80083 (RTC,
Manila) as to give rise to res judicata or litis pendentia, Solidbank’s allegation of forum-shopping cannot prosper. 43

All considered, we find petitioner to be entitled to the issuance of a writ of preliminary injunction. Section 3, Rule 58
of the 1997 Rules of Civil Procedure provides:

"SEC. 3 Grounds for issuance of preliminary injunction. – A preliminary injunction may be granted when it is
established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in
restraining the commission or continuance of the act or acts complained of, or in requiring the performance
of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the acts or acts complained of during the
litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render the judgment ineffectual."

Petitioner’s right to stop the further execution of the properties covered by the assignment contracts is clear under
the facts so far established. An execution can be issued only against a party and not against one who did not have
his day in court. The duty of the sheriff is to levy the property of the judgment debtor not that of a third person. For,
44

as the saying goes, one man’s goods shall not be sold for another man's debts. To allow the execution of
45

petitioner’s properties would surely work injustice to it and render the judgment on the reivindicatory action, should it
be favorable, ineffectual. In Arabay, Inc., vs. Salvador, this Court held that an injunction is a proper remedy to
46

prevent a sheriff from selling the property of one person for the purpose of paying the debts of another; and that
while the general rule is that no court has authority to interfere by injunction with the judgments or decrees of
another court of equal or concurrent or coordinate jurisdiction, however, it is not so when a third-party claimant is
involved. We quote the instructive words of Justice Querube C. Makalintal in Abiera vs. Court of Appeals, thus: 47

"The rationale of the decision in the Herald Publishing Company case is peculiarly applicable to the one
48

before Us, and removes it from the general doctrine enunciated in the decisions cited by the respondents
and quoted earlier herein.
 1. Under Section 17 of Rule 39 a third person who claims property levied upon on execution may vindicate
such claim by action. Obviously a judgment rendered in his favor, that is, declaring him to be the owner of
the property, would not constitute interference with the powers or processes of the court which rendered the
judgment to enforce which the execution was levied. If that be so – and it is so because the property,
being that of a stranger, is not subject to levy – then an interlocutory order such as injunction, upon
a claim and prima facie showing of ownership by the claimant, cannot be considered as such
interference either."

WHEREFORE, the petition is GRANTED. The assailed Decision dated January 8, 1999 and the Resolution dated
March 29, 1999 of the Court of Appeals in CA G.R. No. 49226 are set aside. Upon filing of a bond of ₱1,000,000.00,
respondent sheriffs are restrained from further implementing the writ of execution issued in Civil Case No. 96-80083
by the RTC, Branch 26, Manila, until further orders from this Court. The RTC, Branch 94, Boac, Marinduque, is
directed to dispose of Civil Case No. 98-13 with dispatch.

SO ORDERED.

Melo, Vitug, Panganiban, and Carpio, JJ., concur.

- Hahn v. Court of Appeals and BMW GR No. 113074, January 23, 1997

G.R. No. 113074 January 22, 1997

ALFRED HAHN, petitioner, vs.

COURT OF APPEALS and BAYERSCHE MOTOREN WERKE AKTIENGSELLSCHAFT (BMW), respondents.

MENDOZA, J.:

This is a petition for review of the decision of the Court of Appeals dismissing a complaint for specific performance
1

which petitioner had filed against private respondent on the ground that the Regional Trial Court of Quezon City did
not acquire jurisdiction over private respondent, a nonresident foreign corporation, and of the appellate court's order
denying petitioner's motion for reconsideration.

The following are the facts:

Petitioner Alfred Hahn is a Filipino citizen doing business under the name and style "Hahn-Manila." On the other
hand, private respondent Bayerische Motoren Werke Aktiengesellschaft (BMW) is a nonresident foreign corporation
existing under the laws of the former Federal Republic of Germany, with principal office at Munich, Germany.

On March 7, 1967, petitioner executed in favor of private respondent a "Deed of Assignment with Special Power of
Attorney," which reads in full as follows:

WHEREAS, the ASSIGNOR is the present owner and holder of the BMW trademark and device in the
Philippines which ASSIGNOR uses and has been using on the products manufactured by ASSIGNEE, and
for which ASSIGNOR is the authorized exclusive Dealer of the ASSIGNEE in the Philippines, the same
being evidenced by certificate of registration issued by the Director of Patents on 12 December 1963 and is
referred to as Trademark No. 10625;

WHEREAS, the ASSIGNOR has agreed to transfer and consequently record said transfer of the said BMW
trademark and device in favor of the ASSIGNEE herein with the Philippines Patent Office;

NOW THEREFORE, in view of the foregoing and in consideration of the stipulations hereunder stated, the
ASSIGNOR hereby affirms the said assignment and transfer in favor of the ASSIGNEE under the following
terms and conditions:

1. The ASSIGNEE shall take appropriate steps against any user other than ASSIGNOR or infringer of the
BMW trademark in the Philippines; for such purpose, the ASSIGNOR shall inform the ASSIGNEE
immediately of any such use or infringement of the said trademark which comes to his knowledge and upon
such information the ASSIGNOR shall automatically act as Attorney-In-Fact of the ASSIGNEE for such
case, with full power, authority and responsibility to prosecute unilaterally or in concert with ASSIGNEE, any
such infringer of the subject mark and for purposes hereof the ASSIGNOR is hereby named and constituted
as ASSIGNEE's Attorney-In-Fact, but any such suit without ASSIGNEE's consent will exclusively be the
responsibility and for the account of the ASSIGNOR,

2. That the ASSIGNOR and the ASSIGNEE shall continue business relations as has been usual in the past
without a formal contract, and for that purpose, the dealership of ASSIGNOR shall cover the ASSIGNEE's
complete production program with the only limitation that, for the present, in view of ASSIGNEE's limited
production, the latter shall not be able to supply automobiles to ASSIGNOR.
Per the agreement, the parties "continue[d] business relations as has been usual in the past without a formal
contract." But on February 16, 1993, in a meeting with a BMW representative and the president of Columbia Motors
Corporation (CMC), Jose Alvarez, petitioner was informed that BMW was arranging to grant the exclusive
dealership of BMW cars and products to CMC, which had expressed interest in acquiring the same. On February
24, 1993, petitioner received confirmation of the information from BMW which, in a letter, expressed dissatisfaction
with various aspects of petitioner's business, mentioning among other things, decline in sales, deteriorating
services, and inadequate showroom and warehouse facilities, and petitioner's alleged failure to comply with the
standards for an exclusive BMW dealer. Nonetheless, BMW expressed willingness to continue business relations
2

with the petitioner on the basis of a "standard BMW importer" contract, otherwise, it said, if this was not acceptable
to petitioner, BMW would have no alternative but to terminate petitioner's exclusive dealership effective June 30,
1993.

Petitioner protested, claiming that the termination of his exclusive dealership would be a breach of the Deed of
Assignment. Hahn insisted that as long as the assignment of its trademark and device subsisted, he remained
3

BMW's exclusive dealer in the Philippines because the assignment was made in consideration of the exclusive
dealership. In the same letter petitioner explained that the decline in sales was due to lower prices offered for BMW
cars in the United States and the fact that few customers returned for repairs and servicing because of the durability
of BMW parts and the efficiency of petitioner's service.

Because of Hahn's insistence on the former business relation, BMW withdrew on March 26, 1993 its offer of a
"standard importer contract" and terminated the exclusive dealer relationship effective June 30, 1993. At a
4

conference of BMW Regional Importers held on April 26, 1993 in Singapore, Hahn was surprised to find Alvarez
among those invited from the Asian region. On April 29, 1993, BMW proposed that Hahn and CMC jointly import
and distribute BMW cars and parts.

Hahn found the proposal unacceptable. On May 14, 1993, he filed a complaint for specific performance and
damages against BMW to compel it to continue the exclusive dealership. Later he filed an amended complaint to
include an application for temporary restraining order and for writs of preliminary, mandatory and prohibitory
injunction to enjoin BMW from terminating his exclusive dealership. Hahn's amended complaint alleged in pertinent
parts:

2. Defendant [BMW] is a foreign corporation doing business in the Philippines with principal offices at
Munich, Germany. It may be served with summons and other court processes through the Secretary of the
Department of Trade and Industry of the Philippines. . . .

xxx xxx xxx

5. On March 7, 1967, Plaintiff executed in favor of defendant BMW a Deed of Assignment with Special
Power of Attorney covering the trademark and in consideration thereof, under its first whereas clause,
Plaintiff was duly acknowledged as the "exclusive Dealer of the Assignee in the Philippines. . . .

xxx xxx xxx

8. From the time the trademark "BMW & DEVICE" was first used by the Plaintiff in the Philippines up to the
present, Plaintiff, through its firm name "HAHN MANILA" and without any monetary contribution from
defendant BMW, established BMW's goodwill and market presence in the Philippines. Pursuant thereto,
Plaintiff has invested a lot of money and resources in order to single-handedly compete against other
motorcycle and car companies. . . . Moreover, Plaintiff has built buildings and other infrastructures such as
service centers and showrooms to maintain and promote the car and products of defendant BMW.

xxx xxx xxx

10. In a letter dated February 24, 1993, defendant BMW advised Plaintiff that it was willing to maintain with
Plaintiff a relationship but only "on the basis of a standard BMW importer contract as adjusted to reflect the
particular situation in the Philippines" subject to certain conditions, otherwise, defendant BMW would
terminate Plaintiffs exclusive dealership and any relationship for cause effective June 30, 1993. . . .

xxx xxx xxx

15. The actuations of defendant BMW are in breach of the assignment agreement between itself and plaintiff
since the consideration for the assignment of the BMW trademark is the continuance of the exclusive
dealership agreement. It thus, follows that the exclusive dealership should continue for so long as defendant
BMW enjoys the use and ownership of the trademark assigned to it by Plaintiff.

The case was docketed as Civil Case No. Q-93-15933 and raffled to Branch 104 of the Quezon City Regional Trial
Court, which on June 14, 1993 issued a temporary restraining order. Summons and copies of the complaint and
amended complaint were thereafter served on the private respondent through the Department of Trade and
Industry, pursuant to Rule 14, §14 of the Rules of Court. The order, summons and copies of the complaint and
amended complaint were later sent by the DTI to BMW via registered mail on June 15, 1993 and received by the
5

latter on June 24, 1993.

On June 17, 1993, without proof of service on BMW, the hearing on the application for the writ of preliminary
injunction proceeded ex parte, with petitioner Hahn testifying. On June 30, 1993, the trial court issued an order
granting the writ of preliminary injunction upon the filing of a bond of P100,000.00. On July 13, 1993, following the
posting of the required bond, a writ of preliminary injunction was issued.

On July 1, 1993, BMW moved to dismiss the case, contending that the trial court did not acquire jurisdiction over it
through the service of summons on the Department of Trade and Industry, because it (BMW) was a foreign
corporation and it was not doing business in the Philippines. It contended that the execution of the Deed of
Assignment was an isolated transaction; that Hahn was not its agent because the latter undertook to assemble and
sell BMW cars and products without the participation of BMW and sold other products; and that Hahn was an
indentor or middleman transacting business in his own name and for his own account.

Petitioner Alfred Hahn opposed the motion. He argued that BMW was doing business in the Philippines through him
as its agent, as shown by the fact that BMW invoices and order forms were used to document his transactions; that
he gave warranties as exclusive BMW dealer; that BMW officials periodically inspected standards of service
rendered by him; and that he was described in service booklets and international publications of BMW as a "BMW
Importer" or "BMW Trading Company" in the Philippines.

The trial court deferred resolution of the motion to dismiss until after trial on the merits for the reason that the
6

grounds advanced by BMW in its motion did not seem to be indubitable.

Without seeking reconsideration of the aforementioned order, BMW filed a petition for certiorari with the Court of
Appeals alleging that:

I. THE RESPONDENT JUDGE ACTED WITH UNDUE HASTE OR OTHERWISE INJUDICIOUSLY IN

PROCEEDINGS LEADING TOWARD THE ISSUANCE OF THE WRIT OF PRELIMINARY INJUNCTION,
AND IN PRESCRIBING THE TERMS FOR THE ISSUANCE THEREOF.

II. THE RESPONDENT JUDGE PATENTLY ERRED IN DEFERRING RESOLUTION OF THE MOTION TO
DISMISS ON THE GROUND OF LACK OF JURISDICTION, AND THEREBY FAILING TO IMMEDIATELY
DISMISS THE CASE A QUO.

BMW asked for the immediate issuance of a temporary restraining order and, after hearing, for a writ of preliminary
injunction, to enjoin the trial court from proceeding further in Civil Case No. Q-93-15933. Private respondent pointed
out that, unless the trial court's order was set aside, it would be forced to submit to the jurisdiction of the court by
filing its answer or to accept judgment in default, when the very question was whether the court had jurisdiction over
it.

The Court of Appeals enjoined the trial court from hearing petitioner's complaint. On December 20, 1993, it rendered
judgment finding the trial court guilty of grave abuse of discretion in deferring resolution of the motion to dismiss. It
stated:

Going by the pleadings already filed with the respondent court before it came out with its questioned order of
July 26, 1993, we rule and so hold that petitioner's (BMW) motion to dismiss could be resolved then and
there, and that the respondent judge's deferment of his action thereon until after trial on the merit
constitutes, to our mind, grave abuse of discretion.

xxx xxx xxx

. . . [T]here is not much appreciable disagreement as regards the factual matters relating to the motion to
dismiss. What truly divide (sic) the parties and to which they greatly differ is the legal conclusions they
respectively draw from such facts, (sic) with Hahn maintaining that on the basis thereof, BMW is doing
business in the Philippines while the latter asserts that it is not.

Then, after stating that any ruling which the trial court might make on the motion to dismiss would anyway be
elevated to it on appeal, the Court of Appeals itself resolved the motion. It ruled that BMW was not doing business in
the country and, therefore, jurisdiction over it could not be acquired through service of summons on the DTI
pursuant to Rule 14, §14. 'The court upheld private respondent's contention that Hahn acted in his own name and
for his own account and independently of BMW, based on Alfred Hahn's allegations that he had invested his own
money and resources in establishing BMW's goodwill in the Philippines and on BMW's claim that Hahn sold
products other than those of BMW. It held that petitioner was a mere indentor or broker and not an agent through
whom private respondent BMW transacted business in the Philippines. Consequently, the Court of Appeals
dismissed petitioner's complaint against BMW.
Hence, this appeal. Petitioner contends that the Court of Appeals erred (1) in finding that the trial court gravely
abused its discretion in deferring action on the motion to dismiss and (2) in finding that private respondent BMW is
not doing business in the Philippines and, for this reason, dismissing petitioner's case.

Petitioner's appeal is well taken. Rule 14, §14 provides:

§14. Service upon private foreign corporations. — If the defendant is a foreign corporation, or a nonresident
joint stock company or association, doing business in the Philippines, service may be made on its resident
agent designated in accordance with law for that purpose, or, if there be no such agent, on the government
official designated by law to that effect, or on any of its officers or agents within the Philippines. (Emphasis
added).

What acts are considered "doing business in the Philippines" are enumerated in §3(d) of the Foreign Investments
Act of 1991 (R.A. No. 7042) as follows: 7

d) the phrase "doing business" shall include soliciting orders, service contracts, opening offices, whether
called "liaison" offices or branches; appointing representatives or distributors domiciled in the Philippines or
who in any calendar year stay in the country for a period or periods totalling one hundred eighty (180) days
or more; participating in the management, supervision or control of any domestic business, firm, entity or
corporation in the Philippines; and any other act or acts that imply a continuity of commercial dealings or
arrangements, and contemplate to that extent the performance of acts or works, or the exercise of some of
the functions normally incident to, and in progressive prosecution of, commercial gain or of the purpose and
object of the business organization: Provided, however, That the phrase "doing business" shall not be
deemed to include mere investment as a shareholder by a foreign entity in domestic corporations duly
registered to do business, and/or the exercise of rights as such investor; nor having a nominee director or
officer to represent its interests in such corporation; nor appointing a representative or distributor domiciled
in the Philippines which transacts business in its own name and for its own account. (Emphasis supplied)

Thus, the phrase includes "appointing representatives or distributors in the Philippines" but not when the
representative or distributor "transacts business in its name and for its own account." In addition, §1(f)(1) of the
Rules and Regulations implementing (IRR) the Omnibus Investment Code of 1987 (E.O. No. 226) provided:

(f) "Doing business" shall be any act or combination of acts, enumerated in Article 44 of the Code. In
particular, "doing business" includes:

(1) . . . A foreign firm which does business through middlemen acting in their own names, such as indentors,
commercial brokers or commission merchants, shall not be deemed doing business in the Philippines. But
such indentors, commercial brokers or commission merchants shall be the ones deemed to be doing
business in the Philippines.

The question is whether petitioner Alfred Hahn is the agent or distributor in the Philippines of private respondent
BMW. If he is, BMW may be considered doing business in the Philippines and the trial court acquired jurisdiction
over it (BMW) by virtue of the service of summons on the Department of Trade and Industry. Otherwise, if Hahn is
not the agent of BMW but an independent dealer, albeit of BMW cars and products, BMW, a foreign corporation, is
not considered doing business in the Philippines within the meaning of the Foreign Investments Act of 1991 and the
IRR, and the trial court did not acquire jurisdiction over it (BMW).

The Court of Appeals held that petitioner Alfred Hahn acted in his own name and for his own account and not as
agent or distributor in the Philippines of BMW on the ground that "he alone had contacts with individuals or entities
interested in acquiring BMW vehicles. Independence characterizes Hahn's undertakings, for which reason he is to
be considered, under governing statutes, as doing business." (p. 13) In support of this conclusion, the appellate
court cited the following allegations in Hahn's amended complaint:

8. From the time the trademark "BMW & DEVICE" was first used by the Plaintiff in the Philippines up to the
present, Plaintiff, through its firm name "HAHN MANILA" and without any monetary contributions from
defendant BMW, established BMW's goodwill and market presence in the Philippines. Pursuant thereto,
Plaintiff invested a lot of money and resources in order to single-handedly compete against other motorcycle
and car companies. . . . Moreover, Plaintiff has built buildings and other infrastructures such as service
centers and showrooms to maintain and promote the car and products of defendant BMW.

As the above quoted allegations of the amended complaint show, however, there is nothing to support the appellate
court's finding that Hahn solicited orders alone and for his own account and without "interference from, let alone
direction of, BMW." (p. 13) To the contrary, Hahn claimed he took orders for BMW cars and transmitted them to
BMW. Upon receipt of the orders, BMW fixed the downpayment and pricing charges, notified Hahn of the scheduled
production month for the orders, and reconfirmed the orders by signing and returning to Hahn the acceptance
sheets. Payment was made by the buyer directly to BMW. Title to cars purchased passed directly to the buyer and
Hahn never paid for the purchase price of BMW cars sold in the Philippines. Hahn was credited with a commission
equal to 14% of the purchase price upon the invoicing of a vehicle order by BMW. Upon confirmation in writing that
the vehicles had been registered in the Philippines and serviced by him, Hahn received an additional 3% of the full
purchase price. Hahn performed after-sale services, including warranty services, for which he received
reimbursement from BMW. All orders were on invoices and forms of BMW. 8

These allegations were substantially admitted by BMW which, in its petition for certiorari before the Court of
Appeals, stated: 9

9.4. As soon as the vehicles are fully manufactured and full payment of the purchase prices are made, the
vehicles are shipped to the Philippines. (The payments may be made by the purchasers or third-persons or
even by Hahn.) The bills of lading are made up in the name of the purchasers, but Hahn-Manila is therein
indicated as the person to be notified.

9.5. It is Hahn who picks up the vehicles from the Philippine ports, for purposes of conducting pre-delivery
inspections. Thereafter, he delivers the vehicles to the purchasers.

9.6. As soon as BMW invoices the vehicle ordered, Hahn is credited with a commission of fourteen percent
(14%) of the full purchase price thereof, and as soon as he confirms in writing that the vehicles have been
registered in the Philippines and have been serviced by him, he will receive an additional three percent (3%)
of the full purchase prices as commission.

Contrary to the appellate court's conclusion, this arrangement shows an agency. An agent receives a commission
upon the successful conclusion of a sale. On the other hand, a broker earns his pay merely by bringing the buyer
and the seller together, even if no sale is eventually made.

As to the service centers and showrooms which he said he had put up at his own expense, Hahn said that he had to
follow BMW specifications as exclusive dealer of BMW in the Philippines. According to Hahn, BMW periodically
inspected the service centers to see to it that BMW standards were maintained. Indeed, it would seem from BMW's
letter to Hahn that it was for Hahn's alleged failure to maintain BMW standards that BMW was terminating Hahn's
dealership.

The fact that Hahn invested his own money to put up these service centers and showrooms does not necessarily
prove that he is not an agent of BMW. For as already noted, there are facts in the record which suggest that BMW
exercised control over Hahn's activities as a dealer and made regular inspections of Hahn's premises to enforce
compliance with BMW standards and specifications. For example, in its letter to Hahn dated February 23, 1996,
10

BMW stated:

In the last years we have pointed out to you in several discussions and letters that we have to tackle the
Philippine market more professionally and that we are through your present activities not adequately
prepared to cope with the forthcoming challenges. 11

In effect, BMW was holding Hahn accountable to it under the 1967 Agreement.

This case fits into the mould of Communications Materials, Inc. v. Court of Appeals, in which the foreign
12

corporation entered into a "Representative Agreement" and a "Licensing Agreement" with a domestic corporation,
by virtue of which the latter was appointed "exclusive representative" in the Philippines for a stipulated commission.
Pursuant to these contracts, the domestic corporation sold products exported by the foreign corporation and put up
a service center for the products sold locally. This Court held that these acts constituted doing business in the
Philippines. The arrangement showed that the foreign corporation's purpose was to penetrate the Philippine market
and establish its presence in the Philippines.

In addition, BMW held out private respondent Hahn as its exclusive distributor in the Philippines, even as it
announced in the Asian region that Hahn was the "official BMW agent" in the Philippines. 13

The Court of Appeals also found that petitioner Alfred Hahn dealt in other products, and not exclusively in BMW
products, and, on this basis, ruled that Hahn was not an agent of BMW. (p. 14) This finding is based entirely on
allegations of BMW in its motion to dismiss filed in the trial court and in its petition for certiorari before the Court of
Appeals. But this allegation was denied by Hahn and therefore the Court of Appeals should not have cited it as if it
14 15

were the fact.

Indeed this is not the only factual issue raised, which should have indicated to the Court of Appeals the necessity of
affirming the trial court's order deferring resolution of BMW's motion to dismiss. Petitioner alleged that whether or
not he is considered an agent of BMW, the fact is that BMW did business in the Philippines because it sold cars
directly to Philippine buyers. This was denied by BMW, which claimed that Hahn was not its agent and that, while
16

it was true that it had sold cars to Philippine buyers, this was done without solicitation on its part.17

It is not true then that the question whether BMW is doing business could have been resolved simply by considering
the parties' pleadings. There are genuine issues of facts which can only be determined on the basis of evidence
duly presented. BMW cannot short circuit the process on the plea that to compel it to go to trial would be to deny its
right not to submit to the jurisdiction of the trial court which precisely it denies. Rule 16, §3 authorizes courts to defer
the resolution of a motion to dismiss until after the trial if the ground on which the motion is based does not appear
to be indubitable. Here the record of the case bristles with factual issues and it is not at all clear whether some
allegations correspond to the proof.

Anyway, private respondent need not apprehend that by responding to the summons it would be waiving its
objection to the trial court's jurisdiction. It is now settled that, for purposes of having summons served on a foreign
corporation in accordance with Rule 14, §14, it is sufficient that it be alleged in the complaint that the foreign
corporation is doing business in the Philippines. The court need not go beyond the allegations of the complaint in
order to determine whether it has Jurisdiction. A determination that the foreign corporation is doing business is only
18

tentative and is made only for the purpose of enabling the local court to acquire jurisdiction over the foreign
corporation through service of summons pursuant to Rule 14, §14. Such determination does not foreclose a
contrary finding should evidence later show that it is not transacting business in the country. As this Court has
explained:

This is not to say, however, that the petitioner's right to question the jurisdiction of the court over its person
is now to be deemed a foreclosed matter. If it is true, as Signetics claims, that its only involvement in the
Philippines was through a passive investment in Sigfil, which it even later disposed of, and that TEAM
Pacific is not its agent, then it cannot really be said to be doing business in the Philippines. It is a defense,
however, that requires the contravention of the allegations of the complaint, as well as a full ventilation, in
effect, of the main merits of the case, which should not thus be within the province of a mere motion to
dismiss. So, also, the issue posed by the petitioner as to whether a foreign corporation which has done
business in the country, but which has ceased to do business at the time of the filing of a complaint, can still
be made to answer for a cause of action which accrued while it was doing business, is another matter that
would yet have to await the reception and admission of evidence. Since these points have seasonably been
raised by the petitioner, there should be no real cause for what may understandably be its
apprehension, i.e., that by its participation during the trial on the merits, it may, absent an invocation of
separate or independent reliefs of its own, be considered to have voluntarily submitted itself to the court's
jurisdiction.
19

Far from committing an abuse of discretion, the trial court properly deferred resolution of the motion to dismiss and
thus avoided prematurely deciding a question which requires a factual basis, with the same result if it had denied
the motion and conditionally assumed jurisdiction. It is the Court of Appeals which, by ruling that BMW is not doing
business on the basis merely of uncertain allegations in the pleadings, disposed of the whole case with finality and
thereby deprived petitioner of his right to be heard on his cause of action. Nor was there justification for nullifying the
writ of preliminary injunction issued by the trial court. Although the injunction was issued ex parte, the fact is that
BMW was subsequently heard on its defense by filing a motion to dismiss.

WHEREFORE, the decision of the Court of Appeals is REVERSED and the case is REMANDED to the trial court for
further proceedings.

SO ORDERED.

Regalado, Romero, Puno and Torres, Jr., JJ., concur.

- Agilent Technologies Singapore Ltd v. Integrated Silicon Technology, Phili. Corp GR No. 154618 April 14, 2004

AGILENT TECHNOLOGIES SINGAPORE (PTE) LTD., petitioner, vs.

INTEGRATED SILICON TECHNOLOGY PHILIPPINES CORPORATION, TEOH KIANG HONG, TEOH KIANG
SENG, ANTHONY CHOO, JOANNE KATE M. DELA CRUZ, JEAN KAY M. DELA CRUZ and ROLANDO T.
NACILLA, respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for review assails the Decision dated August 12, 2002 of the Court of Appeals in CA-G.R. SP No.
66574, which dismissed Civil Case No. 3123-2001-C and annulled and set aside the Order dated September 4,
2001 issued by the Regional Trial Court of Calamba, Laguna, Branch 92.

Petitioner Agilent Technologies Singapore (Pte.), Ltd. ("Agilent") is a foreign corporation, which, by its own
admission, is not licensed to do business in the Philippines. 1 Respondent Integrated Silicon Technology Philippines
Corporation ("Integrated Silicon") is a private domestic corporation, 100% foreign owned, which is engaged in the
business of manufacturing and assembling electronics components. 2 Respondents Teoh Kiang Hong, Teoh Kiang
Seng and Anthony Choo, Malaysian nationals, are current members of Integrated Silicon’s board of directors, while
Joanne Kate M. dela Cruz, Jean Kay M. dela Cruz, and Rolando T. Nacilla are its former members. 3

The juridical relation among the various parties in this case can be traced to a 5-year Value Added Assembly
Services Agreement ("VAASA"), entered into on April 2, 1996 between Integrated Silicon and the Hewlett-Packard
Singapore (Pte.) Ltd., Singapore Components Operation ("HP-Singapore"). 4 Under the terms of the VAASA,
Integrated Silicon was to locally manufacture and assemble fiber optics for export to HP-Singapore. HP-Singapore,
for its part, was to consign raw materials to Integrated Silicon; transport machinery to the plant of Integrated Silicon;
and pay Integrated Silicon the purchase price of the finished products. 5 The VAASA had a five-year term, beginning
on April 2, 1996, with a provision for annual renewal by mutual written consent. 6 On September 19, 1999, with the
consent of Integrated Silicon, 7 HP-Singapore assigned all its rights and obligations in the VAASA to Agilent. 8

On May 25, 2001, Integrated Silicon filed a complaint for "Specific Performance and Damages" against Agilent and
its officers Tan Bian Ee, Lim Chin Hong, Tey Boon Teck and Francis Khor, docketed as Civil Case No. 3110-01-C. It
alleged that Agilent breached the parties’ oral agreement to extend the VAASA. Integrated Silicon thus prayed that
defendant be ordered to execute a written extension of the VAASA for a period of five years as earlier assured and
promised; to comply with the extended VAASA; and to pay actual, moral, exemplary damages and attorney’s fees. 9

On June 1, 2001, summons and a copy of the complaint were served on Atty. Ramon Quisumbing, who returned
these processes on the claim that he was not the registered agent of Agilent. Later, he entered a special
appearance to assail the court’s jurisdiction over the person of Agilent.

On July 2, 2001, Agilent filed a separate complaint against Integrated Silicon, Teoh Kang Seng, Teoh Kiang Gong,
Anthony Choo, Joanne Kate M. dela Cruz, Jean Kay M. dela Cruz and Rolando T. Nacilla, 10 for "Specific
Performance, Recovery of Possession, and Sum of Money with Replevin, Preliminary Mandatory Injunction, and
Damages", before the Regional Trial Court, Calamba, Laguna, Branch 92, docketed as Civil Case No. 3123-2001-C.
Agilent prayed that a writ of replevin or, in the alternative, a writ of preliminary mandatory injunction, be issued
ordering defendants to immediately return and deliver to plaintiff its equipment, machineries and the materials to be
used for fiber-optic components which were left in the plant of Integrated Silicon. It further prayed that defendants be
ordered to pay actual and exemplary damages and attorney’s fees. 11

Respondents filed a Motion to Dismiss in Civil Case No. 3123-2001-C,12 on the grounds of lack of Agilent’s legal
capacity to sue;13 litis pendentia;14 forum shopping;15 and failure to state a cause of action. 16

On September 4, 2001, the trial court denied the Motion to Dismiss and granted petitioner Agilent’s application for a
writ of replevin.17

Without filing a motion for reconsideration, respondents filed a petition for certiorari with the Court of Appeals. 18

In the meantime, upon motion filed by respondents, Judge Antonio S. Pozas of Branch 92 voluntarily inhibited
himself in Civil Case No. 3123-2001-C. The case was re-raffled and assigned to Branch 35, the same branch where
Civil Case No. 3110-2001-C is pending.

On August 12, 2002, the Court of Appeals granted respondents’ petition for certiorari, set aside the assailed Order
of the trial court dated September 4, 2001, and ordered the dismissal of Civil Case No. 3123-2001-C.

Hence, the instant petition raising the following errors:

I.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT DISMISSING RESPONDENTS’

PETITION FOR CERTIORARI FOR RESPONDENTS’ FAILURE TO FILE A MOTION FOR RECONSIDERATION
BEFORE RESORTING TO THE REMEDY OF CERTIORARI.

II.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN ANNULLING AND SETTING ASIDE THE
TRIAL COURT’S ORDER DATED 4 SEPTEMBER 2001 AND ORDERING THE DISMISSAL OF CIVIL CASE NO.
3123-2001-C BELOW ON THE GROUND OF LITIS PENDENTIA, ON ACCOUNT OF THE PENDENCY OF CIVIL
CASE NO. 3110-2001-C.

III.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN ANNULLING AND SETTING ASIDE THE
TRIAL COURT’S ORDER DATED 4 SEPTEMBER 2001 AND ORDERING THE DISMISSAL OF CIVIL CASE NO.
3123-2001-C BELOW ON THE GROUND OF FORUM SHOPPING, ON ACCOUNT OF THE PENDENCY OF CIVIL
CASE NO. 3110-2001-C.

IV.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN ORDERING THE DISMISSAL OF CIVIL CASE
NO. 323-2001-C BELOW INSTEAD OF ORDERING IT CONSOLIDATED WITH CIVIL CASE NO. 3110-2001-C. 19

The two primary issues raised in this petition: (1) whether or not the Court of Appeals committed reversible error in
giving due course to respondents’ petition, notwithstanding the failure to file a Motion for Reconsideration of the
September 4, 2001 Order; and (2) whether or not the Court of Appeals committed reversible error in dismissing Civil
Case No. 3123-2001-C.

We find merit in the petition.

The Court of Appeals, citing the case of Malayang Manggagawa sa ESSO v. ESSO Standard Eastern, Inc.,20 held
that the lower court had no jurisdiction over Civil Case No. 3123-2001-C because of the pendency of Civil Case No.
3110-2001-C and, therefore, a motion for reconsideration was not necessary before resort to a petition for certiorari.
This was error.

Jurisdiction is fixed by law. Batas Pambansa Blg. 129 vests jurisdiction over the subject matter of Civil Case No.
3123-2001-C in the RTC.21

The Court of Appeals’ ruling that the assailed Order issued by the RTC of Calamba, Branch 92, was a nullity for lack
of jurisdiction due to litis pendentia and forum shopping, has no legal basis. The pendency of another action does
not strip a court of the jurisdiction granted by law.

The Court of Appeals further ruled that a Motion for Reconsideration was not necessary in view of the urgent
necessity in this case. We are not convinced. In the case of Bache and Co. (Phils.), Inc. v. Ruiz,22 relied on by the
Court of Appeals, it was held that "time is of the essence in view of the tax assessments sought to be enforced by
respondent officers of the Bureau of Internal Revenue against petitioner corporation, on account of which immediate
and more direct action becomes necessary." Tax assessments in that case were based on documents seized by
virtue of an illegal search, and the deprivation of the right to due process tainted the entire proceedings with
illegality. Hence, the urgent necessity of preventing the enforcement of the tax assessments was patent.
Respondents, on the other hand, cite the case of Geronimo v. Commission on Elections,23 where the urgent
necessity of resolving a disqualification case for a position in local government warranted the expeditious resort to
certiorari. In the case at bar, there is no analogously urgent circumstance which would necessitate the relaxation of
the rule on a Motion for Reconsideration.

Indeed, none of the exceptions for dispensing with a Motion for Reconsideration is present here. None of the
following cases cited by respondents serves as adequate basis for their procedural lapse.

In Vigan Electric Light Co., Inc. v. Public Service Commission, 24 the questioned order was null and void for failure of
respondent tribunal to comply with due process requirements; in Matanguihan v. Tengco,25 the questioned order was
a patent nullity for failure to acquire jurisdiction over the defendants, which fact the records plainly disclosed; and
in National Electrification Administration v. Court of Appeals, 26 the questioned orders were void for vagueness. No
such patent nullity is evident in the Order issued by the trial court in this case. Finally, while urgency may be a
ground for dispensing with a Motion for Reconsideration, in the case of Vivo v. Cloribel,27 cited by respondents, the
slow progress of the case would have rendered the issues moot had a motion for reconsideration been availed of.
We find no such urgent circumstance in the case at bar.

Respondents, therefore, availed of a premature remedy when they immediately raised the matter to the Court of
Appeals on certiorari; and the appellate court committed reversible error when it took cognizance of respondents’
petition instead of dismissing the same outright.

We come now to the substantive issues of the petition.

Litis pendentia is a Latin term which literally means "a pending suit." It is variously referred to in some decisions
as lis pendens and auter action pendant. While it is normally connected with the control which the court has on a
property involved in a suit during the continuance proceedings, it is more interposed as a ground for the dismissal of
a civil action pending in court.

Litis pendentia as a ground for the dismissal of a civil action refers to that situation wherein another action is
pending between the same parties for the same cause of action, such that the second action becomes unnecessary
and vexatious. For litis pendentia to be invoked, the concurrence of the following requisites is necessary:

(a) identity of parties or at least such as represent the same interest in both actions;

(b) identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and

(c) the identity in the two cases should be such that the judgment that may be rendered in one would,
regardless of which party is successful, amount to res judicata in the other.28

The Court of Appeals correctly appreciated the identity of parties in Civil Cases No. 3123-2001-C and 3110-2001-C.
Well-settled is the rule that lis pendens requires only substantial, and not absolute, identity of parties.29 There is
substantial identity of parties when there is a community of interest between a party in the first case and a party in
the second case, even if the latter was not impleaded in the first case. 30 The parties in these cases are vying over
the interests of the two opposing corporations; the individuals are only incidentally impleaded, being the natural
persons purportedly accused of violating these corporations’ rights.
Likewise, the fact that the positions of the parties are reversed, i.e., the plaintiffs in the first case are the defendants
in the second case or vice versa, does not negate the identity of parties for purposes of determining whether the
case is dismissible on the ground of litis pendentia.31

The identity of parties notwithstanding, litis pendentia does not obtain in this case because of the absence of the
second and third requisites. The rights asserted in each of the cases involved are separate and distinct; there are
two subjects of controversy presented for adjudication; and two causes of action are clearly involved. The fact that
respondents instituted a prior action for "Specific Performance and Damages" is not a ground for defeating the
petitioners’ action for "Specific Performance, Recovery of Possession, and Sum of Money with Replevin, Preliminary
Mandatory Injunction, and Damages."

In Civil Case No. 3110-2001-C filed by respondents, the issue is whether or not there was a breach of an oral
promise to renew of the VAASA. The issue in Civil Case No. 3123-2001-C, filed by petitioner, is whether petitioner
has the right to take possession of the subject properties. Petitioner’s right of possession is founded on the
ownership of the subject goods, which ownership is not disputed and is not contingent on the extension or non-
extension of the VAASA. Hence, the replevin suit can validly be tried even while the prior suit is being litigated in the
Regional Trial Court.

Possession of the subject properties is not an issue in Civil Case No. 3110-2001-C. The reliefs sought by
respondent Integrated Silicon therein are as follows: (1) execution of a written extension or renewal of the VAASA;
(2) compliance with the extended VAASA; and (3) payment of overdue accounts, damages, and attorney’s fees. The
reliefs sought by petitioner Agilent in Civil Case No. 3123-2001-C, on the other hand, are as follows: (1) issuance of
a Writ of Replevin or Writ of Preliminary Mandatory Injunction; (2) recovery of possession of the subject properties;
(3) damages and attorney’s fees.

Concededly, some items or pieces of evidence may be admissible in both actions. It cannot be said, however,
that exactly the same evidence will support the decisions in both, since the legally significant and controlling facts in
each case are entirely different. Although the VAASA figures prominently in both suits, Civil Case No. 3110-2001-C
is premised on a purported breach of an oral obligation to extend the VAASA, and damages arising out of Agilent’s
alleged failure to comply with such purported extension. Civil Case No. 3123-2001-C, on the other hand, is
premised on a breach of the VAASA itself, and damages arising to Agilent out of that purported breach.

It necessarily follows that the third requisite for litis pendentia is also absent. The following are the elements of res
judicata:

(a) The former judgment must be final;

(b) The court which rendered judgment must have jurisdiction over the parties and the subject matter;

(c) It must be a judgment on the merits; and

(d) There must be between the first and second actions identity of parties, subject matter, and cause of
action.32

In this case, any judgment rendered in one of the actions will not amount to res judicata in the other action. There
being different causes of action, the decision in one case will not constitute res judicata as to the other.

Of course, a decision in one case may, to a certain extent, affect the other case. This, however, is not the test to
determine the identity of the causes of action. Whatever difficulties or inconvenience may be entailed if both causes
of action are pursued on separate remedies, the proper solution is not the dismissal order of the Court of Appeals.
The possible consolidation of said cases, as well as stipulations and appropriate modes of discovery, may well be
considered by the court below to subserve not only procedural expedience but, more important, the ends of justice. 33

We now proceed to the issue of forum shopping.

The test for determining whether a party violated the rule against forum-shopping was laid down in the case of Buan
v. Lopez.34 Forum shopping exists where the elements of litis pendentia are present, or where a final judgment in
one case will amount to res judicata in the final other. There being no litis pendentia in this case, a judgment in the
said case will not amount to res judicata in Civil Case No. 3110-2001-C, and respondents’ contention on forum
shopping must likewise fail.

We are not unmindful of the afflictive consequences that may be suffered by both petitioner and respondents if
replevin is granted by the trial court in Civil Case No. 3123-2001-C. If respondent Integrated Silicon eventually wins
Civil Case No. 3110-2001-C, and the VAASA’s terms are extended, petitioner corporation will have to comply with
its obligations thereunder, which would include the consignment of properties similar to those it may recover by way
of replevin in Civil Case No. 3123-2001-C. However, petitioner will also suffer an injustice if denied the remedy of
replevin, resort to which is not only allowed but encouraged by law.
Respondents argue that since Agilent is an unlicensed foreign corporation doing business in the Philippines, it lacks
the legal capacity to file suit.35 The assailed acts of petitioner Agilent, purportedly in the nature of "doing business" in
the Philippines, are the following: (1) mere entering into the VAASA, which is a "service contract"; 36 (2) appointment
of a full-time representative in Integrated Silicon, to "oversee and supervise the production" of Agilent’s
products;37 (3) the appointment by Agilent of six full-time staff members, who were permanently stationed at
Integrated Silicon’s facilities in order to inspect the finished goods for Agilent; 38 and (4) Agilent’s participation in the
management, supervision and control of Integrated Silicon, 39 including instructing Integrated Silicon to hire more
employees to meet Agilent’s increasing production needs, 40 regularly performing quality audit, evaluation and
supervision of Integrated Silicon’s employees, 41 regularly performing inventory audit of raw materials to be used by
Integrated Silicon, which was also required to provide weekly inventory updates to Agilent, 42 and providing and
dictating Integrated Silicon on the daily production schedule, volume and models of the products to manufacture and
ship for Agilent.43

A foreign corporation without a license is not ipso facto incapacitated from bringing an action in Philippine courts. A
license is necessary only if a foreign corporation is "transacting" or "doing business" in the country. The Corporation
Code provides:

Sec. 133. Doing business without a license. — No foreign corporation transacting business in the Philippines
without a license, or its successors or assigns, shall be permitted to maintain or intervene in any action, suit
or proceeding in any court or administrative agency of the Philippines; but such corporation may be sued or
proceeded against before Philippine courts or administrative tribunals on any valid cause of action
recognized under Philippine laws.

The aforementioned provision prevents an unlicensed foreign corporation "doing business" in the Philippines from
accessing our courts.

In a number of cases, however, we have held that an unlicensed foreign corporation doing business in the
Philippines may bring suit in Philippine courts against a Philippine citizen or entity who had contracted with and
benefited from said corporation. 44 Such a suit is premised on the doctrine of estoppel. A party is estopped from
challenging the personality of a corporation after having acknowledged the same by entering into a contract with it.
This doctrine of estoppel to deny corporate existence and capacity applies to foreign as well as domestic
corporations.45 The application of this principle prevents a person contracting with a foreign corporation from later
taking advantage of its noncompliance with the statutes chiefly in cases where such person has received the
benefits of the contract.46

The principles regarding the right of a foreign corporation to bring suit in Philippine courts may thus be condensed in
four statements: (1) if a foreign corporation does business in the Philippines without a license, it cannot sue before
the Philippine courts;47 (2) if a foreign corporation is not doing business in the Philippines, it needs no license to sue
before Philippine courts on an isolated transaction or on a cause of action entirely independent of any business
transaction48; (3) if a foreign corporation does business in the Philippines without a license, a Philippine citizen or
entity which has contracted with said corporation may be estopped from challenging the foreign corporation’s
corporate personality in a suit brought before Philippine courts; 49 and (4) if a foreign corporation does business in the
Philippines with the required license, it can sue before Philippine courts on any transaction.

The challenge to Agilent’s legal capacity to file suit hinges on whether or not it is doing business in the Philippines.
However, there is no definitive rule on what constitutes "doing", "engaging in", or "transacting" business in the
Philippines, as this Court observed in the case of Mentholatum v. Mangaliman.50 The Corporation Code itself is silent
as to what acts constitute doing or transacting business in the Philippines.

Jurisprudence has it, however, that the term "implies a continuity of commercial dealings and arrangements, and
contemplates, to that extent, the performance of acts or works or the exercise of some of the functions normally
incident to or in progressive prosecution of the purpose and subject of its organization." 51

In Mentholatum,52 this Court discoursed on the two general tests to determine whether or not a foreign corporation
can be considered as "doing business" in the Philippines. The first of these is the substance test, thus:53

The true test [for doing business], however, seems to be whether the foreign corporation is continuing the
body of the business or enterprise for which it was organized or whether it has substantially retired from it
and turned it over to another.

The second test is the continuity test, expressed thus:54

The term [doing business] implies a continuity of commercial dealings and arrangements, and contemplates,
to that extent, the performance of acts or works or the exercise of some of the functions normally incident to,
and in the progressive prosecution of, the purpose and object of its organization.

Although each case must be judged in light of its attendant circumstances, jurisprudence has evolved several
guiding principles for the application of these tests. For instance, considering that it transacted with its Philippine
counterpart for seven years, engaging in futures contracts, this Court concluded that the foreign corporation
in Merrill Lynch Futures, Inc. v. Court of Appeals and Spouses Lara, 55 was doing business in the Philippines.
In Commissioner of Internal Revenue v. Japan Airlines ("JAL"), 56 the Court held that JAL was doing business in the
Philippines, i.e., its commercial dealings in the country were continuous – despite the fact that no JAL aircraft landed
in the country – as it sold tickets in the Philippines through a general sales agent, and opened a promotions office
here as well.

In General Corp. of the Phils. v. Union Insurance Society of Canton and Fireman’s Fund Insurance, 57 a foreign
insurance corporation was held to be doing business in the Philippines, as it appointed a settling agent here, and
issued 12 marine insurance policies. We held that these transactions were not isolated or casual, but manifested the
continuity of the foreign corporation’s conduct and its intent to establish a continuous business in the country.
In Eriks PTE Ltd. v. Court of Appeals and Enriquez,58 the foreign corporation sold its products to a Filipino buyer who
ordered the goods 16 times within an eight-month period. Accordingly, this Court ruled that the corporation was
doing business in the Philippines, as there was a clear intention on its part to continue the body of its business here,
despite the relatively short span of time involved. Communication Materials and Design, Inc., et al. v. Court of
Appeals, ITEC, et al.59 and Top-Weld Manufacturing v. ECED, IRTI, et al.60 both involved the License and Technical
Agreement and Distributor Agreement of foreign corporations with their respective local counterparts that were the
primary bases for the Court’s ruling that the foreign corporations were doing business in the Philippines. 61 In
particular, the Court cited the highly restrictive nature of certain provisions in the agreements involved, such that, as
stated in Communication Materials, the Philippine entity is reduced to a mere extension or instrument of the foreign
corporation. For example, in Communication Materials, the Court deemed the "No Competing Product" provision of
the Representative Agreement therein restrictive.62

The case law definition has evolved into a statutory definition, having been adopted with some qualifications in
various pieces of legislation. The Foreign Investments Act of 1991 (the "FIA"; Republic Act No. 7042, as amended),
defines "doing business" as follows:

Sec. 3, par. (d). The phrase "doing business" shall include soliciting orders, service contracts, opening
offices, whether called "liaison" offices or branches; appointing representatives or distributors domiciled in
the Philippines or who in any calendar year stay in the country for a period or periods totaling one hundred
eighty (180) days or more; participating in the management, supervision or control of any domestic
business, firm, entity, or corporation in the Philippines; and any other act or acts that imply a continuity of
commercial dealings or arrangements, and contemplate to that extent the performance of acts or works, or
the exercise of some of the functions normally incident to, and in the progressive prosecution of, commercial
gain or of the purpose and object of the business organization.

An analysis of the relevant case law, in conjunction with Section 1 of the Implementing Rules and
Regulations of the FIA (as amended by Republic Act No. 8179), would demonstrate that the acts
enumerated in the VAASA do not constitute "doing business" in the Philippines.

Section 1 of the Implementing Rules and Regulations of the FIA (as amended by Republic Act No. 8179)
provides that the following shall not be deemed "doing business":

(1) Mere investment as a shareholder by a foreign entity in domestic corporations duly registered to
do business, and/or the exercise of rights as such investor;

(2) Having a nominee director or officer to represent its interest in such corporation;

(3) Appointing a representative or distributor domiciled in the Philippines which transacts business in
the representative’s or distributor’s own name and account;

(4) The publication of a general advertisement through any print or broadcast media;

(5) Maintaining a stock of goods in the Philippines solely for the purpose of having the same
processed by another entity in the Philippines;

(6) Consignment by a foreign entity of equipment with a local company to be used in the processing
of products for export;

(7) Collecting information in the Philippines; and

(8) Performing services auxiliary to an existing isolated contract of sale which are not on a continuing
basis, such as installing in the Philippines machinery it has manufactured or exported to the
Philippines, servicing the same, training domestic workers to operate it, and similar incidental
services.

By and large, to constitute "doing business", the activity to be undertaken in the Philippines is one that is for
profit-making.63
By the clear terms of the VAASA, Agilent’s activities in the Philippines were confined to (1) maintaining a stock of
goods in the Philippines solely for the purpose of having the same processed by Integrated Silicon; and (2)
consignment of equipment with Integrated Silicon to be used in the processing of products for export. As such, we
hold that, based on the evidence presented thus far, Agilent cannot be deemed to be "doing business" in the
Philippines. Respondents’ contention that Agilent lacks the legal capacity to file suit is therefore devoid of merit. As a
foreign corporation not doing business in the Philippines, it needed no license before it can sue before our courts.

Finally, as to Agilent’s purported failure to state a cause of action against the individual respondents, we likewise
rule in favor of petitioner. A Motion to Dismiss hypothetically admits all the allegations in the Complaint, which plainly
alleges that these individual respondents had committed or permitted the commission of acts prejudicial to Agilent.
Whether or not these individuals had divested themselves of their interests in Integrated Silicon, or are no longer
members of Integrated Silicon’s Board of Directors, is a matter of defense best threshed out during trial.

WHEREFORE, PREMISES CONSIDERED, the petition is GRANTED. The Decision of the Court of Appeals in CA-
G.R. SP No. 66574 dated August 12, 2002, which dismissed Civil Case No. 3123-2001-C,

is REVERSED and SET ASIDE. The Order dated September 4, 2001 issued by the Regional Trial Court of
Calamba, Laguna, Branch 92, in Civil Case No. 3123-2001-C, is REINSTATED. Agilent’s application for a Writ of
Replevin is GRANTED.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., Panganiban, Carpio, and Azcuna, JJ., concur.

Extraterritorial service (Sec. 17, 18)

Return of Summons and Proof of service (Sec. 20, 21, 22)
What constitutes voluntary appearance (Sec. 13)

Jurisdiction over the res/thing

Sec. 17, 18, Rule 14
- Licaros v Licaros GR No. 150656 April 29, 2003

MARGARITA ROMUALDEZ-LICAROS, petitioner, vs.

ABELARDO B. LICAROS, respondent.

CARPIO, J.:

The Case

This is a petition for review on certiorari 1 to annul the Decision2 dated 9 August 2001 of the Court of Appeals in CA-
G.R. SP No. 58487, as well as the Resolution dated 23 October 2001 denying the motion for reconsideration. The
Court of Appeals dismissed the petition to annul the following decisions 3 rendered by Branch 143 of the Regional
Trial Court of Makati:

(1) The Decision dated 27 December 1990 4 granting the dissolution of the conjugal partnership of gains of
the spouses Abelardo B. Licaros and Margarita Romualdez-Licaros;

(2) The Decision dated 8 November 1991 5 declaring the marriage between the same spouses null and void.

The Facts

The antecedent facts as found by the Court of Appeals are as follows:

x x x Abelardo Licaros (Abelardo, for short) and Margarita Romualdez-Licaros (Margarita, hereafter) were
lawfully married on December 15, 1968. Out of this marital union were born Maria Concepcion and
Abelardo, Jr. Ironically, marital differences, squabbles and irreconcilable conflicts transpired between the
spouses, such that sometime in 1979, they agreed to separate from bed and board.

In 1982, Margarita left for the United States and there, to settle down with her two (2) children. In the United
States, on April 26, 1989, Margarita applied for divorce before the Superior Court of California, County of
San Mateo (Annex "1", Rejoinder, pp. 164-165) where she manifested that she does not desire counseling
at that time (Quotation, p. 166, Rollo). On August 6, 1990, Margarita was granted the decree of divorce
(Annex 2, Answer, p. 108, Rollo) together with a distribution of properties between her and Abelardo (pp.
167-168, Rollo).
 Not long after, on August 17, 1990, Abelardo and Margarita executed an "Agreement of Separation of
Properties" (pp. 60-64, Rollo). This was followed-up by a petition filed on August 21, 1990 before the
Regional Trial Court of Makati for the dissolution of the conjugal partnership of gains of the spouses and for
the approval of the agreement of separation of their properties. This was docketed as Special Proceeding
No. 2551. On December 27, 1990, a decision was issued granting the petition and approving the separation
of property agreement.

For his part, on June 24, 1991, Abelardo commenced Civil Case No. 91-1757, for the declaration of nullity of
his marriage with Margarita, based on psychological incapacity under the New Family Code. As Margarita
was then residing at 96 Mulberry Lane, Atherton, California, U.S.A., Abelardo initially moved that summons
be served through the International Express Courier Service. The court a quo denied the motion. Instead, it
ordered that summons be served by publication in a newspaper of general circulation once a week for three
(3) consecutive weeks, at the same time furnishing respondent a copy of the order, as well as the
corresponding summons and a copy of the petition at the given address in the United States through the
Department of Foreign Affairs, all at the expense of Abelardo. Respondent was given sixty (60) days after
publication to file a responsive pleading.

On July 15, 1991, Process Server, Maximo B. Dela Rosa, submitted his Officer’s Return quoted hereunder:

"OFFICER’S RETURN

THIS IS TO CERTIFY that on July 3, 1991, I have served a copy of summons and complaint with annexes
together with order dated June 28, 1991 issued by the Court in the above-entitled case upon defendant
Margarita Romualdez-Licaros c/o DFA. (sent by Mail) thru Pat G. Martines receiving Clerk of Department of
Foreign Affairs a person authorized to receive this kind of process who acknowledged the receipt thereof at
ADB Bldg., Roxas Blvd., Pasay City, Metro Manila." (p. 40, Rollo)

As required by law, the case was referred to Trial Prosecutor Bruselas, Jr. to find out any possible collusion between
the parties in the case. Thereafter, with the negative report of collusion, Abelardo was allowed to present his
evidence ex-parte. On November 8, 1991, the Decision (Annex "A", Petition) was handed down in Civil Case No.
91-1757 declaring the marriage between Abelardo and Margarita null and void.

Almost nine (9) years later, on April 28, 2000, the petition at bench was commenced when Margarita received a
letter dated November 18, 1991 from a certain Atty. Angelo Q. Valencia informing her that she no longer has the
right to use the family name "Licaros" inasmuch as her marriage to Abelardo had already been judicially dissolved
by the Regional Trial Court of Makati on November 8, 1991. Asseverating to have immediately made some
verifications and finding the information given to be true, petitioner commenced the instant petition on the following
grounds:

(A) THERE WAS EXTRINSIC FRAUD IN THE PREPARATION AND FILING BY ABELARDO OF THE
PETITION FOR DISSOLUTION OF THE CONJUGAL PARTNERSHIP OF GAINS AND ITS ANNEX, THE
AGREEMENT OF SEPARATION OF PROPERTIES.

(B) THE TRIAL COURT LACKED JURISDICTION TO HEAR AND DECIDE THE PETITION FOR
DECLARATION OF NULLITY OF MARRIAGE.6

The Ruling of the Court of Appeals

The Court of Appeals debunked the claim of Margarita that there was extrinsic fraud in the preparation and filing by
Abelardo of the Petition for Dissolution of Conjugal Partnership of Gains and its annex, the Agreement of Separation
of Properties. The Court of Appeals stated:

x x x, the extrinsic fraud alluded to consists of Abelardo coercing Margarita into signing the petition to
dissolve their conjugal partnership of gains together with the agreement of separation of properties, by
threatening to cut-off all financial and material support of their children then still studying in the United
States; that petitioner had no hand directly or indirectly in the preparation of the petition and agreement of
separation of properties; that petitioner never met the counsel for the petitioner, nor the notary public who
notarized the deed; and, petitioner never received any notice of the pendency of the petition nor a copy of
the decision.

Antithetically, a meticulous perusal of the controversial petition (Annex "B-1") and the agreement of
separation of properties (pp. 60-64, Rollo) readily shows that the same were signed by the petitioner on the
proper space after the prayer and on the portion for the verification of the petition. The same is true with the
agreement of separation of properties. What is striking to note is that on August 6, 1990, Margarita appeared
before Amado P. Cortez, Consul of the Republic of the Philippines at the San Francisco, California, United
States Consulate Office, to affirm and acknowledge before said official that she executed the agreement of
separation of properties of her own free will and deed, after being informed of the contents thereof. And yet,
there is no showing that Abelardo was with her at the Philippine Consulate Office in confirming the
separation of property agreement. Moreover, on page 2 of the same agreement, it is specifically stated that
 such property separation document shall be "subject to approval later on by the proper court of competent
jurisdiction." The clear import of this is that the agreement must have to be submitted before the proper court
for approval, which explains and confirms petitioner’s signature on the petition filed in court.

In main, We see no indication nor showing of coercion or fraud from these facts, which could very well be
considered as extrinsic or collateral fraud to justify a petition under Rule 47. From all indications, the
pretended coerced documents were rather freely and voluntarily executed by the parties therein knowing
fully well the imports thereof. This conclusion finds more weight if We consider the fact that the separation of
property was fully implemented and enforced, when apparently both parties correspondingly received the
properties respectively assigned to each of them under the said document. 7

The Court of Appeals also rejected Margarita’s claim that the trial court lacked jurisdiction to hear and decide
the Petition for Declaration of Nullity of Marriage for improper service of summons on her. The case involves the
marital status of the parties, which is an action in rem or quasi in rem. The Court of Appeals ruled that in such an
action the purpose of service of summons is not to vest the trial court with jurisdiction over the person of the
defendant, but "only" to comply with due process. The Court of Appeals concluded that any irregularity in the service
of summons involves due process which does not destroy the trial court’s jurisdiction over the res which is the
parties’ marital status. Neither does such irregularity invalidate the judgment rendered in the case. Thus, the Court
of Appeals dismissed the petition for annulment of judgment, stating that:

At bar, the case involves the personal (marital) status of the plaintiff and the defendant. This status is
the res over which the Philippine court has acquired jurisdiction. This is also the kind of action which the
Supreme Court had ruled that service of summons may be served extraterritorially under Section 15
(formerly Section 17) of Rule 14 and where such service of summons is not for the purpose of vesting the
trial court with jurisdiction over the person of the defendant but only for the purpose of complying with the
requirements of fair play and due process. A fortiori, the court a quo had properly acquired jurisdiction over
the person of herein petitioner-defendant when summons was served by publication and a copy of the
summons, the complaint with annexes, together with the Order of June 28, 1991, was served to the
defendant through the Department of Foreign Affairs by registered mail and duly received by said office to
top it all. Such mode was upon instruction and lawful order of the court and could even be treated as ‘any
other manner the court may deem sufficient’. 8

Hence, the instant petition.

The Issues

The issues raised by Margarita are restated as follows:

I. Whether Margarita was validly served with summons in the case for declaration of nullity of her marriage
with Abelardo;

II. Whether there was extrinsic fraud in the preparation and filing by Abelardo of the Petition for Dissolution
of the Conjugal Partnership of Gains and its annex, the Agreement of Separation of Properties.

The Court’s Ruling

The petition is bereft of merit.

First Issue: Validity of the Service of Summons on Margarita

Margarita insists that the trial court never acquired jurisdiction over her person in the petition for declaration of nullity
of marriage since she was never validly served with summons. Neither did she appear in court to submit voluntarily
to its jurisdiction.

On the other hand, Abelardo argues that jurisdiction over the person of a non-resident defendant in an action in
rem or quasi in rem is not necessary. The trial and appellate courts made a clear factual finding that there was
proper summons by publication effected through the Department of Foreign Affairs as directed by the trial court.
Thus, the trial court acquired jurisdiction to render the decision declaring the marriage a nullity.

Summons is a writ by which the defendant is notified of the action brought against him. Service of such writ is the
means by which the court acquires jurisdiction over his person. 9

As a rule, when the defendant does not reside and is not found in the Philippines, Philippine courts cannot try any
case against him because of the impossibility of acquiring jurisdiction over his person unless he voluntarily appears
in court. But when the case is one of actions in rem or quasi in rem enumerated in Section 15,10 Rule 14 of the Rules
of Court, Philippine courts have jurisdiction to hear and decide the case. In such instances, Philippine courts have
jurisdiction over the res, and jurisdiction over the person of the non-resident defendant is not essential. 11
Actions in personam12 and actions in rem or quasi in rem differ in that actions in personam are directed against
specific persons and seek personal judgments. On the other hand, actions in rem or quasi in rem are directed
against the thing or property or status of a person and seek judgments with respect thereto as against the whole
world.13

At the time Abelardo filed the petition for nullity of the marriage in 1991, Margarita was residing in the United States.
She left the Philippines in 1982 together with her two children. The trial court considered Margarita a non-resident
defendant who is not found in the Philippines. Since the petition affects the personal status of the plaintiff, the trial
court authorized extraterritorial service of summons under Section 15, Rule 14 of the Rules of Court. The term
"personal status" includes family relations, particularly the relations between husband and wife. 14

Under Section 15 of Rule 14, a defendant who is a non-resident and is not found in the country may be served with
summons by extraterritorial service in four instances: (1) when the action affects the personal status of the
plaintiff; (2) when the action relates to, or the subject of which is property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent; (3) when the relief demanded consists, wholly or in
part, in excluding the defendant from any interest in property located in the Philippines; or (4) when the property of
the defendant has been attached within the Philippines.

In these instances, extraterritorial service of summons may be effected under any of three modes: (1) by personal
service out of the country, with leave of court; (2) by publication and sending a copy of the summons and order of
the court by registered mail to the defendant’s last known address, also with leave of court; or (3) by any other
means the judge may consider sufficient.

Applying the foregoing rule, the trial court required extraterritorial service of summons to be effected on Margarita in
the following manner:

x x x, service of Summons by way of publication in a newspaper of general circulation once a week for three
(3) consecutive weeks, at the same time, furnishing respondent copy of this Order as well as the
corresponding Summons and copy of the petition at her given address at No. 96 Mulberry Lane, Atherton,
California, U.S.A., thru the Department of Foreign Affairs, all at the expense of petitioner. 15 (Emphasis
ours)

The trial court’s prescribed mode of extraterritorial service does not fall under the first or second mode specified in
Section 15 of Rule 14, but under the third mode. This refers to "any other means that the judge may consider
sufficient."

The Process Server’s Return of 15 July 1991 shows that the summons addressed to Margarita together with the
complaint and its annexes were sent by mail to the Department of Foreign Affairs with acknowledgment of receipt.
The Process Server’s certificate of service of summons is prima facie evidence of the facts as set out in the
certificate.16 Before proceeding to declare the marriage between Margarita and Abelardo null and void, the trial court
stated in its Decision dated 8 November 1991 that "compliance with the jurisdictional requirements
hav(e) (sic) been duly established." We hold that delivery to the Department of Foreign Affairs was sufficient
compliance with the rule. After all, this is exactly what the trial court required and considered as sufficient to effect
service of summons under the third mode of extraterritorial service pursuant to Section 15 of Rule 14.

Second Issue: Validity of the Judgment Dissolving the Conjugal Partnership of Gains

Margarita claims that Abelardo coerced her into signing the Petition for Dissolution of the Conjugal Partnership of
Gains ("Petition") and its annex, the Agreement of Separation of Properties ("Agreement"). Abelardo allegedly
threatened to cut off all financial and material support to their children if Margarita did not sign the documents.

The trial court did not find anything amiss in the Petition and Agreement that Abelardo filed, and thus the trial court
approved the same. The Court of Appeals noted that a meticulous perusal of the Petition and Agreement readily
shows that Margarita signed the same on the proper space after the prayer and on the portion for the verification of
the petition. The Court of Appeals observed further that on 6 August 1990, Margarita appeared before Consul
Amado Cortez in the Philippine Consulate Office in San Francisco, California, to affirm that she executed the
Agreement of her own free will. There was no showing that Abelardo was at that time with her at the Philippine
Consulate Office. Abelardo secured judicial approval of the Agreement as specifically required in the Agreement.

The Court is bound by the factual findings of the trial and appellate courts that the parties freely and voluntarily
executed the documents and that there is no showing of coercion or fraud. As a rule, in an appeal
by certiorari under Rule 45, the Court does not pass upon questions of fact as the factual findings of the trial and
appellate courts are binding on the Court. The Court is not a trier of facts. The Court will not examine the evidence
introduced by the parties below to determine if the trial and appellate courts correctly assessed and evaluated the
evidence on record.17

The due and regular execution of an instrument acknowledged before an officer authorized to administer oaths
cannot be overthrown by bare allegations of coercion but only by clear and convincing proof. 18 A person
acknowledging an instrument before an officer authorized to administer oaths acknowledges that he freely and
voluntarily executed the instrument, giving rise to a prima facie presumption of such fact.

In the instant case, Margarita acknowledged the Agreement before Consul Cortez. The certificate of
acknowledgment signed by Consul Cortez states that Margarita personally appeared before him and "acknowledged
before me that SHE executed the same of her own free will and deed."19 Thus, there is a prima facie presumption
that Margarita freely and voluntarily executed the Agreement. Margarita has failed to rebut this prima
facie presumption with clear and convincing proof of coercion on the part of Abelardo.

A document acknowledged before a notary public is prima facie evidence of the due and regular execution of the
document.20 A notarized document has in its favor the presumption of regularity in its execution, and to contradict the
same, there must be evidence that is clear, convincing and more than merely preponderant. 21

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. SP No. 58487 dismissing the petition to annul
judgment is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, Ynares-Santiago, and Azcuna, JJ., concur.

- Valmonte v, CA GR 108538 Jan. 22, 1996

LOURDES A. VALMONTE and ALFREDO D. VALMONTE, petitioners, vs.

THE HONORABLE COURT OF APPEALS, THIRD DIVISION and ROSITA DIMALANTA, respondents.

DECISION

MENDOZA, J.:

Petitioner Lourdes A. Valmonte is a foreign resident. The question is whether in an action for partition filed
against her and her husband, who is also her attorney, summons intended for her may be served on her husband,
who has a law office in the Philippines. The Regional Trial Court of Manila, Branch 48, said no and refused to
declare Lourdes A. Valmonte in default, but the Court of Appeals said yes. Hence this petition for review
on certiorari.

The facts of the case are as follows:

Petitioners Lourdes A. Valmonte and Alfredo D. Valmonte are husband and wife. They are both residents of
90222 Carkeek Drive South Seattle, Washington, U.S.A. Petitioner Alfredo D. Valmonte, who is a member of the
Philippine bar, however, practices his profession in the Philippines, commuting for this purpose between his
residence in the state of Washington and Manila, where he holds office at S-304 Gedisco Centre, 1564 A. Mabini
Ermita, Manila.

On March 9, 1992, private respondent Rosita Dimalanta, who is the sister of petitioner Lourdes A. Valmonte,
filed a complaint for partition of real property and accounting of rentals against petitioners Lourdes A. Valmonte and
Alfredo D. Valmonte before the Regional Trial Court of Manila, Branch 48. The subject of the action is a three-door
apartment located in Paco, Manila.

In her Complaint, private respondent alleged:

The plaintiff is of legal age, a widow and is at present a resident of 14823 Conway Road, Chesterfield,
Missouri, U.S.A., while the defendants are spouses, of legal age and at present residents of 90222 Carkeek
Drive, South Seattle, Washington, U.S.A., but, for purposes of this complaint may be served with summons
at Gedisco Center, Unit 304, 1564 A. Mabini St., Ermita, Manila where defendant Alfredo D. Valmonte as
defendant Lourdes Arreola Valmonte's spouse holds office and where he can be found.

Apparently, the foregoing averments were made on the basis of a letter previously sent by petitioner Lourdes A.
Valmonte to private respondent's counsel in which, in regard to the partition of the property in question, she referred
private respondent's counsel to her husband as the party to whom all communications intended for her should be
sent. The letter reads:

July 4, 1991

Dear Atty. Balgos:

This is in response to your letter, dated 20 June 1991, which I received on 3 July 1991. Please address
all communications to my lawyer, Atty. Alfredo D. Valmonte, whose address, telephone and fax numbers
appear below.
 c/o Prime Marine
Gedisco Center, Unit 304
1564 A. Mabini, Ermita
Metro Manila
Telephone: 521-1736
Fax: 521-2095

Service of summons was then made upon petitioner Alfredo D. Valmonte, who at the time, was at his office in
Manila. Petitioner Alfredo D. Valmonte accepted the summons, insofar as he was concerned, but refused to accept
the summons for his wife, Lourdes A. Valmonte, on the ground that he was not authorized to accept the process on
her behalf. Accordingly, the process server left without leaving a copy of the summons and complaint for petitioner
Lourdes A. Valmonte.

Petitioner Alfredo D. Valmonte thereafter filed his Answer with Counterclaim. Petitioner Lourdes A. Valmonte,
however, did not file her Answer. For this reason private respondent moved to declare her in default. Petitioner
Alfredo D. Valmonte entered a special appearance in behalf of his wife and opposed the private respondent's
motion.

In its Order dated July 3, 1992, the trial court, denied private respondent's motion to declare petitioner Lourdes
A. Valmonte in default. A motion for reconsideration was similarly denied on September 23, 1992. Whereupon,
private respondent filed a petition for certiorari, prohibition and mandamus with the Court of Appeals.

On December 29, 1992, the Court of Appeals rendered a decision granting the petition and declaring Lourdes A.
Valmonte in default. A copy of the appellate court's decision was received by petitioner Alfredo D. Valmonte on
January 15, 1993 at his Manila office and on January 21, 1993 in Seattle, Washington. Hence, this petition.

The issue at bar is whether in light of the facts set forth above, petitioner Lourdes A. Valmonte was validly
served with summons. In holding that she had been, the Court of Appeals stated: 1

[I]n her above-quoted reply, Mrs. Valmonte clearly and unequivocally directed the aforementioned counsel of
Dimalanta to address all communications (evidently referring to her controversy with her sister Mrs. Dimalanta over
the Paco property, now the subject of the instant case) to her lawyer who happens also to be her husband. Such
directive was made without any qualification just as was her choice/designation of her husband Atty. Valmonte as
her lawyer likewise made without any qualification or reservation. Any disclaimer therefore on the part of Atty.
Valmonte as to his being his wife's attorney (at least with regard to the dispute vis-a-vis (sic) the Paco property)
would appear to be feeble or trifling, if not incredible.

This view is bolstered by Atty. Valmonte's subsequent alleged special appearance made on behalf of his wife.
Whereas Mrs. Valmonte had manifestly authorized her husband to serve as her lawyer relative to her dispute with
her sister over the Paco property and to receive all communications regarding the same and subsequently to appear
on her behalf by way of a so-called special appearance, she would nonetheless now insist that the same husband
would nonetheless have absolutely no authority to receive summons on her behalf. In effect, she is asserting that
representation by her lawyer (who is also her husband) as far as the Paco property controversy is concerned,
should only be made by him when such representation would be favorable to her but not otherwise. It would
obviously be inequitable for this Court to allow private respondent Lourdes A. Valmonte to hold that her husband
has the authority to represent her when an advantage is to be obtained by her and to deny such authority when it
would turn out to be her disadvantage. If this be allowed, Our Rules of Court, instead of being an instrument to
promote justice would be made use of to thwart or frustrate the same.

xxx xxx xxx

Turning to another point, it would not do for Us to overlook the fact that the disputed summons was
served not upon just an ordinary lawyer of private respondent Lourdes A. Valmonte, but upon her lawyer
husband. But that is not all, the same lawyer/husband happens to be also her co-defendant in the instant
case which involves real property which, according to her lawyer/husband/co-defendant, belongs to the
conjugal partnership of the defendants (the spouses Valmonte). It is highly inconceivable and certainly it
would be contrary to human nature for the lawyer/husband/co-defendant to keep to himself the fact that they
(the spouses Valmonte) had been sued with regard to a property which, he claims to be conjugal.
Parenthetically, there is nothing in the records of the case before Us regarding any manifestation by private
respondent Lourdes A. Valmonte about her lack of knowledge about the case instituted against her and her
lawyer/husband/co-defendant by her sister Rosita. . . .

PREMISES CONSIDERED, the instant petition for certiorari, prohibition and mandamus is given due
course. This Court hereby Resolves to nullify the orders of the court a quo dated July 3, 1992 and
September 23, 1992 and further declares private respondent Lourdes Arreola Valmonte as having been
properly served with summons.

Petitioners assail the aforequoted decision, alleging that the Court of Appeals erred (1) in refusing to apply the
provisions of Rule 14, §17 of the Revised Rules of Court and applying instead Rule 14, §8 when the fact is that
petitioner Lourdes A. Valmonte is a nonresident defendant; and (2) because even if Rule 14, §8 is the applicable
provision, there was no valid substituted service as there was no strict compliance with the requirement by leaving a
copy of the summons and complaint with petitioner Alfredo D. Valmonte. Private respondent, upon the other hand,
asserts that petitioners are invoking a technicality and that strict adherence to the rules would only result in a
useless ceremony.

We hold that there was no valid service of process on Lourdes A. Valmonte.

To provide perspective, it will be helpful to determine first the nature of the action filed against petitioners
Lourdes A. Valmonte and Alfredo D. Valmonte by private respondent, whether it is an action in personam, in
rem or quasi in rem. This is because the rules on service of summons embodied in Rule 14 apply according to
whether an action is one or the other of these actions.

In an action in personam, personal service of summons or, if this is not possible and he cannot be personally
served, substituted service, as provided in Rule 14, §§7-8 is essential for the acquisition by the court of jurisdiction
2

over the person of a defendant who does not voluntarily submit himself to the authority of the court. If defendant
3

cannot be served with summons because he is temporarily abroad, but otherwise he is a Philippine resident, service
of summons may, by leave of court, be made by publication. Otherwise stated, a resident defendant in an action in
4

personam, who cannot be personally served with summons, may be summoned either by means of substituted
service in accordance with Rule 14, §8 or by publication as provided in §§ 17 and 18 of the same Rule. 5

In all of these cases, it should be noted, defendant must be a resident of the Philippines, otherwise an action in
personam cannot be brought because jurisdiction over his person is essential to make a binding decision.

On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not
essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a
nonresident and he is not found in the country, summons may be served exterritorially in accordance with Rule 14,
§17, which provides:

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

In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over
the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines or the property litigated or
attached.

Service of summons in the manner provided in §17 is not for the purpose of vesting it with jurisdiction but for
complying with the requirements of fair play or due process, so that he will be informed of the pendency of the action
against him and the possibility that property in the Philippines belonging to him or in which he has an interest may
be subjected to a judgment in favor of the plaintiff and he can thereby take steps to protect his interest if he is so
minded. 6

Applying the foregoing rules to the case at bar, private respondent's action, which is for partition and accounting
under Rule 69, is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting
the defendant's interest in a specific property and not to render a judgment against him. As explained in the leading
case of Banco Español Filipino v. Palanca : 7

[An action quasi in rem is] an action which while not strictly speaking an action in rem partakes of that nature
and is substantially such. . . . The action quasi in rem differs from the true action in rem in the circumstance that in
the former an individual is named as defendant and the purpose of the proceeding is to subject his interest therein
to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other
disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in a
general way thus designated. The judgment entered in these proceedings is conclusive only between the parties.

As petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of summons on
her must be in accordance with Rule 14, §17. Such service, to be effective outside the Philippines, must be made
either (1) by personal service; (2) by publication in a newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the summons and order of the court should be sent by
registered mail to the last known address of the defendant; or (3) in any other manner which the court may deem
sufficient.
 Since in the case at bar, the service of summons upon petitioner Lourdes A. Valmonte was not done by means
of any of the first two modes, the question is whether the service on her attorney, petitioner Alfredo D. Valmonte,
can be justified under the third mode, namely, "in any . . . manner the court may deem sufficient."

We hold it cannot. This mode of service, like the first two, must be made outside the Philippines, such as
through the Philippine Embassy in the foreign country where the defendant resides. Moreover, there are several
8

reasons why the service of summons on Atty. Alfredo D. Valmonte cannot be considered a valid service of
summons on petitioner Lourdes A. Valmonte. In the first place, service of summons on petitioner Alfredo D.
Valmonte was not made upon the order of the court as required by Rule 14, §17 and certainly was not a mode
deemed sufficient by the court which in fact refused to consider the service to be valid and, on that basis, declare
petitioner Lourdes A. Valmonte in default for her failure to file an answer.

In the second place, service in the attempted manner on petitioner was not made upon prior leave of the trial
court as required also in Rule 14, §17. As provided in §19, such leave must be applied for by motion in writing,
supported by affidavit of the plaintiff or some person on his behalf and setting forth the grounds for the application.

Finally, and most importantly, because there was no order granting such leave, petitioner Lourdes A. Valmonte
was not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days after
notice. It must be noted that the period to file an Answer in an action against a resident defendant differs from the
period given in an action filed against a nonresident defendant who is not found in the Philippines. In the former, the
period is fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from notice.

Strict compliance with these requirements alone can assure observance of due process. That is why in one
case, although the Court considered publication in the Philippines of the summons (against the contention that it
9

should be made in the foreign state where defendant was residing) sufficient, nonetheless the service was
considered insufficient because no copy of the summons was sent to the last known correct address in the
Philippines..

Private respondent cites the ruling in De Leon v. Hontanosas, 67 SCRA 458,462-463 (1975), in which it was
held that service of summons upon the defendant's husband was binding on her. But the ruling in that case is
justified because summons were served upon defendant's husband in their conjugal home in Cebu City and the wife
was only temporarily absent, having gone to Dumaguete City for a vacation. The action was for collection of a sum
of money. In accordance with Rule 14, §8, substituted service could be made on any person of sufficient discretion
in the dwelling place of the defendant, and certainly defendant's husband, who was there, was competent to receive
the summons on her behalf. In any event, it appears that defendant in that case submitted to the jurisdiction of the
court by instructing her husband to move for the dissolution of the writ of attachment issued in that case.

On the other hand, in the case of Gemperle v. Schenker, it was held that service on the wife of a nonresident
10

defendant was found sufficient because the defendant had appointed his wife as his attorney-in-fact. It was held that
although defendant Paul Schenker was a Swiss citizen and resident of Switzerland, service of summons upon his
wife Helen Schenker who was in the Philippines was sufficient because she was her husband's representative and
attorney-in-fact in a civil case, which he had earlier filed against William Gemperle. In fact Gemperle's action was for
damages arising from allegedly derogatory statements contained in the complaint filed in the first case. As this Court
said, "[i]n other words, Mrs. Schenker had authority to sue, and had actually sued, on behalf of her husband, so that
she was, also, empowered to represent him in suits filed against him, particularly in a case, like the one at bar,
which is a consequence of the action brought by her on his behalf" Indeed, if instead of filing an independent action
11

Gemperle filed a counterclaim in the action brought by Mr. Schenker against him, there would have been no doubt
that the trial court could have acquired jurisdiction over Mr. Schenker through his agent and attorney-in-fact, Mrs.
Schenker.

In contrast, in the case at bar, petitioner Lourdes A. Valmonte did not appoint her husband as her attorney-in-
fact. Although she wrote private res- pondent's attorney that "all communications" intended for her should be
addressed to her husband who is also her lawyer at the latter's address in Manila, no power of attorney to receive
summons for her can be inferred therefrom. In fact the letter was written seven months before the filing of this case
below, and it appears that it was written in connection with the negotiations between her and her sister, respondent
Rosita Dimalanta, concerning the partition of the property in question. As is usual in negotiations of this kind, the
exchange of correspondence was carried on by counsel for the parties. But the authority given to petitioner's
husband in these negotiations certainly cannot be construed as also including an authority to represent her in any
litigation.

For the foregoing reasons, we hold that there was no valid service on petitioner Lourdes A. Valmonte in this
case.

WHEREFORE, the decision appealed from is REVERSED and the orders dated July 3, 1992 and September
23, 1992 of the Regional Trial Court of Manila, Branch 48 are REINSTATED.

SO ORDERED.

Regalado, Romero and Puno, JJ., concur.

Jurisdiction in relation to other principles in law
Jurisdiction and laches and estoppel
Jurisdiction and Compromise Agreement
Jurisdiction and Motion to Dismiss
Jurisdiction and Presumption of jurisdiction

Cases: General Principles on Jurisdiction

- Glynna Foronda-Crystal Vs Aniana Lawas Son G.R. No. 221815 November29, 2017

GLYNNA FORONDA-CRYSTAL, PETITIONER, V. ANIANA LAWAS SON, RESPONDENT.

DECISION
REYES, JR., J:
In law, nothing is as elementary as the concept of jurisdiction, for the same is the foundation upon which the courts exercise their power
of adjudication, and without which, no rights or obligation could emanate from any decision or resolution.
The Case
Challenged before this Court via this Petition for Review on Certiorari under Rule 45 of the Rules of Court is the Decision[1] of the Court
of Appeals (CA) in CA-G.R. CV No. 02226 promulgated on March 12, 2015, which affirmed in toto the Decision[2] dated November 24,
2006 of the Regional Trial Court (RTC), Branch 55 of Mandaue City. Likewise challenged is the subsequent Resolution[3] promulgated
on October 19, 2015 which upheld the earlier decision.
The Antecedent Facts
Petitioner is the daughter of Eddie Foronda, the registered owner of a parcel of land located in Barrio Magay, Municipality of
Compostela, Province of Cebu. The latter derived his title over the property from a successful grant of a Free Patent (Free Patent No.
VII-519533), which is covered by Original Certificate of Title (OCT) No. OP-37324, more particularly described as follows:

A PARCEL OF LAND (lot 1280, Case 3, Pls .962) situated in the Barrio of Magay, Municipality of Compostela, Province of Cebu, Island
of Cebu. Bounded on the SE., along line 1-2 by Lot 707 (As 07-01-000033-amended); along line 2-3 by Lot 1275; on the SW., along
line 3-4 by Lot 1281; on the NW., along line 4-5 by Lot 1315; along line 5-6 by Lot 1314; on the NE., along line 6-7 by Lot 1392, along
line 7-1 by Lot 1279, all of Compostela, Cadastre x x x.[4]

On March 15, 1999, Aniana Lawas Son (respondent) instituted an action for reconveyance and damages against Glynna Foronda-
Crystal (petitioner) alleging that, for twelve and a half years, she has been the lawful owner and possessor of the subject lot. She
alleged that she purchased the same from a certain Eleno T. Arias (Arias) on August 4, 1986 for a sum of P200,000.00. According to
her, since her acquisition, she has been religiously paying real property taxes thereon as evidenced by Tax Declaration No. 16408A,
which was issued under her name.[5]

According to the respondent, the issuance of the Free Patent in favor of the petitioner's father was "due to gross error or any other
cause."[6] In support thereof, the respondent alleged that "there is no tax declaration in the name of patentee Eddie Foronda" and that
this "goes to show that Eddie Foronda is not the owner of lot 1280 and neither has payment of real estate taxes been made by him
when he was still alive or by his heirs."[7]

On April 13, 1999, herein petitioner filed a motion to dismiss on the grounds of (1) lack of jurisdiction, (2) venue is improperly laid, (3)
action has prescribed, and, (4) lack of cause of action. A week thereafter, the RTC issued an Order dated April 20, 1999,[8] which
dismissed the case for lack of jurisdiction. The RTC asserted that the "market value of the subject property per Tax Declaration No.
16408 (Annex B, Complaint) is P2,830.00" and thus, jurisdiction over the case lies with the Municipal Circuit Trial Court of Liloan-
Compostela, Cebu.

However, in yet another Order[9] dated July 23, 1999, issued by the RTC following herein respondent's motion for reconsideration, the
RTC reconsidered and set aside its earlier ruling based on the following ratiocination: (1) Paragraph III of the Complaint stated that the
property was worth P200,000.00; (2) the Court has "judicial knowledge that under the BIR zonal valuation, the property located at
Magay, Compostela, Cebu carries the value that may summed (sic) up to more than P20,000.00 for the property with an area of 1,570
square meters";[10] and (3) the "tax declaration, sometimes being undervalued, is not controlling."[11] Hence, trial ensued.
On November 24, 2006, the RTC rendered its Decision in favor of the respondent. The Register of Deeds of Cebu was ordered to
cancel OCT No. OP-37324, and to issue, in lieu thereof, a new one under the name of the respondent. The dispositive portion of the
decision reads:

WHEREFORE, premises considered, judgment in favor of the plaintiff and against the defendants:

1) Declaring the issuance of Original Certificate of Title No. OP-37324 (Free Patent No. VII-519533) in the name of Eddie Foronda a
grave error since he is not the owner of Lot 1280, and therefore null and void;

2) Ordering the Register of Deeds of Cebu to cancel Original Certificate of Title No. OP-37324 (Free Patent No. VII-519533) and to
issue, in lieu thereof, a new one in the name of Aniana Lawas Son of Compostela, Cebu. No pronouncement as to damages and costs
of the suit.

SO ORDERED.[12]
Aggrieved, petitioner herein elevated the case to the CA. The material allegations that she presented included the following: (1) the
RTC rendered its decision with undue haste considering that the same was promulgated even before the expiration of the period within
which the parties' respective memoranda were to be filed; (2) the respondent was not able to prove that the lot she acquired from Arias
was Lot No. 1280; (3) the respondent failed to prove that she was in actual physical possession of the subject property whereas the
petitioner was able to do so since 1972; (4) the RTC erred in its order to cancel OCT No. OP-37324 and to issue, in lieu thereof, a new
title in herein respondent's name; and (5) the action filed by the respondent was already barred by prescription and laches.

On March 12, 2015, the CA rendered the assailed Decision, which affirmed the RTC decision. The fallo of CA decision reads:
WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Regional Trial Court, Branch 55, Mandaue City
dated November 24, 2006 in Civil Case No. MAN-3498, is hereby AFFIRMED.
SO ORDERED.[13]
On October 19, 2015, the Resolution[14] issued by the CA denied the petitioner's motion for reconsideration. Hence, this petition for
review on certiorari under Rule 45 of the Rules of Court.
The Issues
The petitioner anchors her plea for the reversal of the assailed decision on the following grounds:[15]
I. THE COURT OF APPEALS ERRED IN NOT DISMISSING THIS CASE ON THE GROUND OF LACK OF JURISDICTION OF
THE RTC OF MANDAUE CITY OVER THIS CASE AS THE ASSESSED VALUE OF THE PROPERTY SUBJECT OF
THIS CASE IS P1,030.00 AND THE PROPERTY IS LOCATED IN COMPOSTELA, CEBU.

II. THE COURT OF APPEALS ERRED IN NOT DECLARING THE PROCEEDINGS AS WELL AS THE JUDGMENT
RENDERED BY THE RTC AS VOID

III. THE COURT OF APPEALS ERRED IN NOT APPLYING ARTICLE 434 OF THE CIVIL CODE TO THE CASE AT BAR

IV. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT LOT NO. 1280 WAS A PUBLIC GRANT TO WHICH EDDIE
FORONDA WAS ISSUED A FREE PATENT

V. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ACTION IS BARRED BY PRESCRIPTION VI. THE
COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ACTION IS BARRED BY PRESCRIPTION (SIC) VII. THE
COURT OF APPEALS ERRED IN NOT HOLDING THAT THE VALIDITY AND INTEGRITY OF THE DECISION OF THE
RTC IS QUESTIONABLE BECAUSE IT WAS RENDERED WITH UNDUE HASTE.
The foregoing assignment of errors could be summarized in three main issues: (1) whether or not the RTC validly acquired jurisdiction
over the case, and whether or not the RTC decision was void ab initio; (2) whether or not the Original Certificate of Title issued under
the name of petitioner's father should be canceled and set aside on the strength of the respondent's allegations of ownership over the
same; and (3) whether or not the action is already barred by prescription.
The Court's Ruling
The petition is impressed with merit.

On the Issue of Jurisdiction

Jurisdiction is defined as the power and authority of a court to hear, try, and decide a case.[16] In order for the court or an adjudicative
body to have authority to dispose of the case on the merits, it must acquire, among others, jurisdiction over the subject matter. [17] It is
axiomatic that jurisdiction over the subject matter is the power to hear and determine the general class to which the proceedings in
question belong; it is conferred by law and not by the consent or acquiescence of any or all of the parties or by erroneous belief of the
court that it exists.[18]
What is relevant in this case, therefore, is the delineation provided for by law which separates the jurisdictions of the second level
courts—the Regional Trial Courts—and the first level courts—the Metropolitan Trial Courts (MeTC), Municipal Trial Courts (MTC),
Municipal Circuit Trial Courts (MCTC), and Municipal Trial Courts in the Cities (MTCC).

This can be easily ascertained through a reading of the Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691.[19]
According to this law, in all civil actions which involve title to, or possession of, real property, or any interest therein, the RTC shall
exercise exclusive original jurisdiction where the assessed value of the property exceeds P20,000.00 or, for civil actions in Metro
Manila, where such value exceeds P50,000.00.[20] For those below the foregoing threshold amounts, exclusive jurisdiction lies with the
MeTC, MTC, MCTC, or MTCC.[21]
For a full discourse on the resolution of the present petition, emphasis must be given on the assessed values[22]—not the fair market
values—of the real properties concerned.
According to the case of Heirs of Concha, Sr. v. Spouses Lumocso,[23] the law is emphatic that in determining which court has
jurisdiction, it is only the assessed value of the realty involved that should be computed. Heirs of Concha, Sr. averred this definitive
ruling by tracing the history of the The Judiciary Reorganization Act of 1980, as amended. It said:
The original text of Section 19(2) of B.P. 129 as well as its forerunner, Section 44(b) of R.A. 296, as amended, gave the RTCs x x x
exclusive original jurisdiction. x x x Thus, under the old law, there was no substantial effect on jurisdiction whether a case is one, the
subject matter of which was incapable of pecuniary estimation, under Section 19(1) of B.P. 129 or one involving title to property under
Section 19(2).

The distinction between the two classes became crucial with the amendment introduced by R.A. No. 7691 in 1994 which expanded the
exclusive original jurisdiction of the first level courts. x x x. Thus, under the present law, original jurisdiction over cases the subject
matter of which involves "title to, possession of, real property or any interest therein" under Section 19(2) of B.P. 129 is divided between
the first and second level courts, with the assessed value of the real property involved as the benchmark. This amendment was
introduced to "unclog the overloaded dockets of the RTCs which would result in the speedier administration of justice."[24] (Emphasis,
underscoring and formatting supplied, citations omitted)
Time and again, this Court has continuously upheld Heirs of Concha, Sr.'s ruling on this provision of law.[25] In fact, in Malana, et al. v.
Tappa, et al.[26] the Court said that "the Judiciary Reorganization Act of 1980, as amended, uses the word 'shall' and explicitly requires
the MTC to exercise exclusive original jurisdiction over all civil actions which involve title to or possession of real property where the
assessed value does not exceed P20,000.00."[27]
To determine the assessed value, which would in turn determine the court with appropriate jurisdiction, an examination of the
allegations in the complaint is necessary. It is a hornbook doctrine that the court should only look into the facts alleged in the complaint
to determine whether a suit is within its jurisdiction.[28] According to the case of Spouses Cruz v. Spouses Cruz, et al.,[29] only these facts
can be the basis of the court's competence to take cognizance of a case, and that one cannot advert to anything not set forth in the
complaint, such as evidence adduced at the trial, to determine the nature of the action thereby initiated.[30]
It is not a surprise, therefore, that a failure to allege the assessed value of a real property in the complaint would result to a dismissal of
the case. This is because absent any allegation in the complaint of the assessed value of the property, it cannot be determined whether
the RTC or the MTC has original and exclusive jurisdiction over the petitioner's action. Indeed, the courts cannot take judicial notice of
the assessed or market value of the land.[31] This is the same ratio put forth by the Court in the case of Spouses Cruz v. Spouses Cruz,
et al.,[32] where the case was dismissed partly on the basis of the following:
The complaint did not contain any such allegation on the assessed value of the property. There is no showing on the face of the
complaint that the RTC had jurisdiction over the action of petitioners. Indeed, absent any allegation in the complaint of the assessed
value of the property, it cannot be determined whether it is the RTC or the MTC which has original and exclusive jurisdiction over the
petitioners' action.[33] (Citations omitted)
In Quinagoran v. Court of Appeals,[34] the Court had no qualms in dismissing the case for failing to allege the assessed value of the
subject property. Similar to Spouses Cruz,[35] Quinagoran[36] held that: "Considering that the respondents failed to allege in their
complaint the assessed value of the subject property, the RTC seriously erred in denying the motion to dismiss. Consequently, all
proceedings in the RTC are null and void, and the CA erred in affirming the RTC."
This is not to say, however, that there is no room for a liberal interpretation of this rule. In Tumpag v. Tumpag,[37] the Court, through
Justice Brion, provided for an instance when an exception to the strict application could be allowed. It said:
Generally, the court should only look into the facts alleged in the complaint to determine whether a suit is within its jurisdiction. There
may be instances, however, when a rigid application of this rule may result in defeating substantial justice or in prejudice to a party's
substantial right.[38]
In that case, there was also no allegation of the assessed value of the property. However, the Court pointed out that the facts contained
in the Declaration of Real Property, which was attached to the complaint, could have facially resolved the question on jurisdiction and
would have rendered the lengthy litigation on that very point unnecessary.[39] In essence, the Court said that the failure to allege the real
property's assessed value in the complaint would not be fatal if, in the documents annexed to the complaint, an allegation of the
assessed value could be found.
A reading of the quoted cases would reveal a pattern which would invariably guide both the bench and the bar in similar situations.
Based on the foregoing, the rule on determining the assessed value of a real property, insofar as the identification of the jurisdiction of
the first and second level courts is concerned, would be two-tiered:

First, the general rule is that jurisdiction is determined by the assessed value of the real property as alleged in the complaint; and

Second, the rule would be liberally applied if the assessed value of the property, while not alleged in the complaint, could still be
identified through a facial examination of the documents already attached to the complaint.

Indeed, it is by adopting this two-tiered rule that the Court could dispense with a catena of cases specifically dealing with issues
concerning jurisdiction over real properties.

In upholding these afore-quoted rule, however, the Court is not unmindful of the cases of Barangay Piapi v. Talip[40] and Trayvilla v.
Sejas[41] where the market value of the property, instead of the assessed value thereof, was used by the Court as basis for determining
jurisdiction.
In Barangay Piapi,[42] the complaint did not allege the assessed value of the subject property. What it alleged was the market value
thereof. The Court held that, in the absence of an allegation of assessed value in the complaint, the Court shall consider the alleged
market value to determine jurisdiction.
Notably, this case referred to Section 7(b), Rule 141 of the Rules of Court, which deals with Legal Fees, to justify its reliance on the
market value. It said:

The Rule requires that "the assessed value of the property, or if there is none, the estimated value thereof, shall be alleged by
the claimant." It bears reiterating that what determines jurisdiction is the allegations in the complaint and the reliefs prayed for.
Petitioners' complaint is for reconveyance of a parcel of land. Considering that their action involves the title to or interest in real
property, they should have alleged therein its assessed value. However, they only specified the market value or estimated value, which
is P15,000.00. Pursuant to the provision of Section 33 (3) quoted earlier, it is the Municipal Circuit Trial Court of Padada-Kiblawan,
Davao del Sur, not the RTC, which has jurisdiction over the case.[43] (Italics in the original, and emphasis supplied, citations omitted)
However, the rule alluded to above, while originally containing the sentence: "In a real action, the assessed value of the property, or if
there is none, the estimated value thereof shall be alleged by the claimant and shall be the basis in computing the fees," has already
been deleted through an amendment by A.M. No. 04-2-04-SC. As it currently stands, Section 7 of Rule 141 of the Rules of Court reads:

Section 7 Clerks of Regional Trial Courts.—

a) For filing an action or a permissive OR COMPULSORY counter-claim, CROSS-CLAIM, or money claim against an estate not based
on judgment, or for filing a third-party, fourth-party, etc. complaint, or a complaint-in-intervention, if the total sum claimed, INCLUSIVE
OF INTERESTS, PENALTIES, SURCHARGES, DAMAGES OF WHATEVER KIND, AND ATTORNEY'S FEES, LITIGATION
EXPENSES AND COSTS and/or in cases involving property, the FAIR MARKET value of the REAL property in
litigation STATED IN THE CURRENT TAX DECLARATION OR CURRENT ZONAL VALUATION OF THE BUREAU OF INTERNAL
REVENUE, WHICHEVER IS HIGHER, OR IF THERE IS NONE, THE STATED VALUE OF THE PROPERTY IN LITIGATION OR THE
VALUE OF THE PERSONAL PROPERTY IN LITIGATION AS ALLEGED BY THE CLAIMANT, is: x x x (Emphasis and underscoring
supplied)
Two things must be said of this: first, Rule 141 of the Rules of Court concerns the amount of the prescribed filing and docket fees, the
payment of which bestows upon the courts the jurisdiction to entertain the pleadings to be filed;[44] and second, the latest iteration of the
same provision already deleted the phrase "estimated value thereof," such that the determination of the amount of prescribed filing and
docket fees are now based on the following: (a) the fair market value of the real property in litigation stated in the current tax declaration
or current zonal valuation of the Bureau of Internal Revenue; or (b) the stated value of the real or personal property in litigation as
alleged by the claimant.
A reading of the discourse on this would indicate that the jurisdiction referred to above does not deal with the delineation of the
jurisdictions of the first and second level courts, but with the acquisition of jurisdiction by the courts through the payment of the
prescribed filing and docket fees.

This is the same tenor of the Court's decision in Trayvilla. In that case, where no assessed value was likewise alleged in the complaint,
the Court determined jurisdiction by considering the actual amount by which the property was purchased and as written in the Amended
Complaint. The Court stated that:
However, the CA failed to consider that in determining jurisdiction, it could rely on the declaration made in the Amended Complaint that
the property is valued at P6,000,00. The handwritten document sued upon and the pleadings indicate that the property was
purchased by petitioners for the price of P6,000.00. For purposes of filing the civil case against respondents, this amount
should be the stated value of the property in the absence of a current tax declaration or zonal valuation of the BIR.[45] (Emphasis
supplied)
But then again, like the discussion on Barangay Piapi above, Trayvilla was one which dealt with the payment of the required filing and
docket fees. The crux of the case was the acquisition of jurisdiction by payment of docket fees, and not the delineation of the jurisdiction
of the first and second level courts. In fact, Trayvilla interchangeably used the terms "assessed value" and "market value" in a
manner that does not even recognize a difference.
Like Barangay Piapi, therefore, Spouses Trayvilla must not be read in the context of jurisdiction of first and second level courts as
contemplated in the Judiciary Reorganization Act of 1980, as amended,[46] where the assessed values of the properties are required.
These cases must perforce be read in the context of the determination of the actual amount of prescribed filing and docket fees
provided for in Rule 141 of the Rules of Court.
Having laid out the essential rules in determining the jurisdiction of the first and second level courts for civil actions which involve title to,
or possession of, real property, or any interest therein, the Court now shifts focus to the specific circumstances that surround the
current case.

In here, the respondent failed to allege in her complaint the assessed value of the subject property. Rather, what she included therein
was an allegation of its market value amounting to P200,000.00.[47] In the course of the trial, the petitioner asserted that the assessed
value of the property as stated in the tax declaration was merely P1,030.00, and therefore the RTC lacked jurisdiction.
The question thus posed before this Court was whether or not the RTC should have dismissed the case for lack of jurisdiction, and in
the affirmative, whether or not the RTC decision should be rendered void for being issued without jurisdiction.

As discussed above, settled is the requirement that the Judiciary Reorganization Act of 1980, as amended, required the allegation of
the real property's assessed value in the complaint. That the complaint in the present case did not aver the assessed value of the
property is a violation of the law, and generally would be dismissed because the court which would exercise jurisdiction over the case
could not be identified.

However, a liberal interpretation of this law, as opined by the Court in Tumpag,[48] would necessitate an examination of the documents
annexed to the complaint. In this instance, the complaint referred to Tax Declaration No. 16408A, attached therein as Annex "B," which
naturally would contain the assessed value of the property. A perusal thereof would reveal that the property was valued at P2,826.00.
On this basis, it is clear that it is the MTC, and not the RTC, that has jurisdiction over the case. The RTC should have upheld its Order
dated November 8, 2006 which dismissed the same. Consequently, the decision that it rendered is null and void.

In the case of Maslag v. Monzon,[49] the Court had occasion to rule that an order issued by a court declaring that it has original and
exclusive jurisdiction over the subject matter of the case when under the law it has none cannot likewise be given effect. It amounts to
usurpation of jurisdiction which cannot be countenanced. Since the Judiciary Reorganization Act of 1980, as amended, already
apportioned the jurisdiction of the MTC and the RTC in cases involving title to property, neither the courts nor the petitioner could alter
or disregard the same.
In yet another case, Diona v. Balangue,[50] the Court ruled that void judgment for want of jurisdiction is no judgment at all. It cannot be
the source of any right nor the creator of any obligation. No legal rights can emanate from a resolution that is null and void. As said by
the Court in Cañero v. University of the Philippines:[51]
A void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by
any tribunal in which effect is sought to be given to it. It has no legal or binding effect or efficacy for any purpose or at any place. It
cannot affect, impair or create rights. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce. In
other words, a void judgment is regarded as a nullity, and the situation is the same as it would be if there was no judgment.[52]
Thus, considering the foregoing, it would be proper for the Court to immediately dismiss this case without prejudice to the parties' filing
of a new one before the MTC that has jurisdiction over the subject property. Consequently, the other issues raised by the petitioner
need not be discussed further.

WHEREFORE, premises considered, the assailed Decision in CA-G.R. CV No. 02226 dated March 12, 2015, and the Resolution dated
October 19, 2015 of the Court of Appeals, as well as the Decision dated November 24, 2006 of the Regional Trial Court, Branch 55 of
Mandaue City, are hereby ANNULLED and SET ASIDE for being issued without jurisdiction. This is without prejudice to the filing of the
parties of the proper action before the proper court.
SO ORDERED.
Carpio (Chairperson), Peralta, Perlas-Bernabe, and Caguioa, JJ., concur.

- Banco Espanol Filipina v. Palanca 37 Phil. 921

G.R. No. L-11390 March 26, 1918

EL BANCO ESPAÑOL-FILIPINO, plaintiff-appellant, vs.

VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, defendant-appellant.

Aitken and DeSelms for appellant.

Hartigan and Welch for appellee.

STREET, J.:

This action was instituted upon March 31, 1908, by "El Banco Espanol-Filipino" to foreclose a mortgage upon
various parcels of real property situated in the city of Manila. The mortgage in question is dated June 16, 1906, and
was executed by the original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security for a debt
owing by him to the bank. Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing interest at the
rate of 8 per centum per annum, payable at the end of each quarter. It appears that the parties to this mortgage at
that time estimated the value of the property in question at P292,558, which was about P75,000 in excess of the
indebtedness. After the execution of this instrument by the mortgagor, he returned to China which appears to have
been his native country; and he there died, upon January 29, 1810, without again returning to the Philippine Islands.

As the defendant was a nonresident at the time of the institution of the present action, it was necessary for the
plaintiff in the foreclosure proceeding to give notice to the defendant by publication pursuant to section 399 of the
Code of Civil Procedure. An order for publication was accordingly obtained from the court, and publication was
made in due form in a newspaper of the city of Manila. At the same time that the order of the court should deposit in
the post office in a stamped envelope a copy of the summons and complaint directed to the defendant at his last
place of residence, to wit, the city of Amoy, in the Empire of China. This order was made pursuant to the following
provision contained in section 399 of the Code of Civil Procedure:
 In case of publication, where the residence of a nonresident or absent defendant is known, the judge must
direct a copy of the summons and complaint to be forthwith deposited by the clerk in the post-office, postage
prepaid, directed to the person to be served, at his place of residence

Whether the clerk complied with this order does not affirmatively appear. There is, however, among the papers
pertaining to this case, an affidavit, dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the
attorneys of the bank, showing that upon that date he had deposited in the Manila post-office a registered letter,
addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's affidavit,
the summons, and the order of the court directing publication as aforesaid. It appears from the postmaster's receipt
that Bernardo probably used an envelope obtained from the clerk's office, as the receipt purports to show that the
letter emanated from the office.

The cause proceeded in usual course in the Court of First Instance; and the defendant not having appeared,
judgment was, upon July 2, 1908, taken against him by default. Upon July 3, 1908, a decision was rendered in favor
of the plaintiff. In this decision it was recited that publication had been properly made in a periodical, but nothing was
said about this notice having been given mail. The court, upon this occasion, found that the indebtedness of the
defendant amounted to P249,355. 32, with interest from March 31, 1908. Accordingly it was ordered that the
defendant should, on or before July 6, 1908, deliver said amount to the clerk of the court to be applied to the
satisfaction of the judgment, and it was declared that in case of the failure of the defendant to satisfy the judgment
within such period, the mortgage property located in the city of Manila should be exposed to public sale. The
payment contemplated in said order was never made; and upon July 8, 1908, the court ordered the sale of the
property. The sale took place upon July 30, 1908, and the property was bought in by the bank for the sum of
P110,200. Upon August 7, 1908, this sale was confirmed by the court.

About seven years after the confirmation of this sale, or to the precise, upon June 25, 1915, a motion was made in
this cause by Vicente Palanca, as administrator of the estate of the original defendant, Engracio Palanca
Tanquinyeng y Limquingco, wherein the applicant requested the court to set aside the order of default of July 2,
1908, and the judgment rendered upon July 3, 1908, and to vacate all the proceedings subsequent thereto. The
basis of this application, as set forth in the motion itself, was that the order of default and the judgment rendered
thereon were void because the court had never acquired jurisdiction over the defendant or over the subject of the
action.

At the hearing in the court below the application to vacate the judgment was denied, and from this action of the court
Vicente Planca, as administrator of the estate of the original defendant, has appealed. No other feature of the case
is here under consideration than such as related to the action of the court upon said motion.

The case presents several questions of importance, which will be discussed in what appears to be the sequence of
most convenient development. In the first part of this opinion we shall, for the purpose of argument, assume that the
clerk of the Court of First Instance did not obey the order of the court in the matter of mailing the papers which he
was directed to send to the defendant in Amoy; and in this connection we shall consider, first, whether the court
acquired the necessary jurisdiction to enable it to proceed with the foreclosure of the mortgage and, secondly,
whether those proceedings were conducted in such manner as to constitute due process of law.

The word "jurisdiction," as applied to the faculty of exercising judicial power, is used in several different, though
related, senses since it may have reference (1) to the authority of the court to entertain a particular kind of action or
to administer a particular kind of relief, or it may refer to the power of the court over the parties, or (2) over the
property which is the subject to the litigation.

The sovereign authority which organizes a court determines the nature and extent of its powers in general and thus
fixes its competency or jurisdiction with reference to the actions which it may entertain and the relief it may grant.

Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his submission to its
authority, or it is acquired by the coercive power of legal process exerted over the person.

Jurisdiction over the property which is the subject of the litigation may result either from a seizure of the property
under legal process, whereby it is brought into the actual custody of the law, or it may result from the institution of
legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized
and made effective. In the latter case the property, though at all times within the potential power of the court, may
never be taken into actual custody at all. An illustration of the jurisdiction acquired by actual seizure is found in
attachment proceedings, where the property is seized at the beginning of the action, or some subsequent stage of
its progress, and held to abide the final event of the litigation. An illustration of what we term potential jurisdiction
over the res, is found in the proceeding to register the title of land under our system for the registration of land. Here
the court, without taking actual physical control over the property assumes, at the instance of some person claiming
to be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner
against all the world.

In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by
which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is
substantially such. The expression "action in rem" is, in its narrow application, used only with reference to certain
proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation
upon which the proceedings are based. The action quasi rem differs from the true action in rem in the circumstance
that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest
therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other
disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in a
general way thus designated. The judgment entered in these proceedings is conclusive only between the parties.

In speaking of the proceeding to foreclose a mortgage the author of a well known treaties, has said:

Though nominally against person, such suits are to vindicate liens; they proceed upon seizure; they treat
property as primarily indebted; and, with the qualification above-mentioned, they are substantially property
actions. In the civil law, they are styled hypothecary actions, and their sole object is the enforcement of the
lien against the res; in the common law, they would be different in chancery did not treat the conditional
conveyance as a mere hypothecation, and the creditor's right ass an equitable lien; so, in both, the suit is
real action so far as it is against property, and seeks the judicial recognition of a property debt, and an order
for the sale of the res. (Waples, Proceedings In Rem. sec. 607.)

It is true that in proceedings of this character, if the defendant for whom publication is made appears, the action
becomes as to him a personal action and is conducted as such. This, however, does not affect the proposition that
where the defendant fails to appear the action is quasi in rem; and it should therefore be considered with reference
to the principles governing actions in rem.

There is an instructive analogy between the foreclosure proceeding and an action of attachment, concerning which
the Supreme Court of the United States has used the following language:

If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the
property attached remains liable, under the control of the court, to answer to any demand which may be
established against the defendant by the final judgment of the court. But, if there is no appearance of the
defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem,
the only effect of which is to subject the property attached to the payment of the defendant which the court
may find to be due to the plaintiff. (Cooper vs. Reynolds, 10 Wall., 308.)

In an ordinary attachment proceeding, if the defendant is not personally served, the preliminary seizure is to, be
considered necessary in order to confer jurisdiction upon the court. In this case the lien on the property is acquired
by the seizure; and the purpose of the proceedings is to subject the property to that lien. If a lien already exists,
whether created by mortgage, contract, or statute, the preliminary seizure is not necessary; and the court proceeds
to enforce such lien in the manner provided by law precisely as though the property had been seized upon
attachment. (Roller vs. Holly, 176 U. S., 398, 405; 44 L. ed., 520.) It results that the mere circumstance that in an
attachment the property may be seized at the inception of the proceedings, while in the foreclosure suit it is not
taken into legal custody until the time comes for the sale, does not materially affect the fundamental principle
involved in both cases, which is that the court is here exercising a jurisdiction over the property in a proceeding
directed essentially in rem.

Passing now to a consideration of the jurisdiction of the Court of First Instance in a mortgage foreclosure, it is
evident that the court derives its authority to entertain the action primarily from the statutes organizing the court. The
jurisdiction of the court, in this most general sense, over the cause of action is obvious and requires no comment.
Jurisdiction over the person of the defendant, if acquired at all in such an action, is obtained by the voluntary
submission of the defendant or by the personal service of process upon him within the territory where the process is
valid. If, however, the defendant is a nonresident and, remaining beyond the range of the personal process of the
court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property
itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of
judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under
the law, it possesses over the property; and any discussion relative to the jurisdiction of the court over the person of
the defendant is entirely apart from the case. The jurisdiction of the court over the property, considered as the
exclusive object of such action, is evidently based upon the following conditions and considerations, namely: (1) that
the property is located within the district; (2) that the purpose of the litigation is to subject the property by sale to an
obligation fixed upon it by the mortgage; and (3) that the court at a proper stage of the proceedings takes the
property into custody, if necessary, and expose it to sale for the purpose of satisfying the mortgage debt. An obvious
corollary is that no other relief can be granted in this proceeding than such as can be enforced against the property.

We may then, from what has been stated, formulated the following proposition relative to the foreclosure proceeding
against the property of a nonresident mortgagor who fails to come in and submit himself personally to the jurisdiction
of the court: (I) That the jurisdiction of the court is derived from the power which it possesses over the property; (II)
that jurisdiction over the person is not acquired and is nonessential; (III) that the relief granted by the court must be
limited to such as can be enforced against the property itself.

It is important that the bearing of these propositions be clearly apprehended, for there are many expressions in the
American reports from which it might be inferred that the court acquires personal jurisdiction over the person of the
defendant by publication and notice; but such is not the case. In truth the proposition that jurisdiction over the
person of a nonresident cannot be acquired by publication and notice was never clearly understood even in the
American courts until after the decision had been rendered by the Supreme Court of the United States in the leading
case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In the light of that decision, and of other decisions which
have subsequently been rendered in that and other courts, the proposition that jurisdiction over the person cannot
be thus acquired by publication and notice is no longer open to question; and it is now fully established that a
personal judgment upon constructive or substituted service against a nonresident who does not appear is wholly
invalid. This doctrine applies to all kinds of constructive or substituted process, including service by publication and
personal service outside of the jurisdiction in which the judgment is rendered; and the only exception seems to be
found in the case where the nonresident defendant has expressly or impliedly consented to the mode of service.
(Note to Raher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R. A. [N. S.], 312

The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the process from the tribunals of one
State cannot run into other States or countries and that due process of law requires that the defendant shall be
brought under the power of the court by service of process within the State, or by his voluntary appearance, in order
to authorize the court to pass upon the question of his personal liability. The doctrine established by the Supreme
Court of the United States on this point, being based upon the constitutional conception of due process of law, is
binding upon the courts of the Philippine Islands. Involved in this decision is the principle that in proceedings in rem
or quasi in rem against a nonresident who is not served personally within the state, and who does not appear, the
relief must be confined to the res, and the court cannot lawfully render a personal judgment against him. (Dewey vs.
Des Moines, 173 U. S., 193; 43 L. ed., 665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.)
Therefore in an action to foreclose a mortgage against a nonresident, upon whom service has been effected
exclusively by publication, no personal judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279;
Blumberg vs. Birch, 99 Cal., 416.)

It is suggested in the brief of the appellant that the judgment entered in the court below offends against the principle
just stated and that this judgment is void because the court in fact entered a personal judgment against the absent
debtor for the full amount of the indebtedness secured by the mortgage. We do not so interpret the judgment.

In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure,
to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order
requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. In the
present case the judgment which was entered contains the following words:

Because it is declared that the said defendant Engracio Palanca Tanquinyeng y Limquingco, is indebted in
the amount of P249,355.32, plus the interest, to the 'Banco Espanol-Filipino' . . . therefore said appellant is
ordered to deliver the above amount etc., etc.

This is not the language of a personal judgment. Instead it is clearly intended merely as a compliance with the
requirement that the amount due shall be ascertained and that the evidence of this it may be observed that
according to the Code of Civil Procedure a personal judgment against the debtor for the deficiency is not to be
rendered until after the property has been sold and the proceeds applied to the mortgage debt. (sec. 260).

The conclusion upon this phase of the case is that whatever may be the effect in other respects of the failure of the
clerk of the Court of First Instance to mail the proper papers to the defendant in Amoy, China, such irregularity could
in no wise impair or defeat the jurisdiction of the court, for in our opinion that jurisdiction rest upon a basis much
more secure than would be supplied by any form of notice that could be given to a resident of a foreign country.

Before leaving this branch of the case, we wish to observe that we are fully aware that many reported cases can be
cited in which it is assumed that the question of the sufficiency of publication or notice in a case of this kind is a
question affecting the jurisdiction of the court, and the court is sometimes said to acquire jurisdiction by virtue of the
publication. This phraseology was undoubtedly originally adopted by the court because of the analogy between
service by the publication and personal service of process upon the defendant; and, as has already been
suggested, prior to the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of the two
forms of service was obscure. It is accordingly not surprising that the modes of expression which had already been
molded into legal tradition before that case was decided have been brought down to the present day. But it is clear
that the legal principle here involved is not effected by the peculiar language in which the courts have expounded
their ideas.

We now proceed to a discussion of the question whether the supposed irregularity in the proceedings was of such
gravity as to amount to a denial of that "due process of law" which was secured by the Act of Congress in force in
these Islands at the time this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions
involving the application of the constitutional provisions relating to due process of law the Supreme Court of the
United States has refrained from attempting to define with precision the meaning of that expression, the reason
being that the idea expressed therein is applicable under so many diverse conditions as to make any attempt ay
precise definition hazardous and unprofitable. As applied to a judicial proceeding, however, it may be laid down with
certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) There
must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction
must be lawfully acquired over the person of the defendant or over the property which is the subject of the
proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon
lawful hearing.
Passing at once to the requisite that the defendant shall have an opportunity to be heard, we observe that in a
foreclosure case some notification of the proceedings to the nonresident owner, prescribing the time within which
appearance must be made, is everywhere recognized as essential. To answer this necessity the statutes generally
provide for publication, and usually in addition thereto, for the mailing of notice to the defendant, if his residence is
known. Though commonly called constructive, or substituted service of process in any true sense. It is merely a
means provided by law whereby the owner may be admonished that his property is the subject of judicial
proceedings and that it is incumbent upon him to take such steps as he sees fit to protect it. In speaking of notice of
this character a distinguish master of constitutional law has used the following language:

. . . if the owners are named in the proceedings, and personal notice is provided for, it is rather from
tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to
them, than from any necessity that the case shall assume that form. (Cooley on Taxation [2d. ed.], 527,
quoted in Leigh vs. Green, 193 U. S., 79, 80.)

It will be observed that this mode of notification does not involve any absolute assurance that the absent owner shall
thereby receive actual notice. The periodical containing the publication may never in fact come to his hands, and the
chances that he should discover the notice may often be very slight. Even where notice is sent by mail the
probability of his receiving it, though much increased, is dependent upon the correctness of the address to which it
is forwarded as well as upon the regularity and security of the mail service. It will be noted, furthermore, that the
provision of our law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally
and in every event, but only in the case where the defendant's residence is known. In the light of all these facts, it is
evident that actual notice to the defendant in cases of this kind is not, under the law, to be considered absolutely
necessary.

The idea upon which the law proceeds in recognizing the efficacy of a means of notification which may fall short of
actual notice is apparently this: Property is always assumed to be in the possession of its owner, in person or by
agent; and he may be safely held, under certain conditions, to be affected with knowledge that proceedings have
been instituted for its condemnation and sale.

It is the duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall
be represented when his property is called into requisition, and if he fails to do this, and fails to get notice by
the ordinary publications which have usually been required in such cases, it is his misfortune, and he must
abide the consequences. (6 R. C. L., sec. 445 [p. 450]).

It has been well said by an American court:

If property of a nonresident cannot be reached by legal process upon the constructive notice, then our
statutes were passed in vain, and are mere empty legislative declarations, without either force, or meaning;
for if the person is not within the jurisdiction of the court, no personal judgment can be rendered, and if the
judgment cannot operate upon the property, then no effective judgment at all can be rendered, so that the
result would be that the courts would be powerless to assist a citizen against a nonresident. Such a result
would be a deplorable one. (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.)

It is, of course universally recognized that the statutory provisions relative to publication or other form of notice
against a nonresident owner should be complied with; and in respect to the publication of notice in the newspaper it
may be stated that strict compliance with the requirements of the law has been held to be essential. In Guaranty
Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U. S., 137, 138), it was held that where newspaper publication
was made for 19 weeks, when the statute required 20, the publication was insufficient.

With respect to the provisions of our own statute, relative to the sending of notice by mail, the requirement is that the
judge shall direct that the notice be deposited in the mail by the clerk of the court, and it is not in terms declared that
the notice must be deposited in the mail. We consider this to be of some significance; and it seems to us that,
having due regard to the principles upon which the giving of such notice is required, the absent owner of the
mortgaged property must, so far as the due process of law is concerned, take the risk incident to the possible failure
of the clerk to perform his duty, somewhat as he takes the risk that the mail clerk or the mail carrier might possibly
lose or destroy the parcel or envelope containing the notice before it should reach its destination and be delivered to
him. This idea seems to be strengthened by the consideration that placing upon the clerk the duty of sending notice
by mail, the performance of that act is put effectually beyond the control of the plaintiff in the litigation. At any rate it
is obvious that so much of section 399 of the Code of Civil Procedure as relates to the sending of notice by mail was
complied with when the court made the order. The question as to what may be the consequences of the failure of
the record to show the proof of compliance with that requirement will be discussed by us further on.

The observations which have just been made lead to the conclusion that the failure of the clerk to mail the notice, if
in fact he did so fail in his duty, is not such an irregularity, as amounts to a denial of due process of law; and hence
in our opinion that irregularity, if proved, would not avoid the judgment in this case. Notice was given by publication
in a newspaper and this is the only form of notice which the law unconditionally requires. This in our opinion is all
that was absolutely necessary to sustain the proceedings.
It will be observed that in considering the effect of this irregularity, it makes a difference whether it be viewed as a
question involving jurisdiction or as a question involving due process of law. In the matter of jurisdiction there can be
no distinction between the much and the little. The court either has jurisdiction or it has not; and if the requirement
as to the mailing of notice should be considered as a step antecedent to the acquiring of jurisdiction, there could be
no escape from the conclusion that the failure to take that step was fatal to the validity of the judgment. In the
application of the idea of due process of law, on the other hand, it is clearly unnecessary to be so rigorous. The
jurisdiction being once established, all that due process of law thereafter requires is an opportunity for the defendant
to be heard; and as publication was duly made in the newspaper, it would seem highly unreasonable to hold that
failure to mail the notice was fatal. We think that in applying the requirement of due process of law, it is permissible
to reflect upon the purposes of the provision which is supposed to have been violated and the principle underlying
the exercise of judicial power in these proceedings. Judge in the light of these conceptions, we think that the
provision of Act of Congress declaring that no person shall be deprived of his property without due process of law
has not been infringed.

In the progress of this discussion we have stated the two conclusions; (1) that the failure of the clerk to send the
notice to the defendant by mail did not destroy the jurisdiction of the court and (2) that such irregularity did not
infringe the requirement of due process of law. As a consequence of these conclusions the irregularity in question is
in some measure shorn of its potency. It is still necessary, however, to consider its effect considered as a simple
irregularity of procedure; and it would be idle to pretend that even in this aspect the irregularity is not grave enough.
From this point of view, however, it is obvious that any motion to vacate the judgment on the ground of the
irregularity in question must fail unless it shows that the defendant was prejudiced by that irregularity. The least,
therefore, that can be required of the proponent of such a motion is to show that he had a good defense against the
action to foreclose the mortgage. Nothing of the kind is, however, shown either in the motion or in the affidavit which
accompanies the motion.

An application to open or vacate a judgment because of an irregularity or defect in the proceedings is usually
required to be supported by an affidavit showing the grounds on which the relief is sought, and in addition to this
showing also a meritorious defense to the action. It is held that a general statement that a party has a good defense
to the action is insufficient. The necessary facts must be averred. Of course if a judgment is void upon its face a
showing of the existence of a meritorious defense is not necessary. (10 R. C. L., 718.)

The lapse of time is also a circumstance deeply affecting this aspect of the case. In this connection we quote the
following passage from the encyclopedic treatise now in course of publication:

Where, however, the judgment is not void on its face, and may therefore be enforced if permitted to stand on
the record, courts in many instances refuse to exercise their quasi equitable powers to vacate a judgement
after the lapse of the term ay which it was entered, except in clear cases, to promote the ends of justice, and
where it appears that the party making the application is himself without fault and has acted in good faith
and with ordinary diligence. Laches on the part of the applicant, if unexplained, is deemed sufficient ground
for refusing the relief to which he might otherwise be entitled. Something is due to the finality of judgments,
and acquiescence or unnecessary delay is fatal to motions of this character, since courts are always
reluctant to interfere with judgments, and especially where they have been executed or satisfied. The
moving party has the burden of showing diligence, and unless it is shown affirmatively the court will not
ordinarily exercise its discretion in his favor. (15 R. C. L., 694, 695.)

It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y Limquingco, died January 29, 1910.
The mortgage under which the property was sold was executed far back in 1906; and the proceedings in the
foreclosure were closed by the order of court confirming the sale dated August 7, 1908. It passes the rational
bounds of human credulity to suppose that a man who had placed a mortgage upon property worth nearly P300,000
and had then gone away from the scene of his life activities to end his days in the city of Amoy, China, should have
long remained in ignorance of the fact that the mortgage had been foreclosed and the property sold, even
supposing that he had no knowledge of those proceedings while they were being conducted. It is more in keeping
with the ordinary course of things that he should have acquired information as to what was transpiring in his affairs
at Manila; and upon the basis of this rational assumption we are authorized, in the absence of proof to the contrary,
to presume that he did have, or soon acquired, information as to the sale of his property.

The Code of Civil Procedure, indeed, expressly declares that there is a presumption that things have happened
according to the ordinary habits of life (sec. 334 [26]); and we cannot conceive of a situation more appropriate than
this for applying the presumption thus defined by the lawgiver. In support of this presumption, as applied to the
present case, it is permissible to consider the probability that the defendant may have received actual notice of
these proceedings from the unofficial notice addressed to him in Manila which was mailed by an employee of the
bank's attorneys. Adopting almost the exact words used by the Supreme Court of the United States in Grannis vs.
Ordeans (234 U. S., 385; 58 L. ed., 1363), we may say that in view of the well-known skill of postal officials and
employees in making proper delivery of letters defectively addressed, we think the presumption is clear and strong
that this notice reached the defendant, there being no proof that it was ever returned by the postal officials as
undelivered. And if it was delivered in Manila, instead of being forwarded to Amoy, China, there is a probability that
the recipient was a person sufficiently interested in his affairs to send it or communicate its contents to him.

Of course if the jurisdiction of the court or the sufficiency of the process of law depended upon the mailing of the
notice by the clerk, the reflections in which we are now indulging would be idle and frivolous; but the considerations
mentioned are introduced in order to show the propriety of applying to this situation the legal presumption to which
allusion has been made. Upon that presumption, supported by the circumstances of this case, ,we do not hesitate to
found the conclusion that the defendant voluntarily abandoned all thought of saving his property from the obligation
which he had placed upon it; that knowledge of the proceedings should be imputed to him; and that he acquiesced
in the consequences of those proceedings after they had been accomplished. Under these circumstances it is clear
that the merit of this motion is, as we have already stated, adversely affected in a high degree by the delay in asking
for relief. Nor is it an adequate reply to say that the proponent of this motion is an administrator who only qualified a
few months before this motion was made. No disability on the part of the defendant himself existed from the time
when the foreclosure was effected until his death; and we believe that the delay in the appointment of the
administrator and institution of this action is a circumstance which is imputable to the parties in interest whoever
they may have been. Of course if the minor heirs had instituted an action in their own right to recover the property, it
would have been different.

It is, however, argued that the defendant has suffered prejudice by reason of the fact that the bank became the
purchaser of the property at the foreclosure sale for a price greatly below that which had been agreed upon in the
mortgage as the upset price of the property. In this connection, it appears that in article nine of the mortgage which
was the subject of this foreclosure, as amended by the notarial document of July 19, 1906, the parties to this
mortgage made a stipulation to the effect that the value therein placed upon the mortgaged properties should serve
as a basis of sale in case the debt should remain unpaid and the bank should proceed to a foreclosure. The upset
price stated in that stipulation for all the parcels involved in this foreclosure was P286,000. It is said in behalf of the
appellant that when the bank bought in the property for the sum of P110,200 it violated that stipulation.

It has been held by this court that a clause in a mortgage providing for a tipo, or upset price, does not prevent a
foreclosure, nor affect the validity of a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy
Piaco, 11 Phil. Rep., 402; Banco-Español Filipino vs. Donaldson, Sim and Co., 5 Phil. Rep., 418.) In both the cases
here cited the property was purchased at the foreclosure sale, not by the creditor or mortgagee, but by a third party.
Whether the same rule should be applied in a case where the mortgagee himself becomes the purchaser has
apparently not been decided by this court in any reported decision, and this question need not here be considered,
since it is evident that if any liability was incurred by the bank by purchasing for a price below that fixed in the
stipulation, its liability was a personal liability derived from the contract of mortgage; and as we have already
demonstrated such a liability could not be the subject of adjudication in an action where the court had no jurisdiction
over the person of the defendant. If the plaintiff bank became liable to account for the difference between the upset
price and the price at which in bought in the property, that liability remains unaffected by the disposition which the
court made of this case; and the fact that the bank may have violated such an obligation can in no wise affect the
validity of the judgment entered in the Court of First Instance.

In connection with the entire failure of the motion to show either a meritorious defense to the action or that the
defendant had suffered any prejudice of which the law can take notice, we may be permitted to add that in our
opinion a motion of this kind, which proposes to unsettle judicial proceedings long ago closed, can not be
considered with favor, unless based upon grounds which appeal to the conscience of the court. Public policy
requires that judicial proceedings be upheld. The maximum here applicable is non quieta movere. As was once said
by Judge Brewer, afterwards a member of the Supreme Court of the United States:

Public policy requires that judicial proceedings be upheld, and that titles obtained in those proceedings be
safe from the ruthless hand of collateral attack. If technical defects are adjudged potent to destroy such
titles, a judicial sale will never realize that value of the property, for no prudent man will risk his money in
bidding for and buying that title which he has reason to fear may years thereafter be swept away through
some occult and not readily discoverable defect. (Martin vs. Pond, 30 Fed., 15.)

In the case where that language was used an attempt was made to annul certain foreclosure proceedings on the
ground that the affidavit upon which the order of publication was based erroneously stated that the State of Kansas,
when he was in fact residing in another State. It was held that this mistake did not affect the validity of the
proceedings.

In the preceding discussion we have assumed that the clerk failed to send the notice by post as required by the
order of the court. We now proceed to consider whether this is a proper assumption; and the proposition which we
propose to establish is that there is a legal presumption that the clerk performed his duty as the ministerial officer of
the court, which presumption is not overcome by any other facts appearing in the cause.

In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is a presumption "that official
duty has been regularly performed;" and in subsection 18 it is declared that there is a presumption "that the ordinary
course of business has been followed." These presumptions are of course in no sense novelties, as they express
ideas which have always been recognized. Omnia presumuntur rite et solemniter esse acta donec probetur in
contrarium. There is therefore clearly a legal presumption that the clerk performed his duty about mailing this notice;
and we think that strong considerations of policy require that this presumption should be allowed to operate with full
force under the circumstances of this case. A party to an action has no control over the clerk of the court; and has
no right to meddle unduly with the business of the clerk in the performance of his duties. Having no control over this
officer, the litigant must depend upon the court to see that the duties imposed on the clerk are performed.
Other considerations no less potent contribute to strengthen the conclusion just stated. There is no principle of law
better settled than that after jurisdiction has once been required, every act of a court of general jurisdiction shall be
presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages
of the proceedings from their initiation to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S.,
449); and if the record is silent with respect to any fact which must have been established before the court could
have rightly acted, it will be presumed that such fact was properly brought to its knowledge. (The Lessee of Grignon
vs. Astor, 2 How., 319; 11 L. ed., 283.)

In making the order of sale [of the real state of a decedent] the court are presumed to have adjudged every
question necessary to justify such order or decree, viz: The death of the owners; that the petitioners were his
administrators; that the personal estate was insufficient to pay the debts of the deceased; that the private
acts of Assembly, as to the manner of sale, were within the constitutional power of the Legislature, and that
all the provisions of the law as to notices which are directory to the administrators have been complied
with. . . . The court is not bound to enter upon the record the evidence on which any fact was decided.
(Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all this apply after long lapse of time.

Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255) contains an instructive discussion in a case
analogous to that which is now before us. It there appeared that in order to foreclose a mortgage in the State of
Kentucky against a nonresident debtor it was necessary that publication should be made in a newspaper for a
specified period of time, also be posted at the front door of the court house and be published on some Sunday,
immediately after divine service, in such church as the court should direct. In a certain action judgment had been
entered against a nonresident, after publication in pursuance of these provisions. Many years later the validity of the
proceedings was called in question in another action. It was proved from the files of an ancient periodical that
publication had been made in its columns as required by law; but no proof was offered to show the publication of the
order at the church, or the posting of it at the front door of the court-house. It was insisted by one of the parties that
the judgment of the court was void for lack of jurisdiction. But the Supreme Court of the United States said:

The court which made the decree . . . was a court of general jurisdiction. Therefore every presumption not
inconsistent with the record is to be indulged in favor of its jurisdiction. . . . It is to be presumed that the court
before making its decree took care of to see that its order for constructive service, on which its right to make
the decree depended, had been obeyed.

It is true that in this case the former judgment was the subject of collateral , or indirect attack, while in the case at
bar the motion to vacate the judgment is direct proceeding for relief against it. The same general presumption,
however, is indulged in favor of the judgment of a court of general jurisdiction, whether it is the subject of direct or
indirect attack the only difference being that in case of indirect attack the judgment is conclusively presumed to be
valid unless the record affirmatively shows it to be void, while in case of direct attack the presumption in favor of its
validity may in certain cases be overcome by proof extrinsic to the record.

The presumption that the clerk performed his duty and that the court made its decree with the knowledge that the
requirements of law had been complied with appear to be amply sufficient to support the conclusion that the notice
was sent by the clerk as required by the order. It is true that there ought to be found among the papers on file in this
cause an affidavit, as required by section 400 of the Code of Civil Procedure, showing that the order was in fact so
sent by the clerk; and no such affidavit appears. The record is therefore silent where it ought to speak. But the very
purpose of the law in recognizing these presumptions is to enable the court to sustain a prior judgment in the face of
such an omission. If we were to hold that the judgment in this case is void because the proper affidavit is not present
in the file of papers which we call the record, the result would be that in the future every title in the Islands resting
upon a judgment like that now before us would depend, for its continued security, upon the presence of such
affidavit among the papers and would be liable at any moment to be destroyed by the disappearance of that piece of
paper. We think that no court, with a proper regard for the security of judicial proceedings and for the interests which
have by law been confided to the courts, would incline to favor such a conclusion. In our opinion the proper course
in a case of this kind is to hold that the legal presumption that the clerk performed his duty still maintains
notwithstanding the absence from the record of the proper proof of that fact.

In this connection it is important to bear in mind that under the practice prevailing in the Philippine Islands the word
"record" is used in a loose and broad sense, as indicating the collective mass of papers which contain the history of
all the successive steps taken in a case and which are finally deposited in the archives of the clerk's office as a
memorial of the litigation. It is a matter of general information that no judgment roll, or book of final record, is
commonly kept in our courts for the purpose of recording the pleadings and principal proceedings in actions which
have been terminated; and in particular, no such record is kept in the Court of First Instance of the city of Manila.
There is, indeed, a section of the Code of Civil Procedure which directs that such a book of final record shall be
kept; but this provision has, as a matter of common knowledge, been generally ignored. The result is that in the
present case we do not have the assistance of the recitals of such a record to enable us to pass upon the validity of
this judgment and as already stated the question must be determined by examining the papers contained in the
entire file.

But it is insisted by counsel for this motion that the affidavit of Bernardo Chan y Garcia showing that upon April 4,
1908, he sent a notification through the mail addressed to the defendant at Manila, Philippine Islands, should be
accepted as affirmative proof that the clerk of the court failed in his duty and that, instead of himself sending the
requisite notice through the mail, he relied upon Bernardo to send it for him. We do not think that this is by any
means a necessary inference. Of course if it had affirmatively appeared that the clerk himself had attempted to
comply with this order and had directed the notification to Manila when he should have directed it to Amoy, this
would be conclusive that he had failed to comply with the exact terms of the order; but such is not this case. That
the clerk of the attorneys for the plaintiff erroneously sent a notification to the defendant at a mistaken address
affords in our opinion very slight basis for supposing that the clerk may not have sent notice to the right address.

There is undoubtedly good authority to support the position that when the record states the evidence or makes an
averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence
respecting the fact, or that the fact was otherwise than stated. If, to give an illustration, it appears from the return of
the officer that the summons was served at a particular place or in a particular manner, it will not be presumed that
service was also made at another place or in a different manner; or if it appears that service was made upon a
person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the
defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U. S., 444, 449). While we believe
that these propositions are entirely correct as applied to the case where the person making the return is the officer
who is by law required to make the return, we do not think that it is properly applicable where, as in the present
case, the affidavit was made by a person who, so far as the provisions of law are concerned, was a mere
intermeddler.

The last question of importance which we propose to consider is whether a motion in the cause is admissible as a
proceeding to obtain relief in such a case as this. If the motion prevails the judgment of July 2, 1908, and all
subsequent proceedings will be set aside, and the litigation will be renewed, proceeding again from the date
mentioned as if the progress of the action had not been interrupted. The proponent of the motion does not ask the
favor of being permitted to interpose a defense. His purpose is merely to annul the effective judgment of the court,
to the end that the litigation may again resume its regular course.

There is only one section of the Code of Civil Procedure which expressly recognizes the authority of a Court of First
Instance to set aside a final judgment and permit a renewal of the litigation in the same cause. This is as follows:

SEC. 113. Upon such terms as may be just the court may relieve a party or legal representative from the
judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or
excusable neglect; Provided, That application thereof be made within a reasonable time, but in no case
exceeding six months after such judgment, order, or proceeding was taken.

An additional remedy by petition to the Supreme Court is supplied by section 513 of the same Code. The first
paragraph of this section, in so far as pertinent to this discussion, provides as follows:

When a judgment is rendered by a Court of First Instance upon default, and a party thereto is unjustly
deprived of a hearing by fraud, accident, mistake or excusable negligence, and the Court of First Instance
which rendered the judgment has finally adjourned so that no adequate remedy exists in that court, the party
so deprived of a hearing may present his petition to the Supreme Court within sixty days after he first learns
of the rendition of such judgment, and not thereafter, setting forth the facts and praying to have judgment set
aside. . . .

It is evident that the proceeding contemplated in this section is intended to supplement the remedy provided by
section 113; and we believe the conclusion irresistible that there is no other means recognized by law whereby a
defeated party can, by a proceeding in the same cause, procure a judgment to be set aside, with a view to the
renewal of the litigation.

The Code of Civil Procedure purports to be a complete system of practice in civil causes, and it contains provisions
describing with much fullness the various steps to be taken in the conduct of such proceedings. To this end it
defines with precision the method of beginning, conducting, and concluding the civil action of whatever species; and
by section 795 of the same Code it is declared that the procedure in all civil action shall be in accordance with the
provisions of this Code. We are therefore of the opinion that the remedies prescribed in sections 113 and 513 are
exclusive of all others, so far as relates to the opening and continuation of a litigation which has been once
concluded.

The motion in the present case does not conform to the requirements of either of these provisions; and the
consequence is that in our opinion the action of the Court of First Instance in dismissing the motion was proper.

If the question were admittedly one relating merely to an irregularity of procedure, we cannot suppose that this
proceeding would have taken the form of a motion in the cause, since it is clear that, if based on such an error, the
came to late for relief in the Court of First Instance. But as we have already seen, the motion attacks the judgment of
the court as void for want of jurisdiction over the defendant. The idea underlying the motion therefore is that
inasmuch as the judgment is a nullity it can be attacked in any way and at any time. If the judgment were in fact void
upon its face, that is, if it were shown to be a nullity by virtue of its own recitals, there might possibly be something in
this. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.
But the judgment in question is not void in any such sense. It is entirely regular in form, and the alleged defect is
one which is not apparent upon its face. It follows that even if the judgment could be shown to be void for want of
jurisdiction, or for lack of due process of law, the party aggrieved thereby is bound to resort to some appropriate
proceeding to obtain relief. Under accepted principles of law and practice, long recognized in American courts, a
proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an
action to enjoin the judgment, if not already carried into effect; or if the property has already been disposed of he
may institute suit to recover it. In every situation of this character an appropriate remedy is at hand; and if property
has been taken without due process, the law concedes due process to recover it. We accordingly old that, assuming
the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original
proceeding and not by motion in the cause. As we have already seen our Code of Civil Procedure defines the
conditions under which relief against a judgment may be productive of conclusion for this court to recognize such a
proceeding as proper under conditions different from those defined by law. Upon the point of procedure here
involved, we refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to
vacate a judgment after the lapse of the time limited by statute if the judgment is not void on its face; and in all
cases, after the lapse of the time limited by statute if the judgment is not void on its face; and all cases, after the
lapse of such time, when an attempt is made to vacate the judgment by a proceeding in court for that purpose an
action regularly brought is preferable, and should be required. It will be noted taken verbatim from the California
Code (sec. 473).

The conclusions stated in this opinion indicate that the judgment appealed from is without error, and the same is
accordingly affirmed, with costs. So ordered.

Arellano, C.J., Torres, Carson, and Avanceña, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

I dissent. It will not make me long to state my reasons. An immutable attribute — the fundamental idea — of due
process of law is that no man shall be condemned in his person or property without notice and an opportunity of
being heard in his defense. Protection of the parties demands a strict and an exact compliance with this
constitutional provision in our organic law and of the statutory provisions in amplification. Literally hundreds of
precedents could be cited in support of these axiomatic principles. Where as in the instant case the defendant
received no notice and had no opportunity to be heard, certainly we cannot say that there is due process of law.
Resultantly, "A judgment which is void upon its face, and which requires only an inspection of the judgment roll to
demonstrate its want of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power so to do
exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant." (Mills vs. Dickons, 6 Rich [S.
C.], 487.)

- Andaya v. Abadia 228 SCRA 705, 717

G.R. No. L-104033 December 27, 1993

NOE S. ANDAYA, petitioner, vs.

LISANDRO C. ABADIA, RENE R. CRUZ, VICTOR M. PUNZALAN, LYSIAS C. CABUSAO, JOSE O.
BARNUEVO, JOSE M. FORONDA, LAMBERTO TORRES, EDGAR C. GALVANTE, EMERSON C. TANGAN,
PRIMITIVO A. SOMERA, and BENJAMIN N. SANTOS, SR., respondents.

Bernardo P. Fernandez and Doroteo B. Daguna for petitioner.

M.M. Lazaro & Associates for respondents.

BELLOSILLO, J.:

Maintaining that the Regional Trial Court (RTC) and not the securities and Exchange Commission (SEC) has
jurisdiction over his complaint, petitioner argues that the court a quo should not have dismissed Civil Case No. Q-
1

91-10470 filed by him against herein respondents, who were original defendants in the court below. He asserts that
"actually, the complaint is based not so much on plaintiff's attempted removal but rather on the manner of his
removal and the consequent effects thereof." Specifically, he alleges in his petition that —
2

Before the Regional Trial Court, Branch 101, Quezon City, in an action denominated "Injunction and
Damages with Restraining Order and/or Preliminary Injunction", docketed as Civil Case No. Q-91-
10470 of said Court, petitioner NOE S. ANDAYA, as plaintiff, sued respondents LISANDRO C.
ABADIA, RENE R. CRUZ, VICTOR M. PUNZALAN, LYSIAS C. CABUSAO, JOSE O. BARNUEVO,
JOSE M. FORONDA, LAMBERTO TORRES, EDGAR C. GALVANTE, EMERSON, C. TANGAN,
PRIMITIVO A. SOMERA AND BENJAMIN N. SANTOS, SR., as defendants, alleging . . . that said
respondents, as directors of the Armed Forces and Police Savings and Loan Association, Inc.,
(AFPSLAI) . . . acting in concerts and pursuant to an illegal and nefarious scheme to oust petitioner
from his then positions as President and General Manager of the AFPSLAI, with grave abuse of
 authority and in gross and deliberate violation of the norms of human relations and of petitioner's
right to due process, illegally, maliciously and with evident bad faith, convened a meeting of the
AFPSLAI Board of Directors and illegally reorganized the management of AFPSLAI by ousting and
removing, without just and lawful cause, petitioner from his positions therein, causing petitioner
moral and exemplary damages, and praying . . . for the issuance of a temporary restraining order . . .
and . . . a writ of preliminary injunction, restraining respondents from implementing the result of the
irregularity convened and illegally conducted reorganization of the management of AFPSLAI, as well
as respondents Punzalan and Tangan from assuming and taking over from petitioner the offices of
President and General Manager of said AFPSLAI and from performing and exercising the functions
and powers thereof pending final determination of the case. 3

On 30 October 1991, the trial court granted the prayer of petition for temporary restraining order and set the hearing
on the injunctive relief.
4

On 4 November 1991, respondents filed an Urgent Motion to Dismiss on the ground that the complaint raised intra-
corporate controversies over which the Securities and Exchange Commission, and not the court a quo, has
exclusive original jurisdiction. On 5 November 1991, respondents filed an Urgent Motion to Lift Restraining Order
5

and Opposition to Preliminary Injunction. Petitioner filed a Consolidated Opposition to Urgent Motion to Dismiss
6

and Motion to Lift Restraining Order with Reply to Opposition to Preliminary Injunction and Reiteration of Motions for
Contempt (for violation of the Temporary Restraining Order), arguing that "the case is mainly based not on
petitioner's attempted removal per se but rather on the manner of his removal and the effect thereof, which was
done anti-socially, oppressively, in gross violation of the norms of human relations and without giving petitioner his
due . . ."
7

On 12 November 1991, before the trial court could rule on the motion to dismiss, petitioner filed an amended
complaint impleading as additional defendants then Central bank Governor Jose L. Cuisia, Jr., Central Bank SRDC
Managing Director Ricardo P. Lirio and Central Bank SES Acting Director Candon B. Guerrero. On 13 November
8

1991, respondents filed an Omnibus Motion contending, inter alia, that the filing of an amended complaint seeking
to confer jurisdiction on the court was improper and should not be allowed. 9

On 14 November 1991, Judge Pedro T. Santiago of the court a quo issued an order dismissing the case for lack of
jurisdiction insofar as herein respondents were concerned and denied petitioner's motions to declare respondents in
contempt of court. While the order mentioned the amended complaint, it made no express disposition thereon. It
simply ruled that —

Evidently, the prayers for damages and injunction are predicated on corporate matters. It should be
stressed at this point that the subject causes of action stated in the complaint, from the alleged
illegal notices of meetings to the election and tenure of officers, are matters covered by the AFPSLAI
By-Laws. Specifically, on the allegation that the plaintiff was ousted and removed in a votation by the
AFPSLAI Board of Directors, whether rightly or without just cause, this is covered by the AFPSLAI
By-Laws, Sec. 3, that: "All executive officers shall hold office at the pleasure of the Board, and all
other officers, agents and employees shall hold office for such time as it is provided for in their
contract of employment and if none is provided, at the pleasure of the Board (emphasis supplied).

The specific law, P.D. No. 902-A, defines and vests jurisdiction over corporate matter in the
Securities and Exchange Commission in no uncertain terms, Section 3, to be "absolute jurisdiction,
supervision and control over all corporations." In the case at bar, AFPSLAI is a corporation and the
alleged causes of action in the complaint are clearly corporate matters.

The damages sought as a consequence of the alleged corporate wrongs committed by the
defendants becomes merely incidental. The other relief for injunction prayed for is also within the
jurisdictional power of the SEC (Sec. 6, P.D. 902-A).

In resume therefore, the very allegations in the complaint being indubitably corporate matters militate
against the jurisdiction of this Court over the instant case. 10

On 18 November 1991, petitioner moved to reconsider the 14 November 1991 order arguing, among others, that
"since the case under Amended Complaints impleads parties-defendant not in any way connected with the
AFPSLAI, any apparent corporate element in the case is swept away." Respondents filed an opposition thereto,
11

and on 10 February 1992, the court a quo denied the motion for reconsideration as well as the motion to dismiss the
amended complaint earlier filed by defendants Cuisia, et al., holding that —

. . . the fact remains that the substance and essence of the complaint against the original 11
defendants in both the first and the amended complaint are the same — that the said defendants are
being held civilly liable for their corporate acts in the AFPSLAI.

Consequently, the Court finds no reason to change its lack of resolution dismissing the instant
complaint FOR LACK OF JURISDICTION insofar as the original defendants are concerned, namely:
Lisandro C. Abadia, Rene R. Cruz, Victor M. Punzalan, Lysias C. Cabusao, Jose O. Barnuevo, Jose
 M. Foronda, Lamberto Torres, Edgar C. Galvante, Emerson C. Tangan, Primitivo A. Somera,
Benjamin N. Santos, Sr.

. . . . Thus, where the defendants Abadia, et al., were dismissed from the case, it does not
necessarily follow that the whole case, specifically the amended complaint, is also dismissed as the
allegations therein insofar as the defendants Cuisia, et al. . . . . are concerned, are within the context
of the jurisdiction of this Court. The matter does not only present a case of splitting the causes of
action, which is frowned upon, but a matter of jurisdiction. This Court has no jurisdiction on corporate
matters as in the case of defendants Abadia, et al. . . . . but no so, however, in the case of
defendants Cuisia, et al . . . . where their alleged acts stated in the amended complaint fall within the
jurisdiction of the Court.
12

Petitioner now comes to us on appeal praying for the reversal of the orders of the court dated 14 November 1991
and 10 February 1992 insofar as the case against herein respondents is concerned.

The allegations against herein respondents in the amended complaint unquestionably reveal intra-corporate
controversies cleverly concealed, although unsuccessfully, by use of civil law terms and phrases. The amended
complaint impleads herein respondents who, in their capacity as directors of AFPSLAI, allegedly convened an illegal
meeting and voted for the reorganization of management resulting in petitioner's ouster as corporate officer. While it
may be said that the same corporate acts also give rise to civil liability for damages, it does not follow that the case
is necessarily taken out of the jurisdiction of the SEC as it may award damages which can be considered
consequential in the exercise of its adjudicative powers. Besides, incidental issues that properly fall within the
authority of a tribunal may also be considered by it to avoid multiplicity of actions. Consequently, in intra-corporate
matters such as those affecting the corporation, its directors, trustees, officers, shareholders, the issue of
consequential damages may just as well be resolved and adjudicated by the SEC.

Moreover, mere allegations of violation of the provisions of the Civil Code on human relations do not necessarily call
for the application of the provisions of the Civil Code in place of AFPSLAI By-Laws. In De Tavera v. Philippine
Tuberculosis Society, Inc., ruled —
13

Petitioner cannot likewise seek relief from the general provisions on the New Civil Code on Human
Relations nor from the fundamental principles of the New Constitution on preservation of human
dignity. While these provisions present some basic principles that are to be observed for the rightful
relationship between human beings and the stability of social order, these are merely guides for
human conduct in the absence of specific legal provisions and definite contractual stipulations. In the
case at bar, the Code of By-Laws of the Society contains a specific provision governing the term of
office of petitioner. The same necessarily limits her right under the new Civil Code and the New
Constitution upon acceptance of the appointment.

The determination of the rights of petitioner arising from the alleged illegal convening of the meeting of AFPSLAI
Board of Directors and his subsequent ouster from corporate offices as a result of the voting for the reorganization
of management are obviously intra-corporate controversies subject to the jurisdiction of SEC as provided in P.D. No.
902-A which states:

Sec. 5. In addition to the regulatory and adjudicative functions of the Securities and Exchange
Commission over corporations . . . it shall have original and exclusive jurisdiction to hear and decide
cases involving . . . . (b) Controversies arising out of intra-corporate . . . relations . . . . (c)
Controversies in the election or appointment of directors, trustees, officers or managers of such
corporations . . . .

The same may also be said of petitioner's prayer for damages, considering that his right thereto either depends on,
or is inextricably linked with, the resolution of the corporate controversies. For instance, the prayer for moral
damages is grounded on "defendants' gross and evident bad faith, insidious machinations and conspirational acts,
false and derogatory misinterpretations and imputations against plaintiff and other malevolent and illegal acts
calculated to realize and accomplish the threatened illegal removal of plaintiff from his positions
aforesaid . . . .;" while the prayer for exemplary damages is dependent on alleged respondents' "concerted illegal
14

effort to maliciously set him up for, and fraudulently consummate, his illegal ouster from his positions in the
AFPSLAI . . . ."15

Even the supposed allegations of violation of the provisions of the Civil Code on human relations, as in par. 7 of the
Complaint which states that "certain parties, including defendant SANTOS, "masterminded a plot to degrade plaintiff
and to denigrate his accomplishments in the AFPSLAI by spreading false and derogatory rumors against plaintiff,"
are all treated in the complaint as mere components of the general scheme allegedly perpetrated by respondents as
directors to oust him from his corporate offices, and not as causes of action independent of intra-corporate matters.
Moreover, the injunction prayed for in the complaint is within the jurisdiction of SEC pursuant to Sec. 6, par. (a), of
P.D. 902-A which states: "(i)n order to effectively exercise such jurisdiction, the Commission shall possess the
following powers . . . . (t)o issue preliminary or permanent injunction, whether prohibitory or mandatory, in all cases
in which it has jurisdiction . . . ."
In his Supplemental Appeal by Certiorari With Prayer for Issuance of Preliminary Injunction or Restraining
Order, petitioner refers to allegations in pars. 7, 11, 15 and 16 of the complaint which supposedly disclose that
16 17

the case is within the jurisdiction of the court a quo. Petitioner wilily, but unavailingly, tries to mangle his complaint,
dismember its parts, and present to us only those paragraphs which he considers are beyond the jurisdiction of
SEC.

We are not distracted by this artful maneuver. In giving utmost importance to these paragraphs and in treating them
as his strongest arguments to support his position, petitioner unwittingly exposes his achilles' heel. These
paragraphs themselves show that the allegations of violations of the rules on human relations also fall within the
jurisdiction of SEC because they are treated merely as ingredients of "malevolent and illegal acts calculated to
realize and accomplish the threatened illegal removal of plaintiff from his (corporate) positions."

In sum, what petitioner filed against respondents before the court a quo was an intra-corporate case under the guise
of an action for injunction and damages.

Petitioner also seeks reversal of the assailed orders on the alleged procedural infirmity that "despite the filing of an
Amended Complaint before a responsive pleading has been filed, which superseded the original complaint and
rendered respondents' Motion to Dismiss the original complaint functus oficio, the Court a quo without first admitting
the Amended Complaint and merely upon respondents' Omnibus Motion . . . dismissed the case as against
respondents."

First of all, under Sec. 2, Rule 10, Rules of Court, the filing of an amended complaint before answer is an
undisputed right of plaintiff, hence, there is no need for the court to allow its admission. Quite obviously, any
18

statement admitting such amended complaint may reasonably be considered a superfluity. Considered in this light,
the court a quo could not be faulted for not making any statement admitting the amended complaint.

It appears however that the Omnibus Motion (seeking dismissal of the Amended Complaint) was already filed when
the court a quo rendered the order of 14 November 1991 resolving, not the Omnibus Motion, but the Urgent Motion
to Dismiss (seeking dismissal of the original Complaint). Ordinarily, the filing of the Omnibus Motion should render
the Urgent Motion to Dismiss superseded. Petitioner thus posits that the court a quo was precluded from acting not
19

only on the Urgent Motion to Dismiss because it was deemed superseded, but also on the Omnibus Motion because
no hearing was had thereon thus leaving the assailed orders without basis to lean on. Where in this case, however,
the Omnibus Motion already comprehended the lone issue raised in the Urgent Motion to Dismiss (i.e., the court has
no jurisdiction over intra-corporate matters) and upon which ground the court a quo dismissed the case against
respondents, the previous hearing on the Urgent Motion to Dismiss may cure the defect of absence of hearing on
20

the Omnibus Motion but only insofar as said issue was concerned. What is important is that petitioner was heard on
that issue, hence, due process was observed. Moreover, the Omnibus Motion made an express statement adopting
the arguments in the Urgent Motion to Dismiss. While this practice of adopting another pleading is not necessarily
encouraged, the peculiar circumstances of this case demand the application of liberality. Besides, even if the
21

Urgent Motion to Dismiss may have been deemed superseded, the Court is not precluded from considering the
same which still remains in the record. The withdrawal of motions or pleadings from the record cannot easily be
implied. 22

The foregoing notwithstanding, remedial rights and privileges under the Rules of Court are utterly useless in a forum
that has no jurisdiction over the case. It should be noted that the court a quo dismissed the case against
respondents on the ground that it has no jurisdiction over the subject matter thereof which mainly involves intra-
corporate controversies.

Jurisdiction over subject matter is essential in the sense that erroneous assumption thereof may put at naught
whatever proceedings the court might have had. Hence, even on appeal, and even if the parties do not raise the
issue of jurisdiction, the reviewing court is not precluded from ruling that it has no jurisdiction over the case. It is
elementary that jurisdiction is vested by law and cannot be conferred or waived by the parties or even by the judge.
It is also irrefutable that a court may at any stage of the proceedings dismiss the case for want of jurisdiction. For
this matter, the ground of lack of jurisdiction in dismissing a case is not waivable. Hence, the last sentence of Sec. 2,
Rule 9, Rules of Court, expressly states: "Whenever it appears that the court has no jurisdiction over the subject
matter, it shall dismiss the action."

We note that Sec. 2, Rule 9 uses the word "shall," leaving the court no choice under the given situation but to
dismiss the case. The same Rule also uses the phrase "whenever it appears," which means at anytime after the
complaint or amended complaint is filed, because the lack of jurisdiction may be apparent from the allegations
therein. Hence, from the foregoing, even if no answer or motion to dismiss is filed the court may dismiss the case for
want of jurisdiction. In this sense, dismissal for lack jurisdiction may be ordered by the court motu propio. Applying
this notion to the case at bar, with the dismissal of the case against respondents for lack of jurisdiction, it then
becomes inconsequential whether the court acted on the Urgent Motion to Dismiss or on the Omnibus Motion
without the requisite notice as provided in Secs. 4 and 6 of Rule 15 of the Rules of Court. The determination of lack
of jurisdiction over respondents being apparent from the face of the amended complaint, the defect of want of prior
notice and hearing of the Omnibus Motion could not by itself confer jurisdiction upon the court a quo.
WHEREFORE, finding no reversible error committed by the court a quo, the instant petition is DISMISSED and the
assailed orders of 14 November 1991 and 10 February 1992 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Quiason, Puno and Vitug, JJ.,
concur.

Melo, J. took no part.

- PERKINS, vs. DIZON G.R. No. 46631 November 16, 1939

G.R. No. 46631 November 16, 1939

IDONAH SLADE PERKINS, petitioner, vs.

ARSENIO P. DIZON, Judge of First Instance of Manila, EUGENE ARTHUR PERKINS, and BENGUET
CONSOLIDATED MINING COMPANY, respondents.

Alva J. Hill for petitioner.

Ross, Lawrence, Selph & Carrascoso for respondent Judge and Benguet Consolidated Mining Company.
DeWitt, Perkins & Ponce Enrile for respondent Perkins.

MORAN, J.:

On July 6, 1938, respondent, Eugene Arthur Perkins, instituted an action in the Court of First Instance of Manila
against the Benguet Consolidated Mining Company for dividends amounting to P71,379.90 on 52,874 shares of
stock registered in his name, payment of which was being withheld by the company; and, for the recognition of his
right to the control and disposal of said shares, to the exclusion of all others. To the complaint, the company filed its
answer alleging, by way of defense, that the withholding of such dividends and the non-recognition of plaintiff's right
to the disposal and control of the shares were due to certain demands made with respect to said shares by the
petitioner herein, Idonah Slade Perkins, and by one George H. Engelhard. The answer prays that the adverse
claimants be made parties to the action and served with notice thereof by publication, and that thereafter all such
parties be required to interplead and settle the rights among themselves. On September 5, 1938, the trial court
ordered respondent Eugene Arthur Perkins to include in his complaint as parties defendant petitioner, Idonah Slade
Perkins, and George H. Engelhard. The complaint was accordingly amended and in addition to the relief prayed for
in the original complaint, respondent Perkins prayed that petitioner Idonah Slade Perkins and George Engelhard be
adjudged without interest in the shares of stock in question and excluded from any claim they assert thereon.
Thereafter, summons by publication were served upon the non-resident defendants, Idonah Slade Perkins and
George H. Engelhard, pursuant to the order of the trial court. On December 9, 1938, Engelhard filed his answer to
the amended complaint, and on December 10, 1938, petitioner Idonah Slade Perkins, through counsel, filed her
pleading entitled "objection to venue, motion to quash, and demurrer to jurisdiction" wherein she challenged the
jurisdiction of the lower court over her person. Petitioner's objection, motion and demurrer having been overruled as
well as her motion for reconsideration of the order of denial, she now brought the present petition for certiorari,
praying that the summons by publication issued against her be declared null and void, and that, with respect to her,
respondent Judge be permanently prohibited from taking any action on the case.

The controlling issue here involved is whether or not the Court of First Instance of Manila has acquired jurisdiction
over the person of the present petitioner as a non-resident defendant, or, notwithstanding the want of such
jurisdiction, whether or not said court may validly try the case. The parties have filed lengthy memorandums relying
on numerous authorities, but the principles governing the question are well settled in this jurisdiction.

Section 398 of our Code of Civil Procedure provides that when a non-resident defendant is sued in the Philippine
courts and it appears, by the complaint or by affidavits, that the action relates to real or personal property within the
Philippines in which said defendant has or claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding such person from any interest therein, service of summons
maybe made by publication.

We have fully explained the meaning of this provision in El Banco Español Filipino vs. Palanca, 37 Phil., 921,
wherein we laid down the following rules:

(1) In order that the court may validly try a case, it must have jurisdiction over the subject-matter and over
the persons of the parties. Jurisdiction over the subject-matter is acquired by concession of the sovereign
authority which organizes a court and determines the nature and extent of its powers in general and thus
fixes its jurisdiction with reference to actions which it may entertain and the relief it may grant. Jurisdiction
over the persons of the parties is acquired by their voluntary appearance in court and their submission to its
authority, or by the coercive power of legal process exerted over their persons.

(2) When the defendant is a non-resident and refuses to appear voluntary, the court cannot acquire
jurisdiction over his person even if the summons be served by publication, for he is beyond the reach of
 judicial process. No tribunal established by one State can extend its process beyond its territory so as to
subject to its decisions either persons or property located in another State. "There are many expressions in
the American reports from which it might be inferred that the court acquires personal jurisdiction over the
person of the defendant by publication and notice; but such is not the case. In truth, the proposition that
jurisdiction over the person of a non-resident cannot be acquired by publication and notice was never clearly
understood even in the American courts until after the decision had been rendered by the Supreme Court of
the United States in the leading case of Pennoyer v. Neff (95 U.S., 714; 24 Law. ed., 565). In the light of that
decisions which have subsequently been rendered in that and other courts, the proposition that jurisdiction
over the person cannot be thus acquired by publication and notice is no longer open to question; and it is
now fully established that a personal judgment upon constructive or substituted service against a non-
resident who does not appear is wholly invalid. This doctrine applies to all kinds of constructive or
substituted process, including service by publication and personal service outside of the jurisdiction in which
the judgment is rendered; and the only exception seems to be found in the case where the non-resident
defendant has expressly or impliedly consented to the mode of service. (Note to Raher vs. Raher, 35 L. R.
A. [N. S.], 292; see also L.R.A. 585; 35 L.R.A. [N.S.], 312.)

(3) The general rule, therefore, is that a suit against a non-resident cannot be entertained by a Philippine
court. Where, however, the action is in rem or quasi in rem in connection with property located in the
Philippines, the court acquires jurisdiction over the res, and its jurisdiction over the person of the non-
resident is non-essential. In order that the court may exercise power over the res, it is not necessary that the
court should take actual custody of the property, potential custody thereof being sufficient. There is potential
custody when, from the nature of the action brought, the power of the court over the property is impliedly
recognized by law. "An illustration of what we term potential jurisdiction over the res, is found in the
proceeding to register the title of land under our system for the registration of land. Here the court, without
taking actual physical control over the property , assumes, at the instance of some person claiming to be
owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner
against all the world."

(4) As before stated, in an action in rem or quasi in rem against a non-resident defendant, jurisdiction over
his person is non-essential, and if the law requires in such case that the summons upon the defendant be
served by publication, it is merely to satisfy the constitutional requirement of due process. If any be said, in
this connection, that "may reported cases can be cited in which it is assumed that the question of the
sufficiency of publication or notice in the case of this kind is a question affecting the jurisdiction of the court,
and the court is sometimes said to acquire jurisdiction by virtue of the publication. This phraseology was
undoubtedly originally adopted by the court because of the analogy between service by publication and
personal service of process upon the defendant; and, as has already been suggested, prior to the decision
of Pennoyer v. Neff (supra), the difference between the legal effects of the two forms of service was
obscure. It is accordingly not surprising that the modes of expression which had already been moulded into
legal tradition before that case was decided have been brought down to the present day. But it is clear that
the legal principle here involved is not affected by the peculiar languages in which the courts have
expounded their ideas." lawphi1.net

The reason for the rule that Philippine courts cannot acquire jurisdiction over the person of a non-resident, as laid
down by the Supreme Court of the United States in Pennoyer v. Neff, supra, may be found in a recognized principle
of public law to the effect that "no State can exercise direct jurisdiction and authority over persons or property
without its territory. Story, Confl. L., ch. 2; Wheat, Int. L., pt. 2, ch. 2. The several States are of equal dignity and
authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by
jurists, as an elementary principle, that the laws of one State have no operation outside of its territory, except so far
as is allowed by comity; and that no tribunal established by it can extend its process beyond that territory so as to
subject either persons or property to its decisions. "Any exertion of authority of this sort beyond this limit," says
Story, "is a mere nullity, and incapable of binding such persons or property in any other tribunals." Story, Confl. L.,
sec. 539." (Pennoyer v. Neff, 95 U.S., 714; 24 Law. ed., 565, 568-569.).

When, however, the action relates to property located in the Philippines, the Philippine courts may validly try the
case, upon the principle that a "State, through its tribunals, may subject property situated within its limits owned by
non-residents to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in
no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection
to its citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and
appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the State's
jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into the non-
resident's obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control
the disposition of the property. If the non-resident has no property in the State, there is nothing upon which the
tribunals can adjudicate." (Pennoyer v. Neff, supra.)

In the instant case, there can be no question that the action brought by Eugene Arthur Perkins in his amended
complaint against the petitioner, Idonah Slade Perkins, seeks to exclude her from any interest in a property located
in the Philippines. That property consists in certain shares of stocks of the Benguet Consolidated Mining Company,
a sociedad anonima, organized in the Philippines under the provisions of the Spanish Code of Commerce, with its
principal office in the City of Manila and which conducts its mining activities therein. The situs of the shares is in the
jurisdiction where the corporation is created, whether the certificated evidencing the ownership of those shares are
within or without that jurisdiction. (Fletcher Cyclopedia Corporations, Permanent ed. Vol. 11, p. 95). Under these
circumstances, we hold that the action thus brought is quasi in rem, for while the judgement that may be rendered
therein is not strictly a judgment in rem, "it fixes and settles the title to the property in controversy and to that extent
partakes of the nature of the judgment in rem." (50 C.J., p 503). As held by the Supreme Court of the United States
in Pennoyer v. Neff (supra);

It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its
object the disposition of the property, without reference to the title of individual claimants; but , in a large and
more general sense, the terms are applied to actions between parties, where the direct object is to reach
and dispose of property owned by them, or of some interest therein.

The action being in quasi in rem, The Court of First Instance of Manila has jurisdiction over the person of the non-
resident. In order to satisfy the constitutional requirement of due process, summons has been served upon her by
publication. There is no question as to the adequacy of publication made nor as to the mailing of the order of
publication to the petitioner's last known place of residence in the United States. But, of course, the action
being quasi in rem and notice having be made by publication, the relief that may be granted by the Philippine court
must be confined to the res, it having no jurisdiction to render a personal judgment against the non-resident. In the
amended complaint filed by Eugene Arthur Perkins, no money judgment or other relief in personam is prayed for
against the petitioner. The only relief sought therein is that she be declared to be without any interest in the shares
in controversy and that she be excluded from any claim thereto.

Petitioner contends that the proceeding instituted against her is one of interpleading and is therefore an action in
personam. Section 120 of our Code of Civil Procedure provides that whenever conflicting claims are or may be
made upon a person for or relating to personal property, or the performance of an obligation or any portion thereof,
so that he may be made subject to several actions by different persons, such person may bring an action against
the conflicting claimants, disclaiming personal interest in the controversy, and the court may order them to interplead
with one another and litigate their several claims among themselves, there upon proceed to determine their several
claims. Here, The Benguet Consolidated Mining Company, in its answer to the complaint filed by Eugene Arthur
Perkins, averred that in connection with the shares of stock in question, conflicting claims were being made upon it
by said plaintiff, Eugene Arthur Perkins, his wife Idonah Slade Perkins, and one named George H. Engelhard, and
prayed that these last two be made parties to the action and served with summons by publication, so that the three
claimants may litigate their conflicting claims and settle their rights among themselves. The court has not issued an
order compelling the conflicting claimants to interplead with one another and litigate their several claims among
themselves, but instead ordered the plaintiff to amend his complaint including the other two claimants as parties
defendant. The plaintiff did so, praying that the new defendants thus joined be excluded fro any interest in the
shares in question, and it is upon this amended complaint that the court ordered the service of the summons by
publication. It is therefore, clear that the publication of the summons was ordered not in virtue of an interpleading,
but upon the filing of the amended complaint wherein an action quasi in rem is alleged.

Had not the complaint been amended, including the herein petitioner as an additional defendant, and had the court,
upon the filing of the answer of the Benguet Consolidated Mining Company, issued an order under section 120 of
the Code of Civil Procedure, calling the conflicting claimants into court and compelling them to interplead with one
another, such order could not perhaps have validly been served by publication or otherwise, upon the non-resident
Idonah Slade Perkins, for then the proceeding would be purely one of interpleading. Such proceeding is a personal
action, for it merely seeks to call conflicting claimants into court so that they may interplead and litigate their several
claims among themselves, and no specific relief is prayed for against them, as the interpleader have appeared in
court, one of them pleads ownership of the personal property located in the Philippines and seeks to exclude a non-
resident claimant from any interest therein, is a question which we do not decide not. Suffice it to say that here the
service of the summons by publication was ordered by the lower court by virtue of an action quasi in rem against the
non-resident defendant.

Respondents contend that, as the petitioner in the lower court has pleaded over the subject-matter, she has
submitted herself to its jurisdiction. We have noticed, however, that these pleas have been made not as
independent grounds for relief, but merely as additional arguments in support of her contention that the lower court
had no jurisdiction over the person. In other words, she claimed that the lower court had no jurisdiction over her
person not only because she is a non-resident, but also because the court had no jurisdiction over the subject-
matter of the action and that the issues therein involved have already been decided by the New York court and are
being relitigated in the California court. Although this argument is obviously erroneous, as neither jurisdiction over
the subject-matter nor res adjudicata nor lis pendens has anything to do with the question of jurisdiction over her
person, we believe and so hold that the petitioner has not, by such erroneous argument, submitted herself to the
jurisdiction of the court. Voluntary appearance cannot be implied from either a mistaken or superflous reasoning but
from the nature of the relief prayed for.

For all the foregoing, petition is hereby denied, with costs against petitioner.

Avanceña, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

- BILAG v. AY-AY G.R. No. 189950 April 24, 2017

BERNADETTE S. BILAG, ERLINDA BILAGSANTILLAN, DIXON BILAG, REYNALDO B. SUELLO, HEIRS OF
LOURDES S. BILAG, HEIRS OF LETICIA BILAG-HANAOKA, and HEIRS O F NELLIE BILAG, Petitioners,
vs.
ESTELA AY-AY, ANDRES ACOP, JR., FELICITAS AP-AP, SERGIO AP-AP, JOHN NAPOLEON A. RAMIREZ,
JR., and MA. TERESA A. RAMIREZ, Respondents

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari are the Decision dated March 19, 2009 and the Resolution dated
1 2 3

September 3, 2009 of the Court of Appeals (CA) in CA-G.R. CV No. 86266, which set aside the Order dated 4

October 10, 2005 of the Regional Trial Court of Baguio City, Branch 61 (RTC Br. 61), and consequently, remanded
the case to the latter court for trial.

The Facts

The instant case stemmed from a Complaint dated August 12, 2004 for Quieting of Title with Prayer for Preliminary
5

Injunction filed by respondents Estela Ay-Ay, Andres Acop, Jr., Felicitas Ap-Ap, Sergio ApAp, John Napoleon A.
Ramirez, Jr., and Ma. Teresa A. Ramirez (respondents) against petitioners Bernadette S. Bilag, Erlinda
BilagSantillan, Dixon Bilag, Reynaldo B. Suello, Heirs of Lourdes S. Bilag, Heirs of Leticia Bilag-Hanaoka, and Heirs
of Nellie Bilag before the RTC Br. 61, docketed as Civil Case No. 5881-R. Essentially, respondents alleged that Iloc
Bilag, petitioners' predecessor-in-interest, sold to them separately various portions of a 159,496-square meter parcel
of land designated by the Bureau of Lands as Approved Plan No. 544367, Psu 189147 situated at Sitio Benin,
Baguio City (subject lands), and that they registered the corresponding Deeds of Sale with the Register of Deeds of
6

Baguio City. According to respondents, Iloc Bilag not only acknowledged full payment and guaranteed that his heirs,
successors-in-interest, and executors are to be bound by such sales, but he also caused the subject lands to be
removed from the Ancestral Land Claims. Respondents further alleged that they have been in continuous
possession of the said lands since 1976 when they were delivered to them and that they have already introduced
various improvements thereon. Despite the foregoing, petitioners refused to honor the foregoing sales by asserting
their adverse rights on the subject lands. Worse, they continued to harass respondents, and even threatened to
demolish their improvements and dispossess them thereof. Hence, they filed the instant complaint to quiet their
respective titles over the subject lands and remove the cloud cast upon their ownership as a result of petitioners'
refusal to recognize the sales. 7

For their part, petitioners filed a Motion to Dismiss dated November 4, 2004 on the grounds of lack of jurisdiction,
8

prescription/laches/estoppel, and res judicata. Anent the first ground, petitioners averred that the subject lands are
untitled, unregistered, and form part of the Baguio Townsite Reservation which were long classified as lands of the
public domain. As such, the RTC has no jurisdiction over the case as it is the Land Management Bureau (formerly
the Bureau of Lands) which is vested with the authority to determine issues of ownership over unregistered public
lands.9

As to the second ground, petitioners argued that it is only now, or more than 27 years from the execution of the
Deeds of Sale, that respondents seek to enforce said Deeds; thus, the present action is already barred by
prescription and/or laches. 10

Regarding the final ground, petitioners pointed out that on January 27, 1998, respondents had already filed a
complaint against them for injunction and damages, docketed as Civil Case No. 3934-R before the Regional Trial
Court of Baguio City, Branch 5 (RTC Br. 5), wherein they principally asserted their ownership over the subject lands.
However, RTC Br. 5 dismissed Civil Case No. 3934-R for lack of merit on the ground of respondents' failure to show
convincing proof of ownership over the same, which Order of dismissal was then affirmed by the CA on
11

appeal. Eventually, the Court issued a Resolution dated January 21, 2004 declaring the case closed and
12 13

terminated for failure to file the intended petition subject of the Motion for Extension to file the same. In view of the
foregoing, petitioners contended that due to the final and executory ruling in Civil Case No. 3934-R, the filing of Civil
Case No. 5881-R seeking to establish the ownership thereof is already barred by res judicata. 14

The RTC Br. 61 Ruling

In an Order dated October 10, 2005, the RTC Br. 61 ruled in petitioners' favor, and consequently, ordered the
15

dismissal of Civil Case No. 5881-R on the following grounds: (a) it had no authority to do so; (b) the Deeds of Sale
in respondents' favor could not as yet be considered title to the subject lands, noting the failure of respondents to
perfect their title or assert ownership and possession thereof for the past 27 years; and (c) the filing of the instant
case is barred by res judicata considering the final and executory Decision dismissing the earlier filed Civil Case No.
3934-R where respondents similarly sought to be declared the owners of the subject lands. 16

Aggrieved, respondents appealed to the CA. 17

The CA Ruling
In a Decision dated March 19, 2009, the CA set aside the dismissal of Civil Case No. 5881-R, and accordingly,
18

remanded the case to the court a quo for trial. It held that Civil Case No. 3934-R was an action for injunction
19

where respondents sought to enjoin petitioners' alleged entry into the subject lands and their introduction of
improvements thereat; whereas Civil Case No. 5881-R is an action to quiet title where respondents specifically
prayed, inter alia, for the removal of the cloud upon their ownership and possession of the subject lands. In this
light, the CA concluded that while these cases may involve the same properties, the nature of the action differs;
hence, res judicata is not a bar to the present suit. On the issue of laches, prescription or estoppel, the CA pointed
out that in view of respondents' allegation that they have been in possession of the subject lands since 1976, their
action to quiet title is imprescriptible.20

Dissatisfied, petitioners moved for reconsideration 21

which was, however, denied in a Resolution dated September
22

3, 2009; hence, this petition.

The Issue Before the Court

The petition is meritorious.

At the outset, it must be stressed that in setting aside the Order of dismissal of Civil Case No. 5881-R due to the
inapplicability of the grounds of res judicata and prescription/laches, the CA notably omitted from its discussion the
first ground relied upon by petitioners, which is lack of jurisdiction.

Jurisprudence has consistently held that "[j]urisdiction is defined as the power and authority of a court to hear, try,
and decide a case. In order for the court or an adjudicative body to have authority to dispose of the case on the
merits, it must acquire, among others, jurisdiction over the subject matter. It is axiomatic that jurisdiction over the
subject matter is the power to hear and determine the general class to which the proceedings in question belong; it
is conferred by law and not by the consent or acquiescence of any or all of the parties or by erroneous belief of the
court that it exists. Thus, when a court has no jurisdiction over the subject matter, the only power it has is to dismiss
the action." Perforce, it is important that a court or tribunal should first determine whether or not it has jurisdiction
23

over the subject matter presented before it, considering that any act that it performs without jurisdiction shall be null
and void, and without any binding legal effects. The Court's pronouncement in Tan v. Cinco, is instructive on this
24

matter, to wit:

A judgment rendered by a court without jurisdiction is null and void and may be attacked anytime. It creates no
rights and produces no effect. It remains a basic fact in law that the choice of the proper forum is crucial, as the
1âwphi1

decision of a court or tribunal without jurisdiction is a total nullity. A void judgment for want of jurisdiction is no
judgment at all. All acts performed pursuant to it and all claims emanating from it have no legal effect. 25

Now, on the issue of jurisdiction, a review of the records shows that the subject lands form part of a 159,496-square
meter parcel of land designated by the Bureau of Lands as Approved Plan No. 544367, Psu 189147 situated at Sitio
Benin, Baguio City. Notably, such parcel of land forms part of the Baguio Townsite Reservation, a portion of which,
or 146, 428 square meters, was awarded to Iloc Bilag due to the reopening of Civil Reservation Case No. 1, GLRO
Record No. 211, as evidenced by a Decision dated April 22, 1968 promulgated by the then-Court of First Instance
26

of Baguio City.

In a catena of cases, and more importantly, in Presidential Decree No. (PD) 1271, it was expressly declared that
27 28

all orders and decisions issued by the Court of First Instance of Baguio and Benguet in connection with the
proceedings for the reopening of Civil Reservation Case No. 1, GLRO Record 211, covering lands within the Baguio
Town site Reservation are null and void and without force and effect. While PD 1271 provides for a means to
validate ownership over lands forming part of the Baguio Town site Reservation, it requires, among others, that a
Certificate of Title be issued on such lands on or before July 31, 1973. In this case, records reveal that the subject
29

lands are unregistered and untitled, as petitioners' assertion to that effect was not seriously disputed by
respondents. Clearly, the award of lots 2 and 3 of the 159,496-square meter parcel of land designated by the
Bureau of Lands as Approved Plan No. 544367, Psu 189147 - which includes the subject lands - to Iloc Bilag by
virtue of the reopening of Civil Reservation Case No. 1, GLRO Record 211, is covered by the blanket nullification
provided under PD 1271, and consistently affirmed by the prevailing case law. In view of the foregoing, it is only
reasonable to conclude that the subject lands should be properly classified as lands of the public domain as well.

Therefore, since the subject lands are untitled and unregistered public lands, then petitioners correctly argued that it
is the Director of Lands who has the authority to award their ownership. Thus, the RTC Br. 61 correctly recognized
30

its lack of power or authority to hear and resolve respondents' action for quieting oftitle. In Heirs of Pocdo v.
31

Avila, the Court ruled that the trial court therein correctly dismissed an action to quiet title on the ground of lack of
32

jurisdiction for lack of authority to determine who among the parties have better right over the disputed property,
which is admittedly still part of public domain for being within the Baguio Townsite Reservation, viz.:

The DENR Decision was affirmed by the Office of the President which held that lands within the Baguio Townsite
Reservation belong to the public domain and are no longer registrable under the Land Registration Act. The
Office of the President ordered the disposition of the disputed property in accordance with the applicable rules of
procedure for the disposition of alienable public lands within the Baguio Townsite Reservation, particularly Chapter
X of Commonwealth Act No. 141 on Townsite Reservations and other applicable rules.
Having established that the disputed property is public land, the trial court was therefore correct in
dismissing the complaint to quiet title for lack of jurisdiction. The trial court had no jurisdiction to determine
who among the parties have better right over the disputed property which is admittedly still part of the
public domain. As held in Dajunos v. Tandayag:

x x x The Tarucs' action was for "quieting of title" and necessitated determination of the respective rights of the
litigants, both claimants to a free patent title, over a piece of property, admittedly public land. The law, as relied upon
by jurisprudence, lodges "the power of executive control, administration, disposition and alienation of public lands
with the Director of Lands subject, of course, to the control of the Secretary of Agriculture and Natural Resources."

In sum, the decision rendered in civil case 1218 on October 28, 1968 is a patent nullity. The court below did not
have power to determine who (the Firmalos or the Tarucs) were entitled to an award of free patent title over
that piece of property that yet belonged to the public domain. Neither did it have power to adjudge the Tarucs
as entitled to the "true equitable ownership" thereof, the latter's effect being the same: the exclusion of the Firmalos
in favor of the Tarucs.

In an action for quieting of title, the complainant is seeking for "an adjudication that a claim of title or interest in
property adverse to the claimant is invalid, to free him from the danger of hostile claim, and to remove a cloud upon
or quiet title to land where stale or unenforceable claims or demands exist." Under Articles 476 and 477 of the Civil
Code, the two indispensable requisites in an action to quiet title are: (1) that the plaintiff has a legal or equitable title
to or interest in the real property subject of the action; and (2) that there is a cloud on his title by reason of any
instrument, record, deed, claim, encumbrance or proceeding, which must be shown to be in fact invalid or
inoperative despite its prima facie appearance of validity.

In this case, petitioners, claiming to be owners of the disputed property, allege that respondents are unlawfully
claiming the disputed property by using void documents, namely the "Catulagan" and the Deed of Waiver of
Rights. However, the records reveal that petitioners do not have legal or equitable title over the disputed
property, which forms part of Lot 43, a public land within the Baguio Townsite Reservation. It is clear from
the facts of the case that petitioners' predecessors-in-interest, the heirs of Pocdo Pool, were not even
granted a Certificate of Ancestral Land Claim over Lot 43, which remains public land. Thus, the trial court
had no other recourse but to dismiss the case. (Emphases and underscoring supplied)
33

In conclusion, RTC Br. 61 has no jurisdiction over Civil Case No. 5881-R as the plaintiffs therein (herein
respondents) seek to quiet title over lands which belong to the public domain. Necessarily, Civil Case No. 5881- R
must be dismissed on this ground. It should be stressed that the court a quo's lack of subject matter jurisdiction over
the case renders it without authority and necessarily obviates the resolution of the merits of the case. To reiterate,
when a court has no jurisdiction over the subject matter, the only power it has is to dismiss the action, as any act it
performs without jurisdiction is null and void, and without any binding legal effects. In this light, the Court finds no
further need to discuss the other grounds relied upon by petitioners in this case.

WHEREFORE, the petition is GRANTED. The Decision dated March 19, 2009 and the Resolution dated September
3, 2009 of the Court of Appeals in CA-G.R. CV No. 86266 are hereby REVERSED and SET ASIDE. Accordingly,
Civil Case No. 5881-R is DISMISSED on the ground of lack of jurisdiction on the part of the Regional Trial Court of
Baguio City, Branch 61.

SO ORDERED.

ESTELA M. PERLAS-BERNABE,
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ALFREDO BENJAMIN S. CAGUIOA

Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court’s Division.
MARIA LOURDES P.A. SERENO
Chief Justice

Jurisdiction over the subject matter

- Pablo B. Malabanan V. Republic Of The Philippines, G.R. No. 201821, September 19, 2018
DECISION
BERSAMIN, J.:
The action for the reversion of land initiated by the State is not directed against the judgment of the Land Registration Court but against
the title. Hence, jurisdiction is vested in the Regional Trial Court of the province or city where the land involved is located.

The Case
The registered owner appeals the decision promulgated on May 27, 2011,[1] whereby the Court of Appeals reversed and set aside the
order issued on December 11, 1998 by the Regional Trial Court (RTC), Branch 83, in Tanauan, Batangas dismissing the action for
reversion of land and cancellation of title instituted by the Republic of the Philippines (Republic), through the Office of the Solicitor
General (OSG), docketed as Civil Case No. C-192.[2]

Antecedents
The Republic commenced Civil Case No. C-192 against Angelo B. Malabanan, Pablo B. Malabanan (petitioner herein), and
Greenthumb Realty and Development Corporation (Greenthumb), the registered owners of various parcels of land covered by
certificates of title derived from Transfer Certificate of Title (TCT) No. T-24268 of the Registry of Deeds of Batangas.

The Republic alleged that TCT No. T-24268 had emanated from Original Certificate of Title (OCT) No. 0-17421 of the Registry of Deeds
of Batangas, which was purportedly issued pursuant to Decree No. 589383 in L.R.A. Record No. 50573; that upon verification, the Land
Registration Authority could not find any copy of the judgment rendered in LRC Record No. 50573; and that the tract of land covered by
TCT No. T-24268, being within the unclassified public forest, remained part of the public domain that pertained to the State and could
not be the subject of disposition or registration.[3]

In response, the petitioner moved to dismiss Civil Case No. C-192 by arguing that the RTC had no jurisdiction over the action because
it sought the annulment of the judgment and the decree issued in LRC Record No. 50573 by the Court of First Instance the jurisdiction
over which pertained to the Court of Appeals (CA).[4]

The Republic opposed the motion to dismiss, insisting that its complaint did not ask the RTC to annul a judgment because the judgment
supposedly rendered in LRC Record No. 50573 did not exist to begin with.[5]

On December 11, 1998, the RTC granted the motion to dismiss,[6] stating as follows:

The motion is meritorious.

A similar complaint for reversion to the public domain of the same parcel of land was filed with this Court on July 14, 1997 by plaintiff
against defendants-movants. The case, docketed as Civil Case No. T-784 was dismissed on December 7, 1992 for lack of jurisdiction.

As pointed out by the movants, the nullification of Original Certificate of Title No. 0-17421 and all its derivative titles would involve the
nullification of the judgment of the Land Registration Court which decreed the issuance of the title over the property. Therefore, the
applicable provision of law is Section 9 (2) of Batas Pambansa Blg. 129 which vests upon the Court of Appeals exclusive jurisdiction
over actions for annulment of judgments of the Regional Trial Courts.

Moreover, this Court is aware, and takes judicial notice, of the fact that the parcels of land, subject of reversion had been the subject of
several cases before this court concerning the ownership and possession thereof by defendant-movants. These cases were even
elevated to the Court of Appeals and the Supreme Court which, in effect upheld the ownership of properties by defendants
Malabanans. Said decisions of this Court, the Court of Appeals and the Supreme Court should then be annulled.[7]

After the Republic filed its notice of appeal.[8] The defendants (including the petitioner) moved that the RTC deny due course to the
notice of appeal on the ground that the mode of appeal adopted was improper because the issue of jurisdiction, being a question of
law, was directly cognizable by the Supreme Court on appeal by petition for review on certiorari.[9]

On June 29, 1999, the RTC denied due course to the Republic's notice of appeal, and dismissed the appeal.[10]

The Republic assailed the order of June 29, 1999 in the CA by petition for certiorari (CA-G.R. No. SP No. 54721), alleging that the RTC
thereby gravely abused its discretion amounting to lack or excess of its jurisdiction.

The CA promulgated its ruling of February 29, 2000 to the effect that the determination of whether or not an appeal could be dismissed
on the ground that the issue involved was a pure question of law was exclusively lodged in the CA as the appellate court; and that the
RTC should have given due course to the appeal, and transmitted the original records to the CA.[11]

On May 27, 2011, the CA, resolving the appeal of the Republic on the merits, set aside the order issued by the RTC on December 11,
1998,[12] and disposed as follows:

WHEREFORE, the appeal is GRANTED. The assailed December 11, 1998 Order of the RTC is SET ASIDE and the case is
consequently REMANDED to the RTC with the directive that all defendants-appellees be required to file their respective responsive
pleading, and to thereafter proceed with the trial on the merits as well as the resolution of the case with dispatch.

No costs.

SO ORDERED.[13]

The CA explained as follows:

The Republic insists that it "cannot be precluded from availing the remedy of an action for reversion in order to revert lands of the public
domain, such as the parcel of land covered by OCT No. 0-17421 which was improperly titled in the name of private person to its
patrimony." and over which the RTC exercises exclusive original jurisdiction. It claims that the DENR found that the land covered by
TCT No. 24268 is within the unclassified public forest of Batangas per Land Classification CM No. 10, thereby making the subject
property not capable of private ownership nor of disposition, or registration.

We agree.
It is settled that jurisdiction of courts over the subject matter of the litigation is conferred by law and determined by the allegations in the
complainant.

Here, the Republic alleges that upon an investigation by the DENR, the subject property was found to be situated within
the unclassified public forest of Batangas, thereby rendering it inalienable. More so that the defendants-appellees' title over the
property emanated from an original certificate of title, whose decree of registration and upon which it was based, is not therefore null
and void.

Under Section 101 of Commonwealth Act No. 141, or the Public land Act, viz.:

"Section 101. All actions for the reversion to the Government of lands of the public domain or improvements thereon shall be instituted
by the Solicitor General or the officer acting in his stead, in the proper courts, in the name of the [Republic of the Philippines]."

Stated differently, where a parcel of land considered to be inalienable land of the public domain is found under private
ownership, the Government is allowed by law to file an original action for reversion, an action where the ultimate relief sought is
to revert the land to the government pursuant to the Regalian Doctrine, and over which action, no doubt, the RTC exercise
exclusive jurisdiction.

Besides, inasmuch as the allegations in the April 30, 1998 Motion to Dismiss raised matters which require presentation of evidence and
determination of facts, said allegations are consequently best resolved in a trial on the merits, and not in a motion to dismiss. It thus
behooved the RTC to assume jurisdiction over the Republic's action for reversion, calibrate all the evidence that both parties will
present in the trial, and determine whether Republic's pieces of evidence indeed prove its contention that the subject property is part of
the public domain.[14]

On May 4, 2012, the CA denied the petitioner's motion for reconsideration for its lack of merit.[15]

Hence, this appeal.

Issues

The petitioner insists that the CA erred: (1) in setting aside the order of the RTC for the dismissal of Civil Case No. C-192; and (2) in
directing the RTC to proceed with the trial on the merits as well as the resolution of Civil Case No. C-192 with dispatch.

The petitioner argues that the action to annul OCT No. 0-17421 and its derivative certificates of title necessarily related to the final
judgment of the Land Registration Court; and that conformably with the rulings in Estate of the Late Jesus S. Yujuico v. Republic,
[16]
Collado v. Court of Appeals,[17] and Republic v. Court of Appeals,[18] the Republic should lodge its complaint for annulment of
judgment in the CA pursuant to Rule 47 of the Rules of Court.

The Republic counters that it is not seeking hereby the annulment of the judgment from which Decree No. 589383 was derived
inasmuch as such judgment did not exist; and that the action for reversion and cancellation of title was definitely within the jurisdiction of
the RTC.[19]

Should Civil Case No. C-192 be considered an action to annul the judgment of the Land Registration Court?

Ruling of the Court

The appeal lacks merit.

The basic rule is that the jurisdiction of a court over the subject matter is determined from the allegations in the complaint,[20] the law in
force at the time the complaint is filed, and the character of the relief sought, irrespective of whether the plaintiff is entitled to all or some
of the claims averred.[21] Jurisdiction over the subject matter is not affected by the pleas or the theories set up by the defendant in the
answer or motion to dismiss;[22] otherwise, jurisdiction becomes dependent almost entirely upon the whims of the defendant.[23]

The complaint in Civil Case No. C-192 alleged that: (a) TCT No. T-24268 had emanated from OCT No. 0-17421 of the Registry of
Deeds of Batangas pursuant to Decree No. 589383, issued in L.R.C. Record No. 50573; (b) copy of the decision in L.R.C. Record No.
50573 could not be found in the files of the Land Registration Authority; (c) the land described in TCT No. T-24268 was within the
unclassified public forest of Batangas; (d) TCT No. T-24268 was subdivided into four lots that were covered by TCT No. T-24386, TCT
No. T-24387, TCT No. T-24388 and TCT No. T-24389; (d) the land covered by TCT No. T-24386 was in turn subdivided into 92 lots
registered in the name of Greenthumb Realty and Development Corporation; (e) the lands covered by TCT No. T-24387 and TCT No.
T-24388 were now subdivided into nine lots each all in the name of the Malabanans (including herein petitioner); and (f) TCT No. T-
24389 remained in the name of the Malabanans.

The complaint sought as reliefs the cancellation of OCT No. 0-17421, and the reversion to the Republic of the tract of land therein
covered on the grounds that there had been no decision of the Land Registration Court authorizing its issuance, and that the land
covered by TCT No. 24268 was within the unclassified public forest of Batangas.

We find and declare that the complaint of the Republic was not seeking the annulment of the judgment issued in L.R.C. Record No.
50573.

The factual setting in Republic v. Roman Catholic Archbishop of Manila[24] is similar to that in Civil Case No. C-192. Therein, the
Republic filed a complaint for cancellation of titles and reversion of OCT No. 588 supposedly issued pursuant to Decree No. 57486
because OCT No. 588 did not cover the lots described in Decree No. 57486. In resolving whether or not the RTC had jurisdiction over
the action for cancellation of titles and reversion, the Court observed and held:

It is axiomatic that the nature of an action and whether the tribunal has jurisdiction over such action are to be determined from the
material allegations of the complaint, the law in force at the time the complaint is filed, and the character of the relief sought irrespective
of whether the plaintiff is entitled to all or some of the claims averred. Jurisdiction is not affected by the pleas or the theories set up by
defendant in an answer to the complaint or a motion to dismiss the same.

In the present case, the material averments, as well as the character of the relief prayed for by petitioners in the complaint before the R
TC, show that their action is one for cancellation of titles and reversion, not for annulment of judgment of the RTC. The complaint
alleged that Lot Nos. 43 to 50, the parcels of land subject matter of the action, were not the subject of the CFI's judgment in the relevant
prior land registration case. Hence, petitioners pray that the certificates of title of RCAM be cancelled which will not necessitate the
annulment of said judgment. Clearly, Rule 47 of the Rules of Court on annulment of judgment finds no application in the instant case.

The RTC may properly take cognizance of reversion suits which do not call for an annulment of judgment of the RTC acting as a Land
Registration Court. Actions for cancellation of title and reversion, like the present case, belong to the class of cases that "involve the
title to, or possession of, real property, or any interest therein" and where the assessed value of the property exceeds P20,000.00, fall
under the jurisdiction of the RTC. Consequently, no grave abuse of discretion excess of jurisdiction can be attributed to the RTC in
denying RCAM's motion to dismiss.[25]

The rulings in Estate of the Late Jesus S. Yujuico v. Republic,[26] Collado v. Court of Appeals[27] and Republic v. Court of Appeals[28] the
petitioner cited and relied upon have no relevance herein. Therein, the Republic had instituted actions for the annulment of judgment,
not actions for the cancellation and reversion of title, like what happened herein. The Republic recognized therein that the land titles
subject of each action had been issued pursuant to final judgments rendered by the Land Registration Court, and that such judgments
must necessarily be first invalidated before the lands involved could revert to the public domain. In contrast, the Republic alleges herein
that no judgment had ever existed.

In a reversion suit, we should emphasize, the attack is directed not against the judgment ordering the issuance of title, but against the
title that is being sought to be cancelled either because the judgment was not validly rendered, or the title issued did not faithfully reflect
the land referred to in the judgment,[29] or because no judgment was rendered at all.

WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the decision promulgated on May 27, 2011 in CA-G.R.
CV No. 70770; and ORDERS the petitioner to pay the costs of suit.

SO ORDERED.

Leonardo-De Castro, C.J., (Chairperson), Del Castillo, Tijam, and J. Reyes, Jr.,* JJ., concur.

- Reyes vs. Diaz 73 Phil 484, 485

G.R. No. L-48754 November 26, 1941

EMILIO V. REYES, protestant-appellant, vs.

APOLONIO R. DIAZ, protestee-appellee.

MORAN, J.:

This case is certified to this Court by the Court of Appeals upon the ground that the jurisdiction of the trial court is in
issue. The supposed questions of jurisdiction are, first, whether or not there is sufficient to show that the protestant
has duly filed his certificate of candidacy, and second, whether the trial court has or has no authority to pass upon
the validity of the ballots adjudicated to the protestant which have not been challenged by the protestee in his
counter-protest.

Article VIII, section 2, No. 3, of the Constitution confers upon the Supreme Court jurisdiction over "all cases in which
the jurisdiction of any trial court is in issue." Section 138, No. 3, of the Revised Administrative Code as amended by
Commonwealth Acts Nos. 3 and 259, provides that the Supreme Court shall have appellate jurisdiction over "all
cases in which the jurisdiction of any inferior court is in issue." It has been held that the word "jurisdiction" as used in
the constitutions and in the statutes "means jurisdiction as to the subject-matter only, unless an exception arises by
reason of its employment in a broader sense." (15 C. J. 735; Johnson vs. Wells, 91 Fed. 1; U. S. vs. Lee, 84 Fed.
626; Vinal vs. Continental Constr., etc. Co., 34 Fed. 228; Starnes vs. Mutual Loan etc., Co., 102 Ga. 597; 29 SE
452.) There is in our Constitution or in the law aforecited nothing which may lend the word "jurisdiction" therein used
a broader meaning than jurisdiction over the subject matter. On the contrary, having due regard to the manifest
purpose of the law, which is to confine the appellate jurisdiction of this court to cases of vital importance involving
questions of fundamental character, such, for instance, as the question of validity of statute, treaty or ordinance, or
the legality of any tax, import or assessment which may effect the very existence of the government, or criminal
cases wherein life imprisonment or death penalty is imposed, we are of the opinion and so hold, that the issue of
jurisdiction which confers appellate powers upon this Court in a given case is not such question as is dependent
exclusively upon minor matters of fact or upon a mere construction of the pleadings, but that which has reference to
the more important question of jurisdiction of the trial court over the subject-matter as determined by law.

Jurisdiction over the subject-matter is the power to hear and determine cases of the general class to which the
proceedings in question belong (C. J. S., p. 36) and is conferred by the sovereign authority which organizes the
court and defines its powers (Banco Español Filipino vs. Palanca, 37 Phil. 921; Perkins vs. Dizon, 40 Off. Gaz. No.
7, 3d Sup. p. 216; Ng Si Chok vs. Vera, G.R. No. 45674). The question, therefore, of whether a court has jurisdiction
over the subject-matter, calls for interpretation and application of the law of jurisdiction which distributes the judicial
power among the different courts in the Philippines, and since the ruling on the matter is of far-reaching
consequences, affecting, as it may, the very life and structure of our judicial system, the law has deemed it wise to
place the power and authority to act thereon in the highest court of the land.

In the instant, case, there is no such question of jurisdiction as above described. Both parties agree that if the due
filing of the protestant's certificate of candidacy is proven, the trial court has no jurisdiction except to dismiss the
case. There is, therefore, no question between the parties as to what the jurisdiction of the trial court is according to
law in either case. The real question between them is one of fact — whether or not the protestant's certificate of
candidacy has been duly filed. And not the until this fact is proved can the question of jurisdiction be determined.

Neither is the second question one of jurisdiction within the purview of the legal provisions above quoted. Whether
certain ballots are or are not pertinent to the issue raised in the pleadings, is merely a question of relevancy of
evidence. It may be true that the court by an erroneous ruling on such question my encroach upon issues
completely foreign to those defined in the pleadings, but in such case the question of jurisdiction that may arise
would not be one of jurisdiction over the subject-matter but of jurisdiction over the issue. In order that a court may
validly try and decide a case, it must have jurisdiction over the persons of the parties. (Banco Español
Filipino vs. Palanca, 37 Phil. 921; Perkins vs. Dizon, 40 Off. Gaz. No. 7, 3d Sup. p. 216.) But in some instances it is
said that the court should also have jurisdiction over the issue (15 C. J. 734; Hutts vs. Martin, 134 Ind. 587, 33 N. E.
676), meaning thereby that the issue being tried and decided by the court be within the issues raised in the
pleadings. But this kind of jurisdiction should be distinguished from jurisdiction over the subject-matter the latter
being conferred by law and the former by the pleadings. Jurisdiction over the issue, unlike jurisdiction over the
subject-matter, may be conferred by consent either express or implied of the parties. (Rule 17, sec. 4, Rules of
Court.) Although an issue is not duly pleaded it may validly be tried and decided if no timely objection is made
thereto by the parties. This cannot be done when jurisdiction over the subject-matter is involved. In truth, jurisdiction
over the issue is an expression of a principle that is involved in jurisdiction over the persons of the parties. Where,
for instance, an issue is not duly pleaded in the complaint, the defendant cannot be said to have been served with
process as to that issue. (Cf. Atkins etc. Co. vs. Domingo, 44 Phil. 680). At any rate, whether or not the court has
jurisdiction over a specific issue is a question that requires nothing except an examination of the pleadings, and this
function is without such importance as call for the intervention of this Court.

Furthermore, this question of jurisdiction is unsubstantial. It is well-settled rule that the institution of suffrage is of
public, not private, interest, and the court may examine all the ballots after the ballot boxes are opened in order to
determine which are legal and which are illegal, even though neither of the parties raised any question as to their
illegality. (Yalung vs. Atienza, 52 Phil. 781; Cecilio vs. Tomacruz, 62 Phil. 689; Cosculluela vs. Gaston, 63 Phil. 41).

Wherefore, this case is hereby remanded to the Court of Appeals for further proceedings.

Avaceña, C.J., Abad Santos, Diaz, Horilleno, and Ozaeta, JJ., concur.

- Morales vs. court of Appeals, 283 SCRA 211, 225

[ G.R. Nos. 217126-27, November 10, 2015 ]
CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN,
PETITIONER, VS. COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN S.
BINAY, JR., RESPONDENTS.

DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and immemorially acknowledged so to be[.]"[1]

The Case

Before the Court is a petition for certiorari and prohibition[2] filed on March 25, 2015 by petitioner Conchita Carpio Morales, in her
capacity as the Ombudsman (Ombudsman), through the Office of the Solicitor General (OSG), assailing: (a) the Resolution [3] dated
March 16, 2015 of public respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private respondent Jejomar
Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary restraining order (TRO) against the implementation of the Joint
Order[4] dated March 10, 20,15 of the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City Government of Makati, for six (6) months without pay; and
(b) the Resolution[5] dated March 20, 2015 of the CA, ordering the Ombudsman to comment on Binay, Jr.'s petition for
contempt[6] in CA-G.R. SP No. 139504.

Pursuant to the Resolution[7] dated April 6, 2015, the CA issued a writ of preliminary injunction[8] (WPI) in CA-G.R. SP No. 139453 which
further enjoined the implementation of the preventive suspension order, prompting the Ombudsman to file a supplemental petition[9] on
April 13, 2015.
 The Facts

On July 22, 2014, a complaint/affidavit[10] was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso VI before the Office of the
Ombudsman against Binay, Jr. and other public officers and employees of the City Government of Makati (Binay, Jr., et al), accusing
them of Plunder[11] and violation of Republic Act No. (RA) 3019,[12] otherwise known as "The Anti-Graft and Corrupt Practices Act," in
connection with the five (5) phases of the procurement and construction of the Makati City Hall Parking Building (Makati Parking
Building).[13]

On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators[14] to conduct a fact-finding investigation, submit
an investigation report, and file the necessary complaint, if warranted (1st Special Panel).[15] Pursuant to the Ombudsman's directive, on
March 5, 2015, the 1st Special Panel filed a complaint[16] (OMB Complaint) against Binay, Jr., et al, charging them with six (6)
administrative cases[17] for Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service, and six
(6) criminal cases[18] for violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification of Public Documents
(OMB Cases).[19]

As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities attending the following procurement and
construction phases of the Makati Parking Building project, committed during his previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)[20]

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award[21] for Phase III of the Makati Parking Building project to Hilmarc's
Construction Corporation (Hilmarc's), and consequently, executed the corresponding contract[22] on September 28, 2010,[23] without the
required publication and the lack of architectural design,[24] and approved the release of funds therefor in the following amounts as
follows: (1) P130,518,394.80 on December 15, 2010;[25] (2) P134,470,659.64 on January 19, 2011;[26] (3) P92,775,202.27 on February
25, 2011;[27] (4) P57,148,625.51 on March 28, 2011;[28] (5) P40,908,750.61 on May 3, 2011;[29] and (6) P106,672,761.90 on July 7, 2011;
[30]

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award[31] for Phase IV of the Makati Parking Building project to Hilmarc's, and
consequently, executed the corresponding contract[32] on August 18, 2011,[33] without the required publication and the lack of
architectural design,[34] and approved the release of funds therefor in the following amounts as follows: (1) P182,325,538.97 on October
4, 2011;[35] (2) P173,132,606.91 on October 28, 2011;[36] (3) P80,408,735.20 on December 12, 2011;[37] (4) P62,878,291.81
on February 10, 2012;[38] and (5) P59,639,167.90 on October 1, 2012;[39]

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award[40] for Phase V of the Makati Parking Building project to Hilmarc's, and
consequently, executed the corresponding contract[41] on September 13, 2012,[42] without the required publication and the lack of
architectural design,[43] and approved the release of the funds therefor in the amounts of P32,398,220.05[44] and
P30,582,629.30[45] on December 20, 2012; and

Binay, Jr.'s Second Term (2013 to 2016)[46]

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining balance of the September 13, 2012
contract with Hilmarc's for Phase V of the Makati Parking Building project in the amount of P27,443,629.97;[47] and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the contract[48] with MANA Architecture &
Interior Design Co. (MANA) for the design and architectural services covering the Makati Parking Building project in the amount of
P429,011.48.[49]

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a preliminary investigation and
administrative adjudication on the OMB Cases (2nd Special Panel).[50] Thereafter, on March 9, 2015, the 2nd Special Panel issued
separate orders[51] for each of the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.[52]

Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the recommendation of the 2nd Special Panel, issued
on March 10, 2015, the subject preventive suspension order, placing Binay, Jr., et al. under preventive suspension for not more than
six (6) months without pay, during the pendency of the OMB Cases.[53] The Ombudsman ruled that the requisites for the preventive
suspension of a public officer are present,[54] finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong given that (1) the losing
bidders and members of the Bids and Awards Committee of Makati City had attested to the irregularities attending the Makati Parking
Building project; (2) the documents on record negated the publication of bids; and (3) the disbursement vouchers, checks, and official
receipts showed the release of funds; and (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious
Dishonesty, and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if proven to be true, warrant removal from
public service under the Revised Rules on Administrative Cases in the Civil Service (RRACCS), and (3) Binay, Jr., et al.'s respective
positions give them access to public records and allow them to influence possible witnesses; hence, their continued stay in office may
prejudice the investigation relative to the OMB Cases filed against them.[55] Consequently, the Ombudsman directed the Department of
Interior and Local Government (DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to immediately implement the
preventive suspension order against Binay, Jr., et al., upon receipt of the same.[56]

On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City Mayor, and received by Maricon
Ausan, a member of Binay, Jr.'s staff.[57]

The Proceedings Before the CA

On even date,[58] Binay, Jr. filed a petition for certiorari[59] before the CA, docketed as CA-G.R. SP No. 139453, seeking the nullification
of the preventive suspension order, and praying for the issuance of a TRO and/or WPI to enjoin its implementation.[60] Primarily, Binay,
Jr. argued that he could not be held administratively liable for any anomalous activity attending any of the five (5) phases of the
Makati Parking Building project since: (a) Phases I and II were undertaken before he was elected Mayor of Makati in 2010; and (b)
Phases III to V transpired during his first term and that his re-election as City Mayor of Makati for a second term effectively
condoned his administrative liability therefor, if any, thus rendering the administrative cases against him moot and academic.[61] In
any event, Binay, Jr. claimed that the Ombudsman's preventive suspension order failed to show that the evidence of guilt
presented against him is strong, maintaining that he did not participate in any of the purported irregularities.[62] In support of his
prayer for injunctive relief, Binay, Jr. argued that he has a clear and unmistakable right to hold public office, having won by landslide
vote in the 2010 and 2013 elections, and that, in view of the condonation doctrine, as well as the lack of evidence to sustain the
charges against him, his suspension from office would undeservedly deprive the electorate of the services of the person they have
conscientiously chosen and voted into office.[63]

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the preventive suspension order through the
DILG National Capital Region - Regional Director, Renato L. Brion, CESO III (Director Brion), who posted a copy thereof on the wall of
the Makati City Hall after failing to personally serve the same on Binay, Jr. as the points of entry to the Makati City Hall were closed. At
around 9:47 a.m., Assistant City Prosecutor of Makati Billy C. Evangelista administered the oath of office on Makati City Vice Mayor
Romulo V. Peña, Jr. (Peña, Jr.) who thereupon assumed office as Acting Mayor.[64]

At noon of the same day, the CA issued a Resolution[65] (dated March 16, 2015), granting Binay, Jr.'s prayer for a TRO,
[66]
notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier that day.[67] Citing the case of Governor Garcia, Jr. v. CA,
[68]
the CA found that it was more prudent on its part to issue a TRO in view of the extreme urgency of the matter and seriousness of the
issues raised, considering that if it were established that the acts subject of the administrative cases against Binay, Jr. were all
committed during his prior term, then, applying the condonation doctrine, Binay, Jr.'s re-election meant that he can no longer be
administratively charged.[69] The CA then directed the Ombudsman to comment on Binay, Jr.'s petition for certiorari.[70]

On March 17, 2015, the Ombudsman manifested[71] that the TRO did not state what act was being restrained and that since the
preventive suspension order had already been served and implemented, there was no longer any act to restrain.[72]

On the same day, Binay, Jr. filed a petition for contempt,[73] docketed as CA-G.R. SP No. 139504, accusing Secretary Roxas, Director
Brion, the officials of the Philippine National Police, and Pena, Jr. of deliberately refusing to obey the CA, thereby allegedly impeding,
obstructing, or degrading the administration of justice.[74] The Ombudsman and Department of Justice Secretary Leila M. De Lima were
subsequently impleaded as additional respondents upon Binay, Jr.'s filing of the amended and supplemental petition for
contempt[75] (petition for contempt) on March 19, 2015.[76] Among others, Binay, Jr. accused the Ombudsman and other respondents
therein for willfully and maliciously ignoring the TRO issued by the CA against the preventive suspension order.[77]

In a Resolution[78] dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504,
and, without necessarily giving due course to Binay, Jr.'s petition for contempt, directed the Ombudsman to file her comment
thereto.[79] The cases were set for hearing of oral arguments on March 30 and 31, 2015.[80]

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman filed the present petition before this
Court, assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the
March 20, 2015 Resolution directing her to file a comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504. [81] The
Ombudsman claims that: (a) the CA had no jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA 6770, [82] or "The
Ombudsman Act of 1989," which states that no injunctive writ could be issued to delay the Ombudsman's investigation unless there is
prima facie evidence that the subject matter thereof is outside the latter's jurisdiction;[83] and (b) the CA's directive for the Ombudsman
to comment on Binay, Jr.'s petition for contempt is illegal and improper, considering that the Ombudsman is an impeachable officer, and
therefore, cannot be subjected to contempt proceedings.[84]

In his comment[85] filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987 Constitution specifically grants the CA
judicial power to review acts of any branch or instrumentality of government, including the Office of the Ombudsman, in case of grave
abuse of discretion amounting to lack or excess of jurisdiction, which he asserts was committed in this case when said office issued the
preventive suspension order against him.[86] Binay, Jr. posits that it was incumbent upon the Ombudsman to1 have been apprised of the
condonation doctrine as this would have weighed heavily in determining whether there was strong evidence to warrant the issuance of
the preventive suspension order.[87] In this relation, Binay, Jr. maintains that the CA correctly enjoined the implementation of the
preventive suspension order given his clear and unmistakable right to public office, and that it is clear that he could not be held
administratively liable for any of the charges against him since his subsequent re-election in 2013 operated as a condonation of any
administrative offenses he may have committed during his previous term.[88] As regards the CA's order for the Ombudsman to comment
on his petition for contempt, Binay, Jr. submits that while the Ombudsman is indeed an impeachable officer and, hence, cannot be
removed from office except by way of impeachment, an action for contempt imposes the penalty of fine and imprisonment, without
necessarily resulting in removal from office. Thus, the fact that the Ombudsman is an impeachable officer should not deprive the CA of
its inherent power to punish contempt.[89]

Meanwhile, the CA issued a Resolution[90] dated April 6, 2015, after the oral arguments before it were held,[91] granting Binay, Jr.'s
prayer for a WPI, which further enjoined the implementation of the preventive suspension order. In so ruling, the CA found that Binay,
Jr. has an ostensible right to the final relief prayed for, namely, the nullification of the preventive suspension order, in view of the
condonation doctrine, citing Aguinaldo v. Santos.[92] Particularly, it found that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati condoned any administrative liability arising
from anomalous activities relative to the Makati Parking Building project from 2007 to 2013.[93] In this regard, the CA added that,
although there were acts which were apparently committed by Binay, Jr. beyond his first term — namely, the alleged payments on July
3, July 4, and July 24, 2013,[94] corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively
liable therefor based on the cases of Salalima v. Guingona, Jr.,[95] and Mayor Garcia v. Mojica[96] wherein the condonation doctrine
was still applied by the Court although the payments were made after the official's re-election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election.[97] To this, the CA added that there was no concrete evidence of Binay,
Jr.'s participation for the alleged payments made on July 3, 4, and 24, 2013.[98]

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the Ombudsman filed a supplemental
petition[99] before this Court, arguing that the condonation doctrine is irrelevant to the determination of whether the evidence of guilt is
strong for purposes of issuing preventive suspension orders. The Ombudsman also maintained that a reliance on the condonation
doctrine is a matter of defense, which should have been raised by Binay, Jr. before it during the administrative proceedings, and that, at
any rate, there is no condonation because Binay, Jr. committed acts subject of the OMB Complaint after his re-election in 2013.[100]

On April 14 and 21, 2015,[101] the Court conducted hearings for the oral arguments of the parties. Thereafter, they were required to file
their respective memoranda.[102] In compliance thereto, the Ombudsman filed her Memorandum[103] on May 20, 2015, while Binay, Jr.
submitted his Memorandum the following day.[104]

Pursuant to a Resolution[105] dated June 16, 2015, the Court directed the parties to comment on each other's memoranda, and the OSG
to comment on the Ombudsman's Memorandum, all within ten (10) days from receipt of the notice.

On July 15, 2015, both parties filed their respective comments to each other's memoranda.[106] Meanwhile, on July 16, 2015, the OSG
filed its Manifestation In Lieu of Comment,[107] simply stating that it was mutually agreed upon that the Office of the Ombudsman would
file its Memorandum, consistent with its desire to state its "institutional position."[108] In her Memorandum and Comment to Binay, Jr.'s
Memorandum, the Ombudsman pleaded, among others, that this Court abandon the condonation doctrine.[109] In view of the foregoing,
the case was deemed submitted for resolution.
 The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted before this Court, the main issues to be
resolved in seriatim are as follows:

I. Whether or not the present petition, and not motions for reconsideration of the assailed CA issuances in CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504, is the Ombudsman's plain, speedy, and adequate remedy;

II. Whether or not the CA has subject matter jurisdiction over the main petition for certiorari in CA-G.R. SP No. 139453;
III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining the implementation of a preventive
suspension order issued by the Ombudsman;
IV. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the WPI in CA-G.R. SP No. 139453
enjoining the implementation of the preventive suspension order against Binay, Jr. based on the condonation doctrine; and
V. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s petition for contempt in CA- G.R. SP No.
139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.

I.

A common requirement to both a petition for certiorari and a petition for prohibition taken under Rule 65 of the 1997 Rules of Civil
Procedure is that the petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law. Sections 1 and 2
thereof provide:

Section 1. Petition for certiorari. - When any 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, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are 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 other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts r with certainty and praying
that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice may require.

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior to resorting to the extraordinary
remedy of certiorari or prohibition since a motion for reconsideration may still be considered as a plain, speedy, and adequate remedy
in the ordinary course of law. The rationale for the pre-requisite is to grant an opportunity for the lower court or agency to correct any
actual or perceived error attributed to it by the re-examination of the legal and factual circumstances of the case.[110]

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal remedies and the danger of failure of
justice without the writ, that must usually determine the propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate
if it will promptly relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower court or agency, x x
x."[111]

In this light, certain exceptions were crafted to the general rule requiring a prior motion for reconsideration before the filing of a petition
for certiorari, which exceptions also apply to a petition for prohibition.[112] These are: (a) where the order is a patent nullity, as where the
court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by
the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the
resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where
petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest
is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack
of due process; (h) where the proceedings were ex parte or in which the petitioner had no opportunity to object; and (i) where the
issue raised is one purely of law or where public interest is involved.[113]

In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first time, the question on the authority of
the CA - and of this Court, for that matter - to enjoin the implementation of a preventive suspension order issued by the Office of the
Ombudsman is put to the fore. This case tests the constitutional and statutory limits of the fundamental powers of key government
institutions - namely, the Office of the Ombudsman, the Legislature, and the Judiciary - and hence, involves an issue of transcendental
public importance that demands no less than a careful but expeditious resolution. Also raised is the equally important issue on the
propriety of the continuous application of the condonation doctrine as invoked by a public officer who desires exculpation from
administrative liability. As such, the Ombudsman's direct resort to certiorari and prohibition before this Court, notwithstanding her failure
to move for the prior reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the CA,
is justified.

II.

Albeit raised for the first time by the Ombudsman in her Memorandum,[114] it is nonetheless proper to resolve the issue on the CA's lack
of subject matter jurisdiction over the main petition for certiorari in CA-G.R. SP No. 139453, in view of the well-established rule that a
court's jurisdiction over the subject matter may be raised at any stage of the proceedings. The rationale is that subject matter
jurisdiction is conferred by law, and the lack of it affects the very authority of the court to take cognizance of and to render judgment on
the action.[115] Hence, it should be preliminarily determined if the CA indeed had subject matter jurisdiction over the main CA-G.R. SP
No. 139453 petition, as the same determines the validity of all subsequent proceedings relative thereto. It is noteworthy to point out that
Binay, Jr. was given the opportunity by this Court to be heard on this issue,[116] as he, in fact, duly submitted his opposition through his
comment to the Ombudsman's Memorandum.[117] That being said, the Court perceives no reasonable objection against ruling on this
issue.

The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main petition, and her corollary prayer for its
dismissal, is based on her interpretation of Section 14, RA 6770, or the Ombudsman Act,[118] which reads in full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction
of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme
Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the Supreme Court[119]) from issuing a writ of
injunction to delay an investigation being conducted by the Office of the Ombudsman. Generally speaking, "[injunction is a judicial writ,
process or proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the main action or merely a
provisional remedy for and as an incident in the main action."[120] Considering the textual qualifier "to delay," which connotes a
suspension of an action while the main case remains pending, the "writ of injunction" mentioned in this paragraph could only refer to
injunctions of the provisional kind, consistent with the nature of a provisional injunctive relief.

The exception to the no injunction policy is when there is prima facie evidence that the subject matter of the investigation is outside the
office's jurisdiction. The Office of the Ombudsman has disciplinary authority over all elective and appointive officials of the government
and its subdivisions, instrumentalities, and agencies, with the exception only of impeachable officers, Members of Congress, and the
Judiciary.[121] Nonetheless, the Ombudsman retains the power to investigate any serious misconduct in office allegedly committed by
officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.[122] Note that the
Ombudsman has concurrent jurisdiction over certain administrative cases which are within the jurisdiction of the regular courts or
administrative agencies, but has primary jurisdiction to investigate any act or omission of a public officer or employee who is under the
jurisdiction of the Sandiganbayan.[123]

On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or application for remedy may be heard
against the decision or findings of the Ombudsman, with the exception of the Supreme Court on pure questions of law. This paragraph,
which the Ombudsman particularly relies on in arguing that the CA had no jurisdiction over the main CA-G.R. SP No. 139453 petition,
as it is supposedly this Court which has the sole jurisdiction to conduct a judicial review of its decisions or findings, is vague for two (2)
reasons: (1) it is unclear what the phrase "application for remedy" or the word "findings" refers to; and (2) it does not specify what
procedural remedy is solely allowable to this Court, save that the same be taken only against a pure question of law. The task then, is
to apply the relevant principles of statutory construction to resolve the ambiguity.

"The underlying principle of all construction is that the intent of the legislature should be sought in the words employed to express it,
and that when found[,] it should be made to govern, x x x. If the words of the law seem to be of doubtful import, it may then perhaps
become necessary to look beyond them in order to ascertain what was in the legislative mind at the time the law was enacted; what the
circumstances were, under which the action was taken; what evil, if any, was meant to be redressed; x x x [a]nd where the law has
contemporaneously been put into operation, and in doing so a construction has necessarily been put upon it, this construction,
especially if followed for some considerable period, is entitled to great respect, as being very probably a true expression of the
legislative purpose, and is not lightly to be overruled, although it is not conclusive."[124]

As an aid to construction, courts may avail themselves of the actual proceedings of the legislative body in interpreting a statute of
doubtful meaning. In case of doubt as to what a provision of a statute means, the meaning put to the provision during the legislative
deliberations may be adopted,[125] albeit not controlling in the interpretation of the law.[126]

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on the matter of judicial review of her
office's decisions or findings, is supposedly clear from the following Senate deliberations:[127]

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition for" delete the word "review" and in
lieu thereof, insert the word CERTIORARI. So that, review or appeal from the decision of the Ombudsman would only be taken not on a
petition for review, but on certiorari.

The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to reverse the decision under
review?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts of the Ombudsman would be
almost conclusive if supported by substantial evidence. Second, we would not unnecessarily clog the docket of the Supreme
Court. So, it in effect will be a very strict appeal procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive remedies available to a respondent,
the respondent himself has the right to exhaust the administrative remedies available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme Court only on certiorari?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential appointee who is the respondent, if
there is f no certiorari available, is the respondent given the right to exhaust his administrative remedies first before the Ombudsman
can take the appropriate action?

Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law principle that before one can go to
court, he must exhaust all administrative remedies xxx available to him before he goes and seeks judicial review.

xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of appeal from one of a petition
for review to a petition for certiorari?

Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the effect that the finding of facts of
the Ombudsman is conclusive if supported by substantial evidence.

Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I concur, that in an appeal by certiorari,
the appeal is more difficult. Because in certiorari it is a matter of discretion on the part of the court, whether to give due
course to the petition or dismiss it outright. Is that not correct, Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari, the issue is limited to whether or not the Ombudsman here has acted
without jurisdiction and has committed a grave abuse of discretion amounting to lack of jurisdiction. Is that not the
consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to make it harder to have a judicial
review, but should be limited only to cases that I have enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a petition for review and a petition for
certiorari; because before, under the 1935 Constitution appeal from any order, ruling or decision of the COMELEC shall be by means of
review. But under the Constitution it is now by certiorari and the Supreme Court said that by this change, the court exercising judicial
review will not inquire into the facts, into the evidence, because we will not go deeply by way of review into the evidence on record but
its authority will be limited to a determination of whether the administrative agency acted without, or in excess of, jurisdiction, or
committed a grave abuse of discretion. So, I assume that that is the purpose of this amendment, Mr. President.

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated, Mr. President.

xxxx

The President. It is evident that there must be some final authority to render decisions. Should it be the Ombudsman or
should it be the Supreme Court?

Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and has to be the Supreme Court to make
the final determination.

The President. Then if that is so, we have to modify Section 17.

Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to introduce an appropriate change
during the period of Individual Amendments.

xxxx

The President. All right. Is there any objection to the amendment inserting the word CERTIORARI instead of "review"? [Silence]
Hearing none, the same is approved.[128]

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the provision debated on was Section 14,
RA 6770, as the Ombudsman invokes. Note that the exchange begins with the suggestion of Senator Angara to delete the word
"review" that comes after the phrase "petition for review" and, in its stead, insert the word "certiorari" so that the "review or appeal from
the decision of the Ombudsman would not only be taken on a petition for review, but on certiorari" The ensuing exchange between
Senators Gonzales and Angara then dwells on the purpose of changing the method of review from one of a petition for review to a
petition for certiorari - that is, to make "the appeal x x x more difficult." Ultimately, the amendment to the change in wording, from
"petition for review" to "petition for certiorari" was approved.

Noticeably, these references to a "petition for review" and the proposed "petition for certiorari" are nowhere to be found in the text of
Section 14, RA 6770. In fact, it was earlier mentioned that this provision, particularly its second paragraph, does not indicate what
specific procedural remedy one should take in assailing a decision or finding of the Ombudsman; it only reveals that the remedy be
taken to this Court based on pure questions of law. More so, it was even commented upon during the oral arguments of this
case[129] that there was no debate or clarification made on the current formulation of the second paragraph of Section 14, RA 6770 per
the available excerpts of the Senate deliberations. In any case, at least for the above-cited deliberations, the Court finds no adequate
support to sustain the Ombudsman's entreaty that the CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453
petition.

On the contrary, it actually makes greater sense to posit that these deliberations refer to another Ombudsman Act provision, namely
Section 27, RA 6770. This is because the latter textually reflects the approval of Senator Angara's suggested amendment, i.e., that the
Ombudsman's decision or finding may be assailed in a petition for certiorari to this Court (fourth paragraph), and further, his comment
on the conclusive nature of the factual findings of the Ombudsman, if supported by substantial evidence (third paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of the Ombudsman are immediately effective
and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after
receipt of written notice and shall be entertained only on any of the following grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be
resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained.
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or
decision imposing the penalty of public censure or reprimand, suspension of not more than one (1) month's salary shall be final and
unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to
the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive
or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the ' Ombudsman as the interest of justice may require. (Emphasis and
underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition for certiorari" should be taken in
accordance with Rule 45 of the Rules of Court, as it is well-known that under the present 1997 Rules of Civil Procedure, petitions
for certiorari are governed by Rule 65 of the said Rules. However, it should be discerned that the Ombudsman Act was passed way
back in 1989[130] and, hence, before the advent of the 1997 Rules of Civil Procedure.[131] At that time, the governing 1964 Rules of
Court,[132] consistent with Section 27, RA 6770, referred to the appeal taken thereunder as a petition for certiorari, thus possibly
explaining the remedy's textual denomination, at least in the provision's final approved version:

RULE 45
Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari, from a judgment of the Court of Appeals, by filing
with the Supreme Court a petition for certiorari, within fifteen (15) days from notice of judgment or of the denial of his motion for
reconsideration filed in due time, and paying at the same time, to the clerk of said court the corresponding docketing fee. The petition
shall not be acted upon without proof of service of a copy thereof to the Court of Appeals. (Emphasis supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770 notwithstanding, the other principles of
statutory construction can apply to ascertain the meaning of the provision.

To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any appeal or application for remedy
against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law." ;

As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of remedies against issuances of the
Ombudsman, by prohibiting: (a) an appeal against any decision or finding of the Ombudsman, and (b) "any application of remedy"
(subject to the exception below) against the same. To clarify, the phrase "application for remedy," being a generally worded provision,
and being separated from the term "appeal" by the disjunctive "or",[133] refers to any remedy (whether taken mainly or provisionally),
except an appeal, following the maxim generalia verba sunt generaliter intelligenda: general words are to be understood in a general
sense.[134] By the same principle, the word "findings," which is also separated from the word "decision" by the disjunctive "or", would
therefore refer to any finding made by the Ombudsman (whether final or provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the specific procedural vehicle is not explicit
from its text, it is fairly deducible that the second paragraph of Section 14, RA 6770 excepts, as the only allowable remedy against "the
decision or findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy taken to the Supreme Court
on "pure questions of law," whether under the 1964 Rules of Court or the 1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters involved, the assignment of errors made
in the court below, and the reasons relied on for the allowance of the petition, and it should be accompanied with a true copy of the
judgment sought to be reviewed, together with twelve (12) copies of the record on appeal, if any, and of the petitioner's brief as filed in
the Court of Appeals. A verified statement of the date when notice of judgment and denial of the motion for reconsideration, if any, were
received shall accompany the petition.

Only questions of law may be raised in the petition and must be distinctly set forth. If no record on appeal has been filed in the
Court of Appeals, the clerk of the Supreme Court, upon admission of the petition, shall demand from the Court of Appeals the elevation
of the whole record of the case. (Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45
Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a judgment, final order or resolution of the
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law,
may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of
preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its
pendency. (Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition for certiorari under Rule 65 of the 1964
Rules of Court or the 1997 Rules of Procedure is a suggestion that defies traditional norms of procedure. It is basic procedural law that
a Rule 65 petition is based on errors of jurisdiction, and not errors of judgment to which the classifications of (a) questions of fact, (b)
questions of law, or (c) questions of mixed fact and law, relate to. In fact, there is no procedural rule, whether in the old or new Rules,
which grounds a Rule 65 petition on pure questions of law. Indeed, it is also a statutory construction principle that the lawmaking body
cannot be said to have intended the establishment of conflicting and hostile systems on the same subject. Such a result would render
legislation a useless and idle ceremony, and subject the laws to uncertainty and unintelligibility.[135] There should then be no confusion
that the second paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In sum, the appropriate
construction of this Ombudsman Act provision is that all remedies against issuances of the Office of the Ombudsman are prohibited,
except the above-stated Rule 45 remedy to the Court on pure questions of law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on remedies is inappropriate since a Rule 45
appeal -which is within the sphere of the rules of procedure promulgated by this Court - can only be taken against final decisions or
orders of lower courts,[136] and not against "findings" of quasi-judicial agencies. As will be later elaborated upon, Congress cannot
interfere with matters of procedure; hence, it cannot alter the scope of a Rule 45 appeal so as to apply to interlocutory "findings" issued
by the Ombudsman. More significantly, by confining the remedy to a Rule 45 appeal, the provision takes away the remedy
of certiorari, grounded on errors of jurisdiction, in denigration of the judicial power constitutionally vested in courts. In this light, the
second paragraph of Section 14, RA 6770 also increased this Court's appellate jurisdiction, without a showing, however, that it gave its
consent to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770 (as above-cited), which was
invalidated in the case of Fabian v. Desierto[137] (Fabian).[138]

In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as unconstitutional since it had the effect of increasing
the appellate jurisdiction of the Court without its advice and concurrence in violation of Section 30, Article VI of the 1987 Constitution.
[139]
Moreover, this provision was found to be inconsistent with Section 1, Rule 45 of the present 1997 Rules of Procedure which, as
above-intimated, applies only to a review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-judicial agencies, such as the Office of the
Ombudsman, the remedy now being a Rule 43 appeal to the Court of Appeals. In Ruivivar v. Office of the Ombudsman,[140] the
Court's ratiocinations and ruling in Fabian were recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of R.A. No. 6770 (The Ombudsman's Act)
and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the Ombudsman) on the availability of appeal before the
Supreme Court to assail a decision or order of the Ombudsman in administrative cases. In Fabian, we invalidated Section 27 of R.A.
No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other rules implementing the Act) insofar as it provided for appeal
by certiorari under Rule 45 from the decisions or orders of the Ombudsman in administrative cases. We held that Section 27
of R.A. No. 6770 had the effect, not only of increasing the appellate jurisdiction of this Court without its advice and
concurrence in violation of Section 30, Article VI of the Constitution; it was also inconsistent with Section 1, Rule 45 of the
Rules of Court which provides that a petition for review on certiorari shall apply only to a review of "judgments or final orders
of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other courts authorized by
law." We pointedly said:
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line
with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals
from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA under the provisions of
Rule 43.[141] (Emphasis supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or findings" of the Ombudsman to a Rule 45
appeal and thus - similar to the fourth paragraph of Section 27, RA 6770[142] - attempts to effectively increase the Supreme Court's
appellate jurisdiction without its advice and concurrence,[143] it is therefore concluded that the former provision is also unconstitutional
and perforce, invalid. Contrary to the Ombudsman's posturing,[144] Fabian should squarely apply since the above-stated Ombudsman
Act provisions are in part materia in that they "cover the same specific or particular subject matter,"[145] that is, the manner of judicial
review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the existence of the CA's subject matter
jurisdiction over the main CA-G.R. SP No. 139453 petition, including all subsequent proceedings relative thereto, as the Ombudsman
herself has developed, the Court deems it proper to resolve this issue ex mero motu (on its own motion[146]). This procedure, as was
similarly adopted in Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to the case, neither of whom did
so in this case, but that is not an inflexible rule, as we shall explain.

Since the constitution is intended for the observance of the judiciary and other departments of the government and the judges are
sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands or countenance evasions thereof.
When it is clear , that a statute transgresses the authority vested in a legislative body, it is the duty of the courts to declare that the
constitution, and not the statute, governs in a case before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the pleadings, the rule has been
recognized to admit of certain exceptions. It does not preclude a court from inquiring into its own jurisdiction or compel it to enter a
judgment that it lacks jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the
court has no jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it necessarily follows that it may
inquire into the constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless the
jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any time or on the
court's own motion. The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where that fact is
developed. The court has a clearly recognized right to determine its own jurisdiction in any proceeding.[147] (Emphasis supplied)
D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr. before the CA in order to nullify the
preventive suspension order issued by the Ombudsman, an interlocutory order,[148] hence, unappealable.[149]

In several cases decided after Fabian, the Court has ruled that Rule 65 petitions for certiorari against unappelable issuances[150] of the
Ombudsman should be filed before the CA, and not directly before this Court:

In Office of the Ombudsman v. Capulong[151] (March 12, 2014), wherein a preventive suspension order issued by the Office of the
Ombudsman was - similar to this case - assailed through a Rule 65 petition for certiorari filed by the public officer before the CA, the
Court held that "[t]here being a finding of grave abuse of discretion on the part of the Ombudsman, it was certainly imperative for the
CA to grant incidental reliefs, as sanctioned by Section 1 of Rule 65."[152]

In Dagan v. Office of the Ombudsman[153] (November 19, 2013), involving a Rule 65 petition for certiorari assailing a final and
unappealable order of the Office of the Ombudsman in an administrative case, the Court remarked that "petitioner employed the correct
mode of review in this case, i.e., a special civil action for certiorari before the Court of Appeals."[154] In this relation, it stated that while "a
special civil action for Certiorari is within the concurrent original jurisdiction of the Supreme Court and the Court of Appeals, such
petition should be initially filed with the Court of Appeals in observance of the doctrine of hierarchy of courts." Further, the Court
upheld Barata v. Abalos, Jr.[155] (June 6, 2001), wherein it was ruled that the remedy against final and unappealable orders of the Office
of the Ombudsman in an administrative case was a Rule 65 petition to the CA. The same verdict was reached
in Ruivivar[156] (September 16, 2008).

Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court, consistent with existing jurisprudence,
concludes that the CA has subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition. That being said, the Court now
examines the objections of the Ombudsman, this time against the CA's authority to issue the assailed TRO and WPI against the
implementation of the preventive suspension order, incidental to that main case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has no jurisdiction to issue any provisional
injunctive writ against her office to enjoin its preventive suspension orders. As basis, she invokes the first paragraph of Section 14,
RA 6770 in conjunction with her office's independence under the 1987 Constitution. She advances the idea that "[i]n order to further
ensure [her office's] independence, [RA 6770] likewise insulated it from judicial intervention,"[157] particularly, "from injunctive reliefs
traditionally obtainable from the courts,"[158] claiming that said writs may work "just as effectively as direct harassment or political
pressure would."[159]

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the Ombudsman:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas[,] and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. (Emphasis supplied)

In Gonzales III v. Office of the President[160] (Gonzales III), the Court traced the historical underpinnings of the Office of the
Ombudsman:

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the people's medium for
airing grievances and for direct redress against abuses and misconduct in the government. Ultimately, however, these agencies failed
to fully realize their objective for lack of the political independence necessary for the effective performance of their function as
government critic.

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-mandated office to give it political
independence and adequate powers to enforce its mandate. Pursuant to the ( 1973 Constitution, President Ferdinand Marcos enacted
Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to be known
as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any administrative act of any administrative
agency, including any government-owned or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979, the
powers previously vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the exclusive authority
to conduct preliminary investigation of all cases cognizable by the Sandiganbayan, file the corresponding information, and control the
prosecution of these cases.

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional fiat. Unlike in the 1973
Constitution, its independence was expressly and constitutionally guaranteed. Its objectives are to enforce the state policy in
Section 27, Article II and the standard of accountability in public service under Section 1, Article XI of the 1987 Constitution. These
provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft
and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.[161] (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's mandate, and in correlation, the impetus behind its
independence:

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the "protector of the people"
against the inept, abusive, and corrupt in the Government, to function essentially as a complaints and action bureau. This constitutional
vision of a Philippine Ombudsman practically intends to make the Ombudsman an authority to directly check and guard against the ills,
abuses and excesses , of the bureaucracy. Pursuant to Section 13 (8), Article XI of the 1987 Constitution, Congress enacted RA No.
6770 to enable it to further realize the vision of the Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary authority over
all elective and appointive officials of the Government and its subdivisions, instrumentalities, and agencies, including Members of the
Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the Judiciary.
As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions, although not squarely falling under the
broad powers granted [to] it by the Constitution and by RA No. 6770, if these actions are reasonably in line with its official function and
consistent with the law and the Constitution.

The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance, misfeasance, and nonfeasance of all
public officials, including Members of the Cabinet and key Executive officers, during their tenure. To support these broad powers, the
Constitution saw it fit to insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan
politics and from fear of external reprisal by making it an "independent" office, x x x.

xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful government constitutional agency that is
considered "a notch above other grievance-handling investigative bodies." It has powers, both constitutional and statutory, that are
commensurate , with its daunting task of enforcing accountability of public officers.[162] (Emphasis and underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the Ombudsman's independence vis-a-vis the independence of the
other constitutional bodies. Pertinently, the Court observed:

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions shares certain characteristics
- they do not owe their existence to any act of Congress, but are created by the Constitution itself; additionally, they all enjoy
fiscal autonomy. In general terms, the framers of the Constitution intended that these 'independent' bodies be insulated from
political pressure to the extent that the absence of 'independence' would result in the impairment of their core functions"[163];

(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the
discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional
offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only [of]
the express mandate of the Constitution, but especially as regards the Supreme Court, of the independence and separation of powers
upon which the entire fabric of our constitutional system is based";[164] and

(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for independence. In the deliberations of the 1973
Constitution, the delegates amended the 1935 Constitution by providing for a constitutionally-created Civil Service Commission, instead
of one created by law, on the premise that the effectivity of this body is dependent on its freedom from the tentacles of politics.
In a similar manner, the deliberations of the 1987 Constitution on the Commission on Audit highlighted the developments in the past
Constitutions geared towards insulating the Commission on Audit from political pressure."[165]

At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of the Ombudsman, as well as that of
the foregoing independent bodies, meant freedom from control or supervision of the Executive Department:

[T]he independent constitutional commissions have been consistently intended by the framers to be independent from executive
control or supervision or any form of political influence. At least insofar as these bodies are concerned, jurisprudence is not scarce
on how the "independence" granted to these bodies prevents presidential interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that the Constitutional Commissions,
which have been characterized under the Constitution as "independent," are not under the control of the President, even if they
discharge functions that are executive in nature. The Court declared as unconstitutional the President's act of temporarily appointing
the respondent in that case as Acting Chairman of the [Commission on Elections] "however well-meaning" it might have been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the tenure of the commissioners of the
independent Commission on Human Rights could not be placed under the discretionary power of the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior - but is similar in degree and kind - to
the independence similarly guaranteed by the Constitution to the Constitutional Commissions since all these offices fill the political
interstices of a republican democracy that are crucial to its existence and proper functioning.[166] (Emphases and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a] Deputy or the Special Prosecutor, may be
removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process,"
partially unconstitutional insofar as it subjected the Deputy Ombudsman to the disciplinary authority of the President for violating the
principle of independence. Meanwhile, the validity of Section 8 (2), RA 6770 was maintained insofar as the Office of the Special
Prosecutor was concerned since said office was not considered to be constitutionally within the Office of the Ombudsman and is,
hence, not entitled to the independence the latter enjoys under the Constitution.[167]

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be abolished, nor its constitutionally specified functions and
privileges, be removed, altered, or modified by law, unless the Constitution itself allows, or an amendment thereto is made;

Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom to use or dispose of [its] funds for
purposes germane to [its] functions;[168] hence, its budget cannot be strategically decreased by officials of the political branches of
government so as to impair said functions; and

Third: insulation from executive supervision and control, which means that those within the ranks of the office can only be
disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the Ombudsman from political harassment and
pressure, so as to free it from the "insidious tentacles of politics."[169]

That being the case, the concept of Ombudsman independence cannot be invoked as basis to insulate the Ombudsman from judicial
power constitutionally vested unto the courts. Courts are apolitical bodies, which are ordained to act as impartial tribunals and apply
even justice to all. Hence, the Ombudsman's notion that it can be exempt from an incident of judicial power - that is, a provisional writ of
injunction against a preventive suspension order - clearly strays from the concept's rationale of insulating the office from political
harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.

The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it remains that the first paragraph of Section 14,
RA 6770 textually prohibits courts from extending provisional injunctive relief to delay any investigation conducted by her office. Despite
the usage of the general phrase "[n]o writ of injunction shall be issued by any court," the Ombudsman herself concedes that the
prohibition does not cover the Supreme Court.[170] As support, she cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I would just like to inquire for the
record whether below the Supreme Court, it is understood that there is no injunction policy against the Ombudsman by lower
courts. Or, is it necessary to have a special paragraph for that?

Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction against the Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this being one of the highest constitutional bodies, is to subject this
only to certiorari to the Supreme Court. I think an injunction from the Supreme Court is, of course, in order but no lower
courts should be allowed to interfere. We had a very bad experience with even, let us say, the Forestry Code where no injunction is
supposed to be issued against the Department of Natural Resources. Injunctions are issued right and left by RTC judges all over
the country.

The President. Why do we not make an express provision to that effect?

Senator Angara. We would welcome that, Mr. President.

The President. No [writs of injunction] from the trial courts other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same is approved.[171]

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987 Constitution, acts of the Ombudsman, including
interlocutory orders, are subject to the Supreme Court's power of judicial review As a corollary, the Supreme Court may issue ancillary
mjunctive writs or provisional remedies in the exercise of its power of judicial review over matters pertaining to ongoing investigations
by the Office of the Ombudsman. Respecting the CA, however, the Ombudsman begs to differ.[172]

With these submissions, it is therefore apt to examine the validity of the first paragraph of Section 14, RA 6770 insofar as it prohibits all
courts, except this Court, from issuing provisional writs of injunction to enjoin an Ombudsman investigation. That the constitutionality of
this provision is the lis mota of this case has not been seriously disputed. In fact, the issue anent its constitutionality was properly raised
and presented during the course of these proceedings.[173] More importantly, its resolution is clearly necessary to the complete
disposition of this case.[174]

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),[175] the "Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive, the legislative[,] and the judicial departments of the government."[176] The
constitutional demarcation of the three fundamental powers of government is more commonly known as the principle of separation of
powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica),[177] the Court held that "there is a violation of the separation of powers
principle when one branch of government unduly encroaches on the domain of another."[178] In particular, "there is a violation of the
principle when there is impermissible (a) interference with and/or (b) assumption of another department's functions."[179]

Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme Court and all such lower courts:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.

This Court is the only court established by the Constitution, while all other lower courts may be established by laws passed by
Congress. Thus, through the passage of Batas Pambansa Bilang (BP) 129,[180] known as "The Judiciary Reorganization Act of 1980,"
the Court of Appeals,[181] the Regional Trial Courts,[182] and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts[183] were established. Later, through the passage of RA 1125,[184] and Presidential Decree No. (PD) 1486,[185] the Court of
Tax Appeals, and the Sandiganbayan were respectively established.

In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987 Constitution empowers Congress to define,
prescribe, and apportion the jurisdiction of all courts, except that it may not deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5[186] of the same Article:

Section 2. The Congress shall have the power to define, prescribe, ' and apportion the jurisdiction of the various courts but may not
deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.

xxxx

Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject matter of an action. In The Diocese of
Bacolod v. Commission on Elections,[187] subject matter jurisdiction was defined as "the authority 'to hear and determine cases of the
general class to which the proceedings in question belong and is conferred by the sovereign authority which organizes the
court and defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of this Court (subject to the
aforementioned constitutional limitations), the Court of Appeals, and the trial courts, through the passage of BP 129, as amended.
In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition for certiorari in CA-G.R. SP No. 139453
is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary
writs or processes, whether or not in aid of its appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but also concurrent with the Regional Trial Courts (under
Section 21 (1), Chapter II of BP 129), and the Supreme Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In view
of the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine of hierarchy of courts should be followed.
In People v. Cuaresma,[188] the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary
writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals.[189]

When a court has subject matter jurisdiction over a particular case, as conferred unto it by law, said court may then exercise its
jurisdiction acquired over that case, which is called judicial power.

Judicial power, as vested in the Supreme Court and all other courts established by law, has been defined as the "totality of powers a
court exercises when it assumes jurisdiction and hears and decides a case."[190] Under Section 1, Article VIII of the 1987
Constitution, it includes "the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government."

In Oposa v. Factoran, Jr.[191] the Court explained the expanded scope of judicial power under the 1987 Constitution:

The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as
conferred by law. The second part of the authority represents a broadening of f judicial power to enable the courts of justice to review
what was before forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because they are tainted
with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.[192]

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has acquired over a particular case
conforms to the limits and parameters of the rules of procedure duly promulgated by this Court. In other words, procedure is the
framework within which judicial power is exercised. In Manila Railroad Co. v. Attorney-General,[193] the Court elucidated that "[t]he power
or authority of the court over the subject matter existed and was fixed before procedure in a given cause began. Procedure does not
alter or change that power or authority; it simply directs the manner in which it shall be fully and justly exercised. To be sure,
in certain cases, if that power is not exercised in conformity with the provisions of the procedural law, purely, the court attempting to
exercise it loses the power to exercise it legally. This does not mean that it loses jurisdiction of the subject matter." [194]

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional design, vested unto
Congress, the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in
all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide
a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall
not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court. (Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice[195] (Echegaray), the Court traced the evolution of its rule-making authority, which, under the
1935[196] and 1973 Constitutions,[197] had been priorly subjected to a power-sharing scheme with Congress.[198] As it now stands, the
1987 Constitution textually altered the old provisions by deleting the concurrent power of Congress to amend the rules, thus
solidifying in one body the Court's rule-making powers, in line with the Framers' vision of institutionalizing a "[s]tronger and more
independent judiciary."[199]

The records of the deliberations of the Constitutional Commission would show[200] that the Framers debated on whether or not the
Court's rule-making powers should be shared with Congress. There was an initial suggestion to insert the sentence "The National
Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court", right after the phrase
"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal assistance to the underprivileged" in the enumeration of powers of the
Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead, after the word
"[underprivileged," place a comma (,) to be followed by "the phrase with the concurrence of the National Assembly." Eventually, a
compromise formulation was reached wherein (a) the Committee members agreed to Commissioner Aquino's proposal to delete the
phrase "the National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court"
and (b) in turn, Commissioner Aquino agreed to withdraw his proposal to add "the phrase with the concurrence of the National
Assembly." The changes were approved, thereby leading to the present lack of textual reference to any form of Congressional
participation in Section 5 (5), Article VIII, supra. The prevailing consideration was that "both bodies, the Supreme Court and
the Legislature, have their inherent powers."[201]
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading, practice, and procedure.
As pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the
protection and enforcement of constitutional rights. The Court was also r granted for the first time the power to disapprove rules of
procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of
Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate
rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive.
[202]
(Emphasis and underscoring supplied)

Under its rule-making authority, the Court has periodically passed various rules of procedure, among others, the current 1997 Rules of
Civil Procedure. Identifying the appropriate procedural remedies needed for the reasonable exercise of every court's judicial
power, the provisional remedies of temporary restraining orders and writs of preliminary injunction were thus provided.

A temporary restraining order and a writ of preliminary injunction both constitute temporary measures availed of during the pendency of
the action. They are, by nature, ancillary because they are mere incidents in and are dependent upon the result of the main action. It is
well-settled that the sole object of a temporary restraining order or a writ of preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo[203] until the merits of the case can be heard. They are usually granted when it is made to
appear that there is a substantial controversy between the parties and one of them is committing an act or threatening the immediate
commission of an act that will cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had on
the merits of the case. In other words, they are preservative remedies for the protection of substantive rights or interests, and, hence,
not a cause of action in itself, but merely adjunct to a main suit.[204] In a sense, they are regulatory processes meant to prevent a case
from being mooted by the interim acts of the parties.

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO and a WPI. A preliminary injunction
is defined under Section 1,[205] Rule 58, while Section 3[206] of the same Rule enumerates the grounds for its issuance. Meanwhile, under
Section 5[207] thereof, a TRO may be issued as a precursor to the issuance of a writ of preliminary injunction under certain procedural
parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent power to issue all auxiliary writs,
processes, and other means necessary to carry its acquired jurisdiction into effect under Section 6, Rule 135 of the Rules of
Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, f
processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be
followed in the exercise of such jurisdiction is not specifically pointed out by law[208] or by these rules, any suitable process or mode of
proceeding may be adopted which appears comfortable to the spirit of the said law or rules.

In City of Manila v. Grecia-Cuerdo,[209] which is a case involving "[t]he supervisory power or jurisdiction of the [Court of Tax Appeals]
to issue a writ of certiorari in aid of its appellate jurisdiction"[210] over "decisions, orders or resolutions of the RTCs in local tax cases
originally decided or resolved by them in the exercise of their original or appellate jurisdiction,"[211] the Court ruled that said power
"should coexist with, and be a complement to, its appellate jurisdiction to review, by appeal, the final orders and decisions of the RTC,
in order to have complete supervision over the acts of the latter:"[212]

A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it effectively, to make all orders
that ; will preserve the subject of the action, and to give effect to the final determination of the appeal. It carries with it the power
to protect that jurisdiction and to make the decisions of the court thereunder effective. The court, in aid of its appellate jurisdiction, has
authority to control all auxiliary and incidental matters necessary to the efficient and proper exercise of that jurisdiction. For this
purpose, it may, when necessary, prohibit or restrain the performance of any act which might interfere with the proper exercise of its
rightful jurisdiction in cases pending before it.[213] (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court endowed with subject matter jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are necessary to enable it to act effectively within
such jurisdiction. These should be regarded as powers which are inherent in its jurisdiction and the court must possess them
in order to enforce its rules of practice and to suppress any abuses of its process and to t defeat any attempted thwarting of
such process.

xxxx

Indeed, courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition to
those expressly conferred on them. These inherent powers are such powers as are necessary for the ordinary and efficient
exercise of jurisdiction; or are essential to the existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable to the execution of their granted powers; and
include the power to maintain the court's jurisdiction and render it effective in behalf of the litigants. [214] (Emphases and
underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional principle, articulated way back in the
1936 case of Angara, that "where a general power is conferred or duty enjoined, every particular power necessary for the exercise of
the one or the performance of the other is also conferred."[215]

In the United States, the "inherent powers doctrine refers to the principle, by which the courts deal with diverse matters over which
they are thought to have intrinsic authority like procedural [rule-making] and general judicial housekeeping. To justify the invocation or
exercise of inherent powers, a court must show that the powers are reasonably necessary to achieve the specific purpose for
which the exercise is sought. Inherent powers enable the judiciary to accomplish its constitutionally mandated functions."[216]

In Smothers v. Lewis[217] (Smothers), a case involving the constitutionality of a statute which prohibited courts from enjoining the
enforcement of a revocation order of an alcohol beverage license pending appeal,[218] the Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably necessary for the administration of
justice within the scope of their jurisdiction. x x x [W]e said while considering the rule making power and the judicial power to be
one and the same that ". . . the grant of judicial power [rule making power] to the courts by the constitution carries with it, as a
necessary incident, the right to make that power effective in the administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an exercise of the court's inherent power, and
to this end, stated that any attempt on the part of Congress to interfere with the same was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28 Am. Jur. 2d, Injunctions, Section 15, and
once and for all make clear that a court, once having obtained jurisdiction of a cause of action, has, as an incidental to its constitutional
grant of power, inherent power to do all things reasonably necessary to the administration of justice in the case before it. In the
exercise of this power, a court, when necessary in order to protect or preserve the subject matter of the litigation, to protect
its jurisdiction and to make its judgment effective, may grant or issue a temporary injunction in aid of or ancillary to the
principal action.

The control over this inherent judicial power, in this particular instance the injunction, is exclusively within the constitutional
realm of the courts. As such, it is not within the purview of the legislature to grant or deny the power nor is it within the
purview of the legislature to shape or fashion circumstances under which this inherently judicial power may be or may not be
granted or denied.

This Court has historically recognized constitutional limitations upon the power of the legislature to interfere with or to inhibit the
performance of constitutionally granted and inherently provided judicial functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of a cause of action, has, as incidental to
its general jurisdiction, inherent power to do all things reasonably necessary f to the administration of justice in the case before
it. . ." This includes the inherent power to issue injunctions. (Emphases supplied)

Smothers also pointed out that the legislature's authority to provide a right to appeal in the statute does not necessarily mean that it
could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the right to encroach upon the constitutionally
granted powers of the judiciary. Once the administrative action has ended and the right to appeal arises the legislature is void of
any right to control a subsequent appellate judicial proceeding. The judicial rules have come into play and have preempted
the field.[219] (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress passed the first paragraph of Section 14, RA 6770 and, in so
doing, took away from the courts their power to issue a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it
encroached upon this Court's constitutional rule-making authority. Clearly, these issuances, which are, by nature, provisional reliefs and
auxiliary writs created under the provisions of the Rules of Court, are matters of procedure which belong exclusively within the
province of this Court. Rule 58 of the Rules of Court did not create, define, and regulate a right but merely prescribed the means of
implementing an existing right[220] since it only provided for temporary reliefs to preserve the applicant's right in esse which is threatened
to be violated during the course of a pending litigation. In the case of Fabian,[221] it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a
substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure.

Notably, there have been similar attempts on the part of Congress, in the exercise of its legislative power, to amend the Rules of Court,
as in the cases of: (a) In Re: Exemption of The National Power Corporation from Payment of Filing/ Docket Fees;[222] (b) Re: Petition for
Recognition of the Exemption of the Government Service Insurance System (GSIS) from Payment of Legal Fees;[223] and (c) Baguio
Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes[224] While these cases involved legislative enactments
exempting government owned and controlled corporations and cooperatives from paying filing fees, thus, effectively modifying Rule 141
of the Rules of Court (Rule on Legal Fees), it was, nonetheless, ruled that the prerogative to amend, repeal or even establish new
rules of procedure[225] solely belongs to the Court, to the exclusion of the legislative and executive branches of government.
On this score, the Court described its authority to promulgate rules on pleading, practice, and procedure as exclusive and "[o]ne of the
safeguards of [its] institutional independence."[226]

That Congress has been vested with the authority to define, prescribe, and apportion the jurisdiction of the various courts under Section
2, Article VIII supra, as well as to create statutory courts under Section 1, Article VIII supra, does not result in an abnegation of the
Court's own power to promulgate rules of pleading, practice, and procedure under Section 5 (5), Article VIII supra. Albeit operatively
interrelated, these powers are nonetheless institutionally separate and distinct, each to be preserved under its own sphere of
authority. When Congress creates a court and delimits its jurisdiction, the procedure for which its jurisdiction is exercised is
fixed by the Court through the rules it promulgates. The first paragraph of Section 14, RA 6770 is not a jurisdiction-vesting
provision, as the Ombudsman misconceives,[227] because it does not define, prescribe, and apportion the subject matter jurisdiction of
courts to act on certiorari cases; the certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of BP 129
which were not shown to have been repealed. Instead, through this provision, Congress interfered with a provisional remedy that
was created by this Court under its duly promulgated rules of procedure, which utility is both integral and inherent to every
court's exercise of judicial power. Without the Court's consent to the proscription, as may be manifested by an adoption of
the same as part of the rules of procedure through an administrative circular issued therefor, there thus, stands to be a
violation of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting provisional injunctions, such as in the first paragraph of
Section 14, RA 6770, does not only undermine the constitutional allocation of powers; it also practically dilutes a court's ability to
carry out its functions. This is so since a particular case can easily be mooted by supervening events if no provisional
injunctive relief is extended while the court is hearing the same. Accordingly, the court's acquired jurisdiction, through which it
exercises its judicial power, is rendered nugatory. Indeed, the force of judicial power, especially under the present Constitution, cannot
be enervated due to a court's inability to regulate what occurs during a proceeding's course. As earlier intimated, when jurisdiction over
the subject matter is accorded by law and has been acquired by a court, its exercise thereof should be undipped. To give true meaning
to the judicial power contemplated by the Framers of our Constitution, the Court's duly promulgated rules of procedure should therefore
remain unabridged, this, even by statute. Truth be told, the policy against provisional injunctive writs in whatever variant should only
subsist under rules of procedure duly promulgated by the Court given its sole prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) and the Acting Solicitor General
Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors the foregoing observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?

ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under the rubric of what is called provisional
remedies, our resident expert because Justice Peralta is not here so Justice Bersamin for a while. So provisional remedy you have
injunction, x x x.

xxxx

JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the Constitution, if you have a copy of the
Constitution, can you please read that provision? Section 5, Article VIII the Judiciary subparagraph 5, would you kindly read that
provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts..."

JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all courts. This is the power, the
competence, the jurisdiction of what constitutional organ?

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been discussed with you by my other
colleagues, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in an ordinary case?

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be rendered moot and academic, is that not
correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.

JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the supplemental pleading called the bill of t
particular [s]? It cannot, because that's part of procedure...
ACTING SOLICITOR GENERAL HILBAY:
That is true.

JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct.

JUSTICE LEONEN:
So what's different with the writ of injunction?

ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that was created by Congress. In the absence
of jurisdiction... (interrupted)

JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special agrarian court it has all procedures with it
but it does not attach particularly to that particular court, is that not correct?

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A rule of procedure and the Rules of
Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a particular injunction in a court, is that not
correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx[228] (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010,[229] the Court instructed that "[i]t is through the Constitution that the fundamental
powers of government are established, limited and defined, and by which these powers are distributed among the several departments.
The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest
officials of the land, must defer." It would then follow that laws that do not conform to the Constitution shall be stricken down for being
unconstitutional.[230]

However, despite the ostensible breach of the separation of powers principle, the Court is not oblivious to the policy considerations
behind the first paragraph of Section 14, RA 6770, as well as other statutory provisions of similar import. Thus, pending deliberation on
whether or not to adopt the same, the Court, under its sole prerogative and authority over all matters of procedure, deems it proper to
declare as ineffective the prohibition against courts other than the Supreme Court from issuing provisional injunctive writs to enjoin
investigations conducted by the Office of the Ombudsman, until it is adopted as part of the rules of procedure through an administrative
circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first paragraph of Section 14, RA 6770) without the
Court's consent thereto, it remains that the CA had the authority to issue the questioned injunctive writs enjoining the implementation of
the preventive suspension order against Binay, Jr. At the risk of belaboring the point, these issuances were merely ancillary to the
exercise of the CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP 129, as amended, and which it had already
acquired over the main CA-G.R. SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction in issuing the TRO and WPI in CA-
G.R. SP No. 139453 against the preventive suspension order is a persisting objection to the validity of said injunctive writs. For its
proper analysis, the Court first provides the context of the assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive suspension order.

By nature, a preventive suspension order is not a penalty but only a preventive measure. In Quimbo v. Acting Ombudsman
Gervacio,[231] the Court explained the distinction, stating that its purpose is to prevent the official to be suspended from using his
position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be
vital in the prosecution of the case against him:

Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The
distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be
achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of
the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to
influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after
such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal,
then he is suspended, removed or dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing
Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive
measure. (Emphasis supplied)
Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of
suspension. So Section 25 of the same Rule XIV provides:
Section 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be
considered part of the actual penalty of suspension imposed upon the employee found guilty.[232] (Emphases supplied)

The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA 6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6)
months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided. (Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance of an order of preventive suspension
pending an investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against him.[233]

B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the Ombudsman's non-compliance with the
requisites provided in Section 24, RA 6770 was not the basis for the issuance of the assailed injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based on the case of Governor Garcia, Jr.
v. CA[234] (Governor Garcia, Jr.), wherein the Court emphasized that "if it were established in the CA that the acts subject of the
administrative complaint were indeed committed during petitioner [Garcia's] prior term, then, following settled jurisprudence, he can no
longer be administratively charged."[235] Thus, the Court, contemplating the application of the condonation doctrine, among others,
cautioned, in the said case, that "it would have been more prudent for [the appellate court] to have, at the very least, on account of the
extreme urgency of the matter and the seriousness of the issues raised in the certiorari petition, issued a TRO x x x"[236] during the
pendency of the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was based on the condonation doctrine,
citing the case of Aguinaldo v. Santos[237] The CA held that Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the
nullification of the preventive suspension order, finding that the Ombudsman can hardly impose preventive suspension against Binay,
Jr. given that his re-election in 2013 as City Mayor of Makati condoned any administrative liability arising from anomalous activities
relative to the Makati Parking Building project from 2007 to 2013.[238] Moreover, the CA observed that although there were acts which
were apparently committed by Binay, Jr. beyond his first term , i.e., the alleged payments on July 3, 4, and 24, 2013,[239] corresponding
to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima
v. Guingona, Jr.,[240] and Mayor Garcia v. Mojica,[241] wherein the condonation dobtrine was applied by the Court although the
payments were made after the official's election, reasoning that the payments were merely effected pursuant to contracts executed
before said re-election.[242]

The Ombudsman contends that it was inappropriate for the CA to have considered the condonation doctrine since it was a matter of
defense which should have been raised and passed upon by her office during the administrative disciplinary proceedings.[243] However,
the Court agrees with the CA that it was not precluded from considering the same given that it was material to the propriety of according
provisional injunctive relief in conformity with the ruling in Governor Garcia, Jr., which was the subsisting jurisprudence at that time.
Thus, since condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,[244] the CA did not err in passing upon
the same. Note that although Binay, Jr. secondarily argued that the evidence of guilt against him was not strong in his petition in CA-
G.R. SP No. 139453,[245] it appears that the CA found that the application of the condonation doctrine was already sufficient to enjoin
the implementation of the preventive suspension order. Again, there is nothing aberrant with this since, as remarked in the same case
of Governor Garcia, Jr., if it was established that the acts subject of the administrative complaint were indeed committed during Binay,
Jr.'s prior term, then, following the condonation doctrine, he can no longer be administratively charged. In other words, with condonation
having been invoked by Binay, Jr. as an exculpatory affirmative defense at the onset, the CA deemed it unnecessary to determine if the
evidence of guilt against him was strong, at least for the purpose of issuing the subject injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Court now proceeds to determine if the
CA gravely abused its discretion in applying the condonation doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or implied forgiveness of an offense, [especially] by treating
the offender as if there had been no offense."[246]

The condonation doctrine - which connotes this same sense of complete extinguishment of liability as will be herein elaborated upon - is
not based on statutory law. It is a jurisprudential creation that originated from the 1959 case of Pascual v. Hon. Provincial Board of
Nueva Ecija,[247] (Pascual), which was therefore decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija, sometime in November 1951, and was later
re-elected to the same position in 1955. During his second term, or on October 6, 1956, the Acting Provincial Governor
filed administrative charges before the Provincial Board of Nueva Ecija against him for grave abuse of authority and usurpation of
judicial functions for acting on a criminal complaint in Criminal Case No. 3556 on December 18 and 20, 1954. In defense, Arturo
Pascual argued that he cannot be made liable for the acts charged against him since they were committed during his previous term of
office, and therefore, invalid grounds for disciplining him during his second term. The Provincial Board, as well as the Court of First
Instance of Nueva Ecija, later decided against Arturo Pascual, and when the case reached this Court on appeal, it recognized that the
controversy posed a novel issue - that is, whether or not an elective official may be disciplined for a wrongful act committed by him
during his immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to American authorities and "found that
cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a
divergence of views with respect to the question of whether the subsequent election or appointment condones the prior
misconduct."[248] Without going into the variables of these conflicting views and cases, it proceeded to state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove one from office because of
misconduct during a prior term, to which we fully subscribe.[249] (Emphasis and underscoring supplied)

The conclusion is at once problematic since this Court has now uncovered that there is really no established weight of authority in the
United States (US) favoring the doctrine of condonation, which, in the words of Pascual, theorizes that an official's re-election denies
the right to remove him from office due to a misconduct during a prior term. In fact, as pointed out during the oral arguments of this
case, at least seventeen (17) states in the US have abandoned the condonation doctrine.[250] The Ombudsman aptly cites several
rulings of various US State courts, as well as literature published on the matter, to demonstrate the fact that the doctrine is not uniformly
applied across all state jurisdictions. Indeed, the treatment is nuanced:

(1) For one, it has been widely recognized that the propriety of removing a public officer from his current term or office for misconduct
which he allegedly committed in a prior term of office is governed by the language of the statute or constitutional provision applicable to
the facts of a particular case (see In Re Removal of Member of Council Coppola).[251] As an example, a Texas statute, on the one hand,
expressly allows removal only for an act committed during a present term: "no officer shall be prosecuted or removed from office for any
act he may have committed prior to his election to office" (see State ex rel. Rowlings v. Loomis).[252] On the other hand, the Supreme
Court of Oklahoma allows removal from office for "acts of commission, omission, or neglect committed, done or omitted during a
previous or preceding term of office" (see State v. Bailey)[253] Meanwhile, in some states where the removal statute is silent or unclear,
the case's resolution was contingent upon the interpretation of the phrase "in office." On one end, the Supreme Court of Ohio strictly
construed a removal statute containing the phrase "misfeasance of malfeasance in office" and thereby declared that, in the absence of
clear legislative language making, the word "office" must be limited to the single term during which the offense charged against the
public officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga County)[254] Similarly, the Common Pleas Court of
Allegheny County, Pennsylvania decided that the phrase "in office" in its state constitution was a time limitation with regard to the
grounds of removal, so that an officer could not be removed for misbehaviour which occurred; prior to the taking of the office
(see Commonwealth v. Rudman)[255] The opposite was construed in the Supreme Court of Louisiana which took the view that an
officer's inability to hold an office resulted from the commission of certain offenses, and at once rendered him unfit to continue in office,
adding the fact that the officer had been re-elected did not condone or purge the offense (see State ex rel. Billon v. Bourgeois).[256] Also,
in the Supreme Court of New York, Apellate Division, Fourth Department, the court construed the words "in office" to refer not to a
particular term of office but to an entire tenure; it stated that the whole purpose of the legislature in enacting the statute in question
could easily be lost sight of, and the intent of the law-making body be thwarted, if an unworthy official could not be removed during one
term for misconduct for a previous one (Newman v. Strobel).[257]

(2) For another, condonation depended on whether or not the public officer was a successor in the same office for which he has been
administratively charged. The "own-successor theory," which is recognized in numerous States as an exception to condonation
doctrine, is premised on the idea that each term of a re-elected incumbent is not taken as separate and distinct, but rather, regarded as
one continuous term of office. Thus, infractions committed in a previous term are grounds for removal because a re-elected incumbent
has no prior term to speak of[258] (see Attorney-General v. Tufts;[259] State v. Welsh;[260] Hawkins v. Common Council of Grand Rapids;
[261]
Territory v. Sanches;[262] and Tibbs v. City of Atlanta).[263]

(3) Furthermore, some State courts took into consideration the continuing nature of an offense in cases where the condonation doctrine
was invoked. In State ex rel. Douglas v. Megaarden,[264] the public officer charged with malversation of public funds was denied the
defense of condonation by the Supreme Court of Minnesota, observing that "the large sums of money illegally collected during the
previous years are still retained by him." In State ex rel. Beck v. Harvey[265] the Supreme Court of Kansas ruled that "there is no
necessity" of applying the condonation doctrine since "the misconduct continued in the present term of office[;] [thus] there was a duty
upon defendant to restore this money on demand of the county commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,
[266]
the Supreme Court of Kansas held that "insofar as nondelivery and excessive prices are concerned, x x x there remains a
continuing duty on the part of the defendant to make restitution to the country x x x, this duty extends into the present term, and neglect
to discharge it constitutes misconduct."

Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a "weight of authority" in the US on
the condonation doctrine. In fact, without any cogent exegesis to show that Pascual had accounted for the numerous factors relevant to
the debate on condonation, an outright adoption of the doctrine in this jurisdiction would not have been proper.

At any rate, these US cases are only of persuasive value in the process of this Court's decision-making. "[They] are not relied upon as
precedents, but as guides of interpretation."[267] Therefore, the ultimate analysis is on whether or not the condonation doctrine, as
espoused in Pascual, and carried over in numerous cases after, can be held up against prevailing legal norms. Note that the doctrine
of stare decisis does not preclude this Court from revisiting existing doctrine. As adjudged in the case of Belgica, the stare decisis rule
should not operate when there are powerful countervailing considerations against its application.[268] In other words, stare decisis
becomes an intractable rule only when circumstances exist to preclude reversal of standing precedent.[269] As the Ombudsman correctly
points out, jurisprudence, after all, is not a rigid, atemporal abstraction; it is an organic creature that develops and devolves along with
the society within which it thrives.[270] In the words of a recent US Supreme Court Decision, "[w]hat we can decide, we can undecide."[271]

In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the legal landscape has radically shifted.
Again, Pascual was a 1959 case decided under the 1935 Constitution, which dated provisions do not reflect the experience of the
Filipino People under the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of course, the sheer impact
of the condonation doctrine on public accountability, calls for Pascual's judicious re-examination.

D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer was elected for each term is separate and
distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is
especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from
office, and disqualification from holding office for the term for which the officer was elected or appointed. (67 C.J.S. p. 248,
citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d.
237; Board of Com'rs of Kingfisher County vs. Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs.
Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.[272]

Second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting the right to remove him
therefor; and

[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to
remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.[273] (emphasis
supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and character of candidates, of their right to elect
officers:

As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —
The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the
people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this
with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty
of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. [274] (Emphases
supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova[275] (May 17, 1966) - wherein the Court first applied the condonation doctrine, thereby quoting the above-
stated passages from Pascual in verbatim.

(2) Insco v. Sanchez, et al.[276] (December 18, 1967) - wherein the Court clarified that the condonation doctrine does not apply to a
criminal case. It was explained that a criminal case is different from an administrative case in that the former involves the People of the
Philippines as a community, and is a public wrong to the State at large; whereas, in the latter, only the populace of the constituency he
serves is affected. In addition, the Court noted that it is only the President who may pardon a criminal offense.

(3) Aguinaldo v. Santos[277] (Aguinaldo; August 21, 1992) - a case decided under the 1987 Constitution wherein the condonation
doctrine was applied in favor of then Cagayan Governor Rodolfo E. Aguinaldo although his re-election merely supervened the
pendency of, the proceedings.

(4) Salalima v. Guinsona, Jr.[278] (Salalima; May 22, 1996) -wherein the Court reinforced the condonation doctrine by stating that
the same is justified by "sound public policy." According to the Court, condonation prevented the elective official from being
"hounded" by administrative cases filed by his "political enemies" during a new term, for which he has to defend himself "to the
detriment of public service." Also, the Court mentioned that the administrative liability condoned by re-election covered the execution of
the contract and the incidents related therewith.[279]

(5) Mayor Garcia v. Mojica[280] (Mayor Garcia; September 10, 1999) - wherein the benefit of the doctrine was extended to then Cebu
City Mayor Alvin B. Garcia who was administratively charged for his involvement in an anomalous contract for the supply of asphalt for
Cebu City, executed only four (4) days before the upcoming elections. The Court ruled that notwithstanding the timing of the contract's
execution, the electorate is presumed to have known the petitioner's background and character, including his past misconduct; hence,
his subsequent re-election was deemed a condonation of his prior transgressions. More importantly, the Court held that the
determinative time element in applying the condonation doctrine should be the time when the contract was perfected; this meant that
as long as the contract was entered into during a prior term, acts which were done to implement the same, even if done
during a succeeding term, do not negate the application of the condonation doctrine in favor of the elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman[281] (Salumbides, Jr.; April 23, 2010) - wherein the Court explained the doctrinal
innovations in the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The condonation rule was applied even if the
administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred
four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as
long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further
distinguish, as long as the wrongdoing that gave rise to the public official's culpability was committed prior to the date of reelection.
[282]
(Emphasis supplied)

The Court, citing Civil Service Commission v. Sojor,[283] also clarified that the condonation doctrine would not apply to appointive
officials since, as to them, there is no sovereign will to disenfranchise.

(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked that it would have been prudent for the
appellate court therein to have issued a temporary restraining order against the implementation of a preventive suspension order
issued by the Ombudsman in view of the condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. - all cited by
the CA to justify its March 16, 2015 and April 6, 2015 Resolutions directing the issuance of the assailed injunctive writs - would show
that the basis for condonation under the prevailing constitutional and statutory framework was never accounted for. What remains
apparent from the text of these cases is that the basis for condonation, as jurisprudential doctrine, was - and still remains - the above-
cited postulates of Pascual, which was lifted from rulings of US courts where condonation was amply supported by their own state laws.
With respect to its applicability to administrative cases, the core premise of condonation - that is, an elective official's re-election cuts qff
the right to remove him for an administrative offense committed during a prior term - was adopted hook, line, and sinker in our
jurisprudence largely because the legality of that doctrine was never tested against existing legal norms. As in the US, the propriety of
condonation is - as it should be -dependent on the legal foundation of the adjudicating jurisdiction. Hence, the Court undertakes an
examination of our current laws in order to determine if there is legal basis for the continued application of the doctrine of condonation.

The foundation of our entire legal system is the Constitution. It is the supreme law of the land;[284] thus, the unbending rule is that every
statute should be read in light of the Constitution.[285] Likewise, the Constitution is a framework of a workable government; hence, its
interpretation must take into account the complexities, realities, and politics attendant to the operation of the political branches of
government.[286]

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the context of the 1935 Constitution
which was silent with respect to public accountability, or of the nature of public office being a public trust. The provision in the 1935
Constitution that comes closest in dealing with public office is Section 2, Article II which states that "[t]he defense of the State is a prime
duty of government, and in the fulfillment of this duty all citizens may be required by law to render personal military or civil
service."[287] Perhaps owing to the 1935 Constitution's silence on public accountability, and considering the dearth of jurisprudential
rulings on the matter, as well as the variance in the policy considerations, there was no glaring objection confronting the Pascual Court
in adopting the condonation doctrine that originated from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a significant change. The new charter
introduced an entire article on accountability of public officers, found in Article XIII. Section 1 thereof positively recognized,
acknowledged, and declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and employees shall serve with
the highest degree of responsibility, integrity, loyalty and efficiency, and shall remain accountable to the people."

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987 Constitution, which sets forth in
the Declaration of Principles and State Policies in Article II that "[t]he State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption."[288] Learning how unbridled power could corrupt
public servants under the regime of a dictator, the Framers put primacy on the integrity of the public service by declaring it as a
constitutional principle and a State policy. More significantly, the 1987 Constitution strengthened and solidified what has been first
proclaimed in the 1973 Constitution by commanding public officers to be accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is a public trust," is an
overarching reminder that every instrumentality of government should exercise their official functions only in accordance with the
principles of the Constitution which embodies the parameters of the people's trust. The notion of a public trust connotes
accountability x x x.[289] (Emphasis supplied)

The same mandate is found in the Revised Administrative Code under the section of the Civil Service Commission,[290] and also, in the
Code of Conduct and Ethical Standards for Public Officials and Employees.[291]

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local official from office are
stated in Section 60 of Republic Act No. 7160,[292] otherwise known as the "Local Government Code of 1991" (LGC), which was
approved on October 10 1991, and took effect on January 1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or removed from office on any of
the r following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan,
sangguniang panlunsod, sanggunian bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a result of an administrative
case shall be disqualified from running for any elective local position:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

xxxx

(b) Those removed from office as a result of an administrative case;

x x x x (Emphasis supplied)

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from service carries the accessory
penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement benefits, perpetual
disqualification from holding public office, and bar from taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the unexpired term of the elective local
official nor constitute a bar to his candidacy for as long as he meets the qualifications required for the office. Note, however, that the
provision only pertains to the duration of the penalty and its effect on the official's candidacy. Nothing therein states that the
administrative liability therefor is extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. - x x x.

xxxx

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every
administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the
qualifications required for the office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the conclusion that the doctrine of
condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of accountability to the people at all
times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local official's administrative
liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or
even another elective post. Election is not a mode of condoning an administrative offense, and there is simply no constitutional or
statutory basis in our jurisdiction to support the notion that an official elected for a different term is fully absolved of any administrative
liability arising from an offense done during a prior term. In this jurisdiction, liability arising from administrative offenses may be
condoned bv the President in light of Section 19, Article VII of the 1987 Constitution which was interpreted in Llamas v. Orbos[293] to
apply to administrative offenses:

The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole
exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be
unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution.
Following petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not
necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason why the President cannot grant executive clemency in
administrative cases. It is Our considered view that if the President can grant reprieves, commutations and pardons, and remit fines and
forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less
serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein cannot anymore be invoked
against an elective local official to hold him administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC
precludes condonation since in the first place, an elective local official who is meted with the penalty of removal could not be re-elected
to an elective local position due to a direct disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes a penalty of perpetual disqualification from holding public office as an accessory to the penalty of dismissal from service.

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the doctrine of condonation of
administrative liability was supported by either a constitutional or statutory provision stating, in effect, that an officer cannot
be removed by a misconduct committed during a previous term,[294] or that the disqualification to hold the office does not extend
beyond the term in which the official's delinquency occurred. [295] In one case,[296] the absence of a provision against the re-election
of an officer removed - unlike Section 40 (b) of the LGC-was the justification behind condonation. In another case,[297] it was deemed
that condonation through re-election was a policy under their constitution - which adoption in this jurisdiction runs counter to our
present Constitution's requirements on public accountability. There was even one case where the doctrine of condonation was not
adjudicated upon but only invoked by a party as a ground;[298] while in another case, which was not reported in full in the official series,
the crux of the disposition was that the evidence of a prior irregularity in no way pertained to the charge at issue and therefore, was
deemed to be incompetent.[299] Hence, owing to either their variance or inapplicability, none of these cases can be used as basis for the
continued adoption of the condonation doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the unexpired portion of the
elective local official's prior term, and likewise allows said official to still run for re-election This treatment is similar to People ex rel
Bagshaw v. Thompson[300] and Montgomery v. Novell[301] both cited in Pascual, wherein it was ruled that an officer cannot
be suspended for a misconduct committed during a prior term. However, as previously stated, nothing in Section 66 (b) states that the
elective local official's administrative liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually
supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts would be depriving the electorate of their
right to elect their officers if condonation were not to be sanctioned. In political law, election pertains to the process by which a particular
constituency chooses an individual to hold a public office. In this jurisdiction, there is, again, no legal basis to conclude that election
automatically implies condonation. Neither is there any legal basis to say that every democratic and republican state has an inherent
regime of condonation. If condonation of an elective official's administrative liability would perhaps, be allowed in this jurisdiction, then
the same should have been provided by law under our governing legal mechanisms. May it be at the time of Pascual or at present, by
no means has it been shown that such a law, whether in a constitutional or statutory provision, exists. Therefore, inferring from this
manifest absence, it cannot be said that the electorate's will has been abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are assumed to have done so with
knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. Suffice it
to state that no such presumption exists in any statute or procedural rule.[302] Besides, it is contrary to human experience that the
electorate would have full knowledge of a public official's misdeeds. The Ombudsman correctly points out the reality that most corrupt
acts by public officers are shrouded in secrecy, and concealed from the public. Misconduct committed by an elective official is
easily covered up, and is almost always unknown to the electorate when they cast their votes.[303] At a conceptual level,
condonation presupposes that the condoner has actual knowledge of what is to be condoned. Thus, there could be no condonation
of an act that is unknown. As observed in Walsh v. City Council of Trenton[304] decided by the New Jersey Supreme Court:

Many of the cases holding that re-election of a public official prevents his removal for acts done in a preceding term of office are
reasoned out on the theory of condonation. We cannot subscribe to that theory because condonation, implying as it does forgiveness,
connotes knowledge and in the absence of knowledge there can be no condonation. One cannot forgive something of which one has
no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this jurisdiction. As can be seen from
this discourse, it was a doctrine adopted from one class of US rulings way back in 1959 and thus, out of touch from - and now rendered
obsolete by - the current legal regime. In consequence, it is high time for this Court to abandon the condonation doctrine that originated
from Pascual, and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia,
Jr. which were all relied upon by the CA.

It should, however, be clarified that this Court's abandonment of the condonation doctrine should be prospective in application for the
reason that judicial decisions applying or interpreting the laws or the Constitution, until reversed, shall form part of the legal system of
the Philippines.[305] Unto this Court devolves the sole authority to interpret what the Constitution means, and all persons are bound to
follow its interpretation. As explained in De Castro v. Judicial Bar Council.[306]

Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned, necessarily become, to the extent
that they are applicable, the criteria that must control the actuations, not only of those called upon to abide by them, but also of those
duty-bound to enforce obedience to them.[307]

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule, recognized as "good law" prior to its
abandonment. Consequently, the people's reliance thereupon should be respected. The landmark case on this matter is People v.
Jabinal,[308] wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and
should not apply to parties who had relied on the old doctrine and acted on the faith thereof.

Later, in Spouses Benzonan v. CA,[309] it was further elaborated:

[P]ursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines." But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil
Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal
maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence,
is unconstitutional.[310]

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its ensuing course. Thus, while it is
truly perplexing to think that a doctrine which is barren of legal anchorage was able to endure in our jurisprudence for a considerable
length of time, this Court, under a new membership, takes up the cudgels and now abandons the condonation doctrine.

E. Consequence of ruling.

As for this section of the Decision, the issue to be resolved is whether or not the CA committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed injunctive writs.

It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a
capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be so patent
and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.[311] It has
also been held that "grave abuse of discretion arises when a lower court or tribunal patently violates the Constitution, the law
or existing jurisprudence."[312]

As earlier established, records disclose that the CA's resolutions directing the issuance of the assailed injunctive writs were all hinged
on cases enunciating the condonation doctrine. To recount, the March 16, 2015 Resolution directing the issuance of the subject TRO
was based on the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the subject WPI was based
on the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely following settled precedents on
the condonation doctrine, which at that time, unwittingly remained "good law," it cannot be concluded that the CA committed a grave
abuse of discretion based on its legal attribution above. Accordingly, the WPI against the Ombudsman's preventive suspension order
was correctly issued.

With this, the ensuing course of action should have been for the CA to resolve the main petition for certiorari in CA-G.R. SP No.
139453 on the merits. However, considering that the Ombudsman, on October 9, 2015, had already found Binay, Jr. administratively
liable and imposed upon him the penalty of dismissal, which carries the accessory penalty of perpetual disqualification from holding
public office, for the present administrative charges against him, the said CA petition appears to have been mooted.[313] As initially
intimated, the preventive suspension order is only an ancillary issuance that, at its core, serves the purpose of assisting the Office of
the Ombudsman in its investigation. It therefore has no more purpose - and perforce, dissolves - upon the termination of the office's
process of investigation in the instant administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the validity of the preventive suspension
order subject of this case does not preclude any of its foregoing determinations, particularly, its abandonment of the condonation
doctrine. As explained in Belgica, '"the moot and academic principle' is not a magical formula that can automatically dissuade the Court
in resolving a case. The Court will decide cases, otherwise moot, if: first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review."[314] All of these scenarios obtain in this case:

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were not to abandon the condonation
doctrine now that its infirmities have become apparent. As extensively discussed, the continued application of the condonation doctrine
is simply impermissible under the auspices of the present Constitution which explicitly mandates that public office is a public trust and
that public officials shall be accountable to the people at all times.

Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense of elective officials to escape
administrative liability. It is the first time that the legal intricacies of this doctrine have been brought to light; thus, this is a situation of
exceptional character which this Court must ultimately resolve. Further, since the doctrine has served as a perennial obstacle against
exacting public accountability from the multitude of elective local officials throughout the years, it is indubitable that paramount public
interest is involved.

Third, the issue on the validity of the condonation doctrine clearly requires the formulation of controlling principles to guide the bench,
the bar, and the public. The issue does not only involve an in-depth exegesis of administrative law principles, but also puts to the
forefront of legal discourse the potency of the accountability provisions of the 1987 Constitution. The Court owes it to the bench, the
bar, and the public to explain how this controversial doctrine came about, and now, its reasons for abandoning the same in view of its
relevance on the parameters of public office.

And fourth, the defense of condonation has been consistently invoked by elective local officials against the administrative charges filed
against them. To provide a sample size, the Ombudsman has informed the Court that "for the period of July 2013 to December 2014
alone, 85 cases from the Luzon Office and 24 cases from the Central Office were dismissed on the ground of condonation. Thus, in just
one and a half years, over a hundred cases of alleged misconduct - involving infractions such as dishonesty, oppression, gross neglect
of duty and grave misconduct - were placed beyond the reach of the Ombudsman's investigatory and prosecutorial
powers."[315] Evidently, this fortifies the finding that the case is capable of repetition and must therefore, not evade review.

In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As mentioned, it is its own jurisprudential
creation and may therefore, pursuant to its mandate to uphold and defend the Constitution, revoke it notwithstanding supervening
events that render the subject of discussion moot.

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the final issue on whether or not the CA's
Resolution[316] dated March 20, 2015 directing the Ombudsman to comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No.
139504 is improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot be the subject of a charge for indirect
contempt[317] because this action is criminal in nature and the penalty therefor would result in her effective removal from office.
[318]
However, a reading of the aforesaid March 20, 2015 Resolution does not show that she has already been subjected to
contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding the directive for the Ombudsman to comment, the
CA has not necessarily given due course to Binay, Jr.'s contempt petition:

Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita Carpio Morales, in her capacity as
the Ombudsman, and the Department of Interior and Local Government] are hereby DIRECTED to file Comment on the
Petition/Amended and Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an inextendible period of three (3) days
from receipt hereof. (Emphasis and underscoring supplied)

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she may properly raise her objections to the
contempt proceedings by virtue of her being an impeachable officer, the CA, in the exercise of its sound judicial discretion, may still opt
not to give due course to Binay, Jr.'s contempt petition and accordingly, dismiss the same. Sjmply put, absent any indication that the
contempt petition has been given due course by the CA, it would then be premature for this Court to rule on the issue. The submission
of the Ombudsman on this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court resolves as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL, while the policy against the
issuance of provisional injunctive writs by courts other than the Supreme Court to enjoin an investigation conducted by the Office of the
Ombudsman under the first paragraph of the said provision is DECLARED ineffective until the Court adopts the same as part of the
rules of procedure through an administrative circular duly issued therefor;

(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in effect;

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) petition for certiorari in CA-
G.R. SP No. 139453 in light of the Office of the Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding
Binay, Jr. administratively liable in the six (6) administrative complamts, docketed as OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-
15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA is DIRECTED to resolve Binay, Jr.'s petition
for contempt in CA-G.R. SP No. 139504 with utmost dispatch.

SO ORDERED.

Sereno, C.J. Carpio, Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez, Reyes, and Leonen, JJ., concur.
Bersamin, J., please see my concurring & dissenting opinion.
Velasco, Jr., Peralta, and Jardeleza, JJ., no part.
Brion, J., no part/ on leave.
Mendoza, J., on leave.

- De Jesus vs. Garcia 19 SCRA 554

G.R. No. L-26816 February 28, 1967

PABLO DE JESUS, ENGRACIA DE JESUS and MANUELA DE JESUS, petitioners, vs.

HON. GREGORIO N. GARCIA, Judge of the City Court of Manila, Branch I
THE SHELL COMPANY OF THE PHILIPPINES, LTD., MAXIMA DE Jesus and SALVADOR
BARRIOS, respondents.

Feria, Feria, Lugto & La'O for petitioners.

Salvador Barrios for respondents.

SANCHEZ, J.:

Before us upon an original action of certiorari and prohibition, are two jurisdictional issues: first, jurisdiction over the
subject matter; and second, the power of the City Court of Manila to issue a writ of preliminary or final injunction —
upon the factual averments hereinafter to be recited. The problem cropped up because petitioners' motion to
dismiss the complaint and to dissolve the writ of preliminary injunction upon the above grounds, in that case filed by
principal individual respondents against them in the city court, 1 was denied, and their motion to reconsider rejected.
The pivotal disputed allegations of the verified complaint below are these: Ten persons, 2 among whom are
petitioners and respondent, Maxima de Jesus, are co-owners of six (6) parcels of land running along España P.
Campa and Adelina Streets in Sampaloc, Manila. Administratrix thereof and co-owners attorney-in-fact is Maxima
de Jesus. Her stipulated compensation is 10% of the rentals. The monthly receipts signed by each co-owner, for
his/her rental share, is in a form reproduced in the complaint as follows:

RECEIVED from Mrs. Maxima de Jesus Barrios the sum of .................. as my share, in the rental collected
for this month, on the properties of which I am a co-owner. Ten per cent (10%) of said rentals had been
previously deducted as agreed upon by me, for her administration fee together with her expenses
concerning a collector and an Attorney that she may employ to INCREASE rate, prevent arrears, and eject
stubborn tenant.1äwphï1.ñët

Lessee of the property is Shell Company of the Philippines, Ltd. The original lease contract was dated August 23
and 29, 1953. This lease was renewed by instrument executed on January 10, 1966, where under, through the
efforts of Maxima de Jesus, the monthly rentals were increased from P850.00 to P3,500.00 during the first ten (10)
years and to P4,000.00 for the subsequent five (5) years. Shell pays the rentals by issuing a check for P3,500.00 in
the name of Maxima de Jesus who, in turn, distributes the shares of her co-owners. Petitioners' monthly shares on
the basis of P3,500.00 monthly rentals are:

Manuela de Jesus 9/54 of P3,500.00 — P 583.33

Pablo de Jesus 9/54 of P3,500.00 — P 583.33
Engracia de Jesus 10/54 of P3,500.00 — P 684.14

P1,850.80

Petitioners (defendants below), in October, 1966 — so the complaint further avers — sought to unjustly deprive
Maxima de Jesus of her 10% compensation. And, to fraudulently escape such obligation, they surreptitiously
instructed Shell not to pay their share in the rentals through said Maxima de Jesus but directly to them.

As against Shell, the complaint states:

... Pero ahora la compania demandada esta vacilando si va a cambiar esa FORMA DE PAGO, para seguir
dicho aviso de los 3 demandados individuales, de que ella pague directamente a ellos sus "shares" de
P1,850.80 mensuales dejando a la demandante fraudulentamente privada y despojada de su 10% de
compensacion que asciende a P185.08 mensuales.

The complaint winds up with the prayer:

POR TANTO, pedimos respetuosamente al Hon. Juzgado se sirva expedir una inmediata orden de
interdicto prohibitorio preliminar a la pagadora compañia demandada, para que se abstenga de cambiar la
presente FORMA DE PAGO, ...; y, despues de los tramites judiciales correspondientes, que el Hon.
Juzgado se sirva dictar sentencia declarando definitivo el mismo interdicto prohibitorio, y condenando a los
3 demandados individuales Manuela de Jesus, Engracia de Jesus y Pablo de Jesus a pagar dicho 10% de
compensacion, deduciendolo de sus P1,850.80 de "shares" o participaciones respectivas en la renta
mensual, de acuerdo con la presents forma de pago. x x x x3

Upon the foregoing complaint filed on October 3, 1966, the respondent judge, on a P500.00-bond, issued ex-parte,
on October 4, 1966, a writ of preliminary injunction, which reads:

It is hereby ordered by the undersigned Judge of the Court of Manila City that, until further orders, you, the
said The Shell Co. of the Philippines, Ltd. and all your attorneys, representatives, agents, and any other
person assisting you, refrain from modifying the present "FORMA DE PAGO"; The Shell Co. of the
Philippines, shall pay the monthly rentals with check to be issued in the name of Maxima de Jesus alone,
who shall cash and distribute the amount of same, among the ten co-owners, previous deduction of ten per
cent (10%) thereof.

On the same date, October 4, 1966, in obedience to the writ of preliminary injunction, Shell delivered to Maxima de
Jesus the sum of P3,500.00, covering the October, 1966 rental.

The jurisdictional question having been brought direct to this Court, we issued, on application, a cease-and-desist
order bearing date of November 18, 1966.
1. As starting point, we have the rule-long in standing and frequent in application — that jurisdiction over the
subject matter is conferred only by the Constitution or law. It cannot be fixed by the will of the parties; it
cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties.
Neither is it conferred by acquiescence of the court. 4 Constitutionally viewed, apportionment of jurisdiction is
vested in Congress.5 Congress may not delegate that power.6 We may not even look to the Rules of Court in
search of jurisdiction jurisdictional boundaries. For indeed, the constitutional authority of the Supreme Court
on this point is circumscribed in the zone properly denominated as the promulgation of "rules concerning
pleading, practice, and procedure in all courts and the admission to the practice of law"; 7 and, consequently
to determine the "means, ways or manner in which said jurisdiction, as fixed by the Constitution and acts of
Congress, shall be exercised". 8 Rules of Court must yield to substantive laws 9 of which jurisdiction is a
segment. A mistake in statutory jurisdiction may not be corrected by executive fiat, "but by legislation". 10

Well may we profit from the wise pronouncement in Manila Railroad Co. vs. Attorney-General, supra, at
pages 529-530, thus: "Certain statutes confer jurisdiction, power, or authority. Others provide for the
procedure by which that power or authority is projected into judgment. The one class deals with the powers
of the court in the real and substantive sense; the other with the procedure by which such powers are put
into action. The one is the thing itself ; the other is the vehicle by which the thing is transferred from the court
to the parties. The whole purpose and object of procedure is to make the powers of the court fully and
completely available for justice. ... The purpose of such a procedure is not to restrict the jurisdiction of the
court over the subject matter, but to give it effective facility in righteous action. ..."

2. And now we come to the jurisdictional area allocated to inferior courts. A rule, the validity of which is
recognized, is that jurisdiction of an inferior court will not be presumed; "it must appear clearly from statute
or it will not be held to exist."11 Such jurisdiction cannot be broadened upon "doubtful inferences" drawn from
statutes. Absent a statutory grant, neither convenience nor assumed justice or propriety of the exercise
thereof in a particular class of cases "can justify the assumption of jurisdiction" by said courts. 12

3. Jurisprudence teaches that the averments of the complaint, taken as a whole, are what determine the
nature of the action, and therefore, the court's jurisdiction. 13

But just exactly what does Maxima de Jesus desire in her complaint below? In plain language, she asks of
the court to compel two sets of defendants to toe the line: Shell to continue with the previous manner of
payment (forma de pago) of rentals by means of a check drawn in her favor alone; and the dissenting co-
owners to pay her the 10% of the rentals as compensation to which she claims she is entitled as
administratrix of the property — per agreement. By this she hopes to pay herself, as against her defendant
co-owners, the 10% of the latter's share in the monthly rentals (P1,850.80 from October 1966, to December
31, 1975; and P2,074.07 from thence to December 31, 1980). A careful and considerate examination of the
complaint below as a whole brings to the fore the fact that plaintiff Maxima de Jesus asks that these
defendants comply faithfully with their respective commitments. Implicit, too, in the complaint is the demand
that her said co-owners recognize her as administratrix. It is in the context just recited that plaintiff's action
below comes within the concept of specific performance of contract. And in this posture, we express the
view that jurisdiction resides in the court of first instance. For, specific performance — the subject of the
litigation — "is not capable of pecuniary estimation". 14

A case with factual environment similar to the present is Manufacturer's Distributors, Inc. vs. Yu Siu Liong, L-
21285, April 29, 1966. There, plaintiff sued defendant in the City Court of Manila to accept delivery of 74,500
pieces of plastifilm bags, balance of 100,000 pieces ordered by defendant, which the latter for no justifiable
reason refused to accept. The prayer of the complaint is that defendant be ordered to pay plaintiff
P3,376.00, total value of the 100,000 pieces of plastifilm bags. Defendant moved to dismiss. Ground: The
subject matter of the litigation is "specific performance" and, therefore, within the exclusive jurisdiction of the
court of first instance. The City Court upheld defendant, dismissed the complaint. And the Court of First
Instance affirmed. Before this Coat, plaintiff contended that "the subject of the litigation was the 100,000
pieces of plastifilm bags contracted for by defendant at a total price of P3,376.00, and, therefore, it was
susceptible of pecuniary estimation". This Court, in an opinion by Mr. Justice Jose B. L. Reyes, ruled that the
City Court of Manila had no jurisdiction, and declared:

That plaintiff's complaint also sought the payment by the defendant of P3,376.00 plus interest and
attorney's fees, does not give a pecuniary estimation to the litigation, for the payment of such
amounts can only be ordered as a consequence of the specific performance primarily sought. In
other words, such payment would be but an incident or consequence of defendant's liability for
specific performance. If no such liability is judicially declared, the payment can not be awarded.
Hence, the amounts sought do not represent the value of the subject of litigation.

This Court there lifted from Mebane Cotton Breeding St'n vs. Sides, 257 SW 302; 21 C.J.S., 59, note, the
following, which is indeed illuminating:

The Court has no jurisdiction of a suit for specific performance of a contract, although the damages
alleged for its breach, if permitted, are within the amount of which that court has jurisdiction.
 It will avail respondents nothing when they say that what they seek is to prevent Maxima de Jesus from
being defrauded of her 10% compensation to only P185.08, covering the October, 1966 rental; and that
should defendants below insist in defrauding her of her share corresponding to any other month, in
respondents' language, "entonces se podra repetir igual demanda por ese mes". 15 Reasons there are which
will stop us from giving our imprimatur to this advocacy. Courts will be swamped with her complaints.
Multiplicity of suits is obnoxious to the administration of justice. Besides, the breach of contract charged
against defendants below is total and indivisible. Monthly rentals will have to run through a number of years.
There is an unqualified refusal to perform the contract. Such refusal goes to the entire contract. It is treated
as a complete breach. Therefore, but one action — specific performance — may be presented. For that
action may not be split; successive actions may not be maintained. 16 Especially is this principle true in the
case before us. For, nowhere in the complaint filed on October 3, 1966, is there an averment that at the time
jurisdiction was sought in the City Court, the October, 1966 rental was already due and payable. As a matter
of fact, in Annex 2 of respondents' answer before this Court, which is Shell's answer to the complaint below,
the following averment in paragraph 13 appears: "SHELL has to pay the monthly rentals of P3,500 within the
first ten (10) days of each contract month."

Nothing in the statute books would confer jurisdiction on city courts over actions where specific performance
of contract is primarily sought. Result: The city court has no jurisdiction over the subject matter. 17

4. Nor does the law grant the city courts power to take cognizance of a case for final injunction. On the
contrary, such authority is expressly granted by statute to courts of first instance in the exercise of their
original jurisdiction.18 And the city court is without jurisdiction to hear and determine the case for final
injunction against Shell. .

5. But let us assume that what plaintiff below claims, as against her co-owners, is but a judgment for the
small sum of P185.08, her compensation for the month of October, 1966. Nonetheless, the city court
remains without jurisdiction. This is because the sum of money action may not be divorced from the
injunction suit. Both of them are the subject of only one complaint. For, really, without a mandatory injunction
to Shell to issue the checks in plaintiff's favor, the certainty of collecting her alleged compensation becomes
problematical. The action then is indivisible. And, the city court's jurisdiction must yield to the jurisdiction of
the higher court of first instance. Expediency and convenience so demand. 19

6. Where much space was devoted by counsel for the parties herein is on the question of the power of the
city court to issue the disputed writ of preliminary injunction earlier transcribed.

Historically speaking, the 1901 original organic act of courts in the Philippines (Act 136 of the Philippine
Commission) was silent on the power of the city (Justice of the peace) court to issue preliminary injunction. Neither
did the old 1901 Code of Civil Procedure (Act 190) grant this power to said court. When a later statute, Act 2041 of
the Philippine Legislature (1911), did empower said court to issue preliminary injunction, its exercise was limited to
cases involving forcible entry. And, subsequent legislation's also carry this provision, viz: Act 2131, effective
February 1, 1912; Act 3764, effective November 26, 1930; Act 3881, effective November 14, 1931; and the present
Judiciary Act of 1948, as amended.

To be sure temporary injunctions could also be issued in cases other than forcible entry; but then only municipal
courts in provincial capitals are privileged to grant the same, and solely in the absence of the district judge. 20

In Piit vs. de Lara, 58 Phil. 765, 766-767,21 this Court was asked to rule on the question of whether a justice of the
peace may issue a writ of preliminary injunction in an illegal detainer suit. The answer was "No". Because the law
limits the issuance of such writ only to forcible entry cases. We then ruled out the preliminary injunction in the illegal
detainer case as in excess of his jurisdiction.

The strong point on which respondents herein root their argument is Section 2 of Rule 58, which reads:

SEC. 2. Who may grant preliminary injunction. — A preliminary injunction may be granted by the judge of
any court in which the action is pending, or by a Justice of the Court of Appeals or of the Supreme Court. It
may also be granted by the judge of a Court of First Instance in any action pending in an inferior court within
his district.

They place the accent on the phrase "any court in which the action is pending." Argue respondents: Since the case
is pending in the city court, it has jurisdiction to issue preliminary injunction. This ratiocination suffers from
infirmities. First, we have ruled that the city court has no jurisdiction over the subject matter; in consequence, it is
powerless to grant an ancillary remedy therein. Second, the first sentence of Section 2 should be read in context.
The last sentence of the quoted statute, namely, that injunction "may also be granted by the judge of a Court of First
Instance in any action pending in an inferior court within his district", emphasizes the point that the city court, except
in the cases where it is specifically authorized by statute, cannot grant preliminary injunction. Third, as adverted to
elsewhere in this opinion, absent an explicit and precise grant of jurisdiction in the city court, no amount of
expensive construction would give such court that jurisdiction. At any rate, the party plaintiff is not without speedy
remedy. He may seek injunctive assistance from the court of first instance.
Upon the view we take of this case, we hereby grant the petition for certiorari and prohibition; the preliminary
injunction we issued herein is declared final; and the respondent court is directed to dismiss Civil Case No. 153460,
entitled "Maxima de Jesus, asistida de su marido Salvador Barrios, Demandantes versus Manuela de Jesus,
Engracia de Jesus, Pablo de Jesus, y The Shell Company of the Philippines, Ltd., Demandados". Costs against
respondents other than the respondent judge.

So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ., concur.

- De la Rosa vs. Rolda 501 SCRA 34

G.R. No. 133882 September 5, 2006

ANGELA DELA ROSA and CORAZON MEDINA, petitioners, vs.

ORFELINA D. ROLDAN, LORNA SAN DIEGO, FLORDELIZA D. CATACUTAN, NORMA Y. LACUESTA, and
ARSENIO DULAY, respondents.

DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 45560
affirming, on a petition for review, the Decision of the Regional Trial Court (RTC) of Tarlac in Civil Case No. 8396,
which in turn reversed on appeal the decision of the Municipal Trial Court (MTC) of Tarlac, Tarlac in Civil Case No.
6089 for unlawful detainer.

The Antecedents

The spouses Adriano Rivera and Aurora Mercado were the owners of two (2) parcels of land located in Tarlac,
Tarlac, both covered by respective titles; the 261-square-meter lot was covered by Transfer Certificate of Title (TCT)
No. 7225, while the 772 sq. m. was covered by TCT No. 7226.

Sometime in 1957, the spouses Rivera executed a deed of sale 2 over the properties in favor of the spouses Arsenio
Dulay and Asuncion dela Rosa. Gideon dela Rosa, one of Asuncion's brothers, was one of the instrumental
witnesses in the deed. To pay for the property, the spouses Dulay, who were members of the Government Service
Insurance System (GSIS), secured a P9,500.00 loan and executed a real estate mortgage over the two lots as
security therefor. On September 16, 1957, the Register of Deeds issued TCT Nos. 29040 and 29041 in the names
of the spouses Dulay.

The spouses Dulay forthwith took possession of the lots, except a 500-square-meter portion which was then
occupied by Gideon dela Rosa and his wife Angela and the portion where the house of Corazon Medina stood. The
spouses Dulay declared the property for taxation purposes in their names and paid the realty taxes therefor.

Sometime in 1982, the spouses Dulay made demands on Gideon, Angela and Corazon to vacate the premises, as
their three daughters would be constructing their respective houses thereon. Gideon, Angela and Corazon refused
to do so, prompting the spouses to file a complaint for recovery of possession (accion publiciana) against them with
the then Court of First Instance (CFI) of Tarlac. The spouses Dulay alleged, inter alia, that they bought the lots from
the spouses Rivera in 1957; defendants occupied a 370-square-meter portion on the western side, and were
claiming ownership over one-half of the property, as shown by their letter to plaintiffs appended to their complaint;
and they needed the property so that their daughters, who already had their respective families, could build houses
thereon. The spouses Dulay prayed that defendants be evicted from the property and be required to pay reasonable
compensation for their use of the premises.3 The case was docketed as Civil Case No. 6261.

In their answer to the complaint, defendants alleged the following by way of special and affirmative defenses:
Gideon and his sister Asuncion contributed equally to the purchase price of the property; plaintiffs secured a GSIS
loan of P9,500.00, out of which P6,500.00 was paid to the vendors; Gideon and Asuncion verbally agreed that
plaintiffs would be indicated as the sole vendees in the deed of sale as they were the GSIS members; defendants
had already paid their share of the purchase price of the property as of 1978, except for the amount of P332.00;
and, insofar as the one-half portion on the western side of the property was concerned, plaintiffs were trustees for
defendants, who likewise owned the same. Defendants interposed counterclaims for damages and prayed that the
said one-half portion be reconveyed to them. 4

During the trial, the spouses Dulay adduced in evidence the following: the Deed of Absolute Sale dated January 16,
1957, with Gideon as an instrumental witness;5 the tax declarations in their names covering the property; and
receipts of realty tax payments made over the property. 6
Defendants spouses Dela Rosa adduced in evidence a small notebook containing therein an alleged list of
payments to the spouses Dulay of their share in the purchase price of the property. 7 They presented an NBI
Questioned Documents Expert to prove the authenticity of the signature of Asuncion Dulay on one of the
receipts.8 However, Asuncion denied that she bought the property with her brother Gideon, and that she received
any amount from him and his wife as part of the purchase price of the property. She likewise denied that it was her
signature that appeared on the purported receipt.

On July 17, 1987, the trial court rendered judgment in Civil Case No. 6261 in favor of the spouses Dulay and
ordered the spouses Dela Rosa and Corazon Medina to vacate the property and turn over possession to
plaintiffs.9 The trial court declared:

ANALYZING THE EVIDENCE, there is no doubt that the registered owners of the lots in question are the
plaintiffs-spouses Arsenio Dulay and Asuncion dela Rosa (Exhibits "A" and "B"). They bought these lots
from the spouses Adriano Rivera and Aurora Mercado (Exhibits "D" and "D-1").

Defendants' claim that they bought from the plaintiffs one-half (1/2) portion of the lots in question is
untenable. Firstly, if it is true as claimed by them that there was such an agreement to purchase from the
plaintiffs a portion of the lots in question, why did they not reduce [the] same in writing? In fact, it's the
defendants, particularly Gideon dela Rosa, who induced and accompanied the plaintiffs to go to a Notary
Public for the execution of Exhibit "D." The amounts mentioned in Exhibit "5" does (sic) not clearly indicate
whether they were payments made for the purchase price in installment or for monthly rentals for their
occupation of Lot 3-B-2. The defendants were the only ones who made entries; and a perusal of such
entries were not recorded in sequence of alleged monthly payment but merely entries dictated and/or written
at will.

Regarding Exhibit 6 and the alleged signature of plaintiff Asuncion dela Rosa, the report (Exhibit "7," "7-A"
and "7-B") and the testimony of the Chief NBI handwriting expert when presented by the defendants
themselves is very emphatic. Thus:

"However, the question signature was signed over a typewritten carbon or duplicate…."

What we mean by that, Sir, is that there is here a purported receipt with the body typewritten
underlining below the supposed signature Asuncion R. Dulay, it is a little surprising because if a
document is prepared in one occasion, then the body should be in ribbon impression and the
underlining should be in ribbon. The supposed typewritten body above the signature is an original
ribbon impression, that is, it is direct from the typewritten with the ribbon striking the sheet of paper,
the underlining, however, on which the signature is signed is a carbon impression, that means it is a
duplicate impression. (pp. 8-9, tsn., Oct. 30/85). 10

The spouses Dela Rosa and Corazon Medina appealed to the CA. The case was docketed as CA-G.R. CV No.
15455. On June 29, 1990, the appellate court rendered judgment granting the appeal and reversed the trial court's
ruling. According to the appellate court, the complaint was premature on account of plaintiffs' failure to allege, in
their complaint, that there had been earnest efforts to have the case amicably settled as mandated under Article 222
of the New Civil Code.11

The spouses Dulay filed a Motion for Extension of Time to File a Petition for Review on Certiorari with this Court
which was granted. The motion was recorded as UDK-10069. However, the spouses Dulay failed to file their
petition. Thus, on November 19, 1990, the Court resolved to declare final and executory the decision of the CA in
CA-G.R. CV No. 15455 for failure of plaintiffs-appellees to file their petition for review. 12 The resolution of the Court
became final and executory.13

In the meantime, Gideon died. His wife Angela and Corazon Medina continued residing in the property without
paying any rentals therefor. Asuncion Dulay passed away on June 26, 1995, survived by her husband Arsenio and
their children: Orfelina Roldan, Lorna San Diego, Flordeliza Catacutan, and Norma Lacuesta.

In a letter dated October 2, 1995, Arsenio and his children, through counsel, made demands on Corazon and
Angela to vacate the property within 30 days from receipt thereof, with a warning that failure to do so would impel
them to file the necessary legal action. 14 Nevertheless, they suggested a conference to discuss the amicable
settlement of the matter. Corazon and Angela ignored the letter. This prompted Arsenio and his children to file a
complaint for eviction against Angela and Corazon in the Office of the Barangay Captain. The parties did not arrive
at a settlement, and on December 1, 1995, the Pangkat Secretary issued a certification to file action. 15

On January 29, 1996, Arsenio and his children, as plaintiffs, filed a complaint for unlawful detainer against Corazon
and Angela, as defendants, in the MTC of Tarlac, Tarlac. Plaintiffs alleged the following:

3. Plaintiffs are the co-owners of two adjoining parcels of residential land located at Tarlac, Tarlac, and more
particularly described as follows:

Transfer Certificate of Title No. 29040

 "A parcel of land (Lot "B" of the subdivision plan Psd-2284, being a portion of the land described on
the original plan II-5215, G.L.R.O. Record No. 7962), situated in the Barrio of San Roque,
Municipality of Tarlac, Province of Tarlac. Bounded on the N.E., by Lot "C" of the subdivision plan;
on the S.E., by Lot No. "3-B-2" of the subdivision plan and property of Concepcion Cider; on the W.,
by property of Timotea Mercado; and on the N.W., by Lot "A" of the subdivision plan, containing an
area of TWO HUNDRED SIXTY-ONE (261) SQUARE METERS, more or less."

Transfer Certificate of Title No. 29041

"A parcel of land (Lot No. "3-B-2" of the subdivision plan Psd-2284, being a portion of Lot No. "3-B,"
plan II-2977-Amd., G.L.R.O. Record No. 1955), situated in the Barrio of San Roque, Municipality of
Tarlac, Province of Tarlac. Bounded on the N.E., by Lot 87-C of the subdivision plan; on the S.E., by
Lot No. 3-B-1 of the subdivision plan; on the S.W., by property of Concepcion Cider; and on the
N.W., by Lot B of the subdivision plan, containing an area of SEVEN HUNDRED SEVENTY-TWO
(772) SQUARE METERS, more or less."

Copies of the transfer certificates of title are attached as Annexes "A" and "B," respectively. The total
assessed value of said lands does not exceed Twenty Thousand Pesos (P20,000.00).

4. Said parcels of land were formerly owned by the spouses Asuncion dela Rosa and Arsenio Dulay.
Plaintiffs Orfelina Roldan, Lorna San Diego, Flordeliza Catacutan, and Norma Lacuesta are the children of
the spouses Asuncion dela Rosa and plaintiff Arsenio Dulay. Upon the death of Asuncion dela Rosa on 26
June 1995, said parcels of land became jointly owned by herein plaintiffs. A copy of Asuncion dela Rosa's
certificate of death is attached as Annex "C."

5. The spouses Dulay bought said parcels of land sometime in 1957. Defendants and their predecessors-in-
interest have occupied and are continuously occupying about five hundred (500) square meters, more or
less, of said parcels of land. Defendants and their predecessors-in-interest have occupied said parcels of
land since 1957 without paying any rent.

6. The occupation by defendants of said parcels of land were at the mere tolerance of the spouses Dulay
and, thereafter, of the plaintiffs. Defendants have promised to vacate the premises if and when needed by
the spouses Dulay and plaintiffs.

7. Demands were made on defendants to vacate the premises, which demands, however, were ignored and
not heeded. Defendants refused and continues to refuse to vacate the premises. A copy of the final demand
letters sent to Angela dela Rosa and Corazon Medina are attached as Annexes "D" and "E," respectively.

8. In an attempt to arrive at an amicable settlement and in recognition of their being blood relatives, plaintiffs
exerted earnest efforts towards a compromise with defendants. Defendants were invited to discuss and
settle the matter amicably. Defendants, however, refused to meet and discuss any settlement and ignored
the invitation extended by plaintiffs.

9. In compliance with Section 412 of the Local Government Code (R.A. No. 7160) and as a further attempt
to settle the dispute amicably, plaintiffs brought the matter to the lupong tagapamayapa of their barangay.
Defendants, however, refused to discuss an amicable settlement. The certification to file action issued by
the lupon chairman is attached and made an integral part hereof as Annex "F."

10. Defendants have been occupying and using the premises without paying any rent therefor. The present
reasonable rental value of the premises is Fifty Pesos (P50.00) per month, which amount defendants should
be made to pay from September 1957 until possession is restored to plaintiffs.

11. By reason of the unjustifiable refusal to vacate and the unlawful detainer of the subject property by
defendants and all persons claiming rights under them, plaintiffs were constrained to seek redress in court to
protect their own rights and interests, thereby causing them to incur litigation expenses in the amount of not
less than Fifty Thousand Pesos (P50,000.00), for which amount the defendant should be made liable to
plaintiffs.16

Plaintiffs therein prayed that, after due proceedings, judgment be rendered in their favor as follows:

WHEREFORE, premises considered, plaintiffs most respectfully pray that, after trial, judgment be rendered
by this Honorable Court in favor of plaintiffs and ordering as follows:

1. Defendants and all persons claiming rights under them to immediately vacate the premises;

2. Defendants to pay all rental arrears at the monthly rate of P50.00 from September 1957 until possession
is restored or a total of P23,000.00;
 3. Defendants to pay litigation expenses in the amount of P50,000.00; and

4. Defendants to pay the costs of this suit.

Plaintiffs pray for such other and further reliefs just and equitable under the premises. 17

The case was docketed as Civil Case No. 6089.

In their answer, defendants reiterated their allegations in their answer to the complaint in Civil Case No. 6261 in the
CFI of Tarlac.

On April 30, 1996, Angela filed a complaint against Arsenio and his children in the MTC of Tarlac, Tarlac for
recovery of ownership, reconveyance, cancellation of title, and damages. The case was docketed as Civil Case No.
6154. Angela, as plaintiff, reiterated her allegations in her answer and counterclaim in Civil Case No. 6261 as
allegations comprising her causes of action. She prayed that, after due proceedings, judgment be rendered in their
favor, thus:

WHEREFORE, it is most respectfully prayed of this Hon. Court that judgment shall issue:

1. Ordering that an immediate temporary restraining order restraining the defendants from disturbing the
possession of the Plaintiff over the property in question until the case is finally dissolved;

2. Declaring the Plaintiff as owner of the one-half (1/2) property in question, thereby reconveying the
ownership thereof and cancelling the title;

3. Ordering the defendants, jointly and severally, to pay Plaintiff the amount of P30,000.00 as attorney's fee,
plus P1,000.00 per hearing;

4. Ordering the defendants, jointly and severally, to pay Plaintiff the amount of P10,000.00 as acceptance
fee, plus P20,000.00 as litigation expenses;

5. Ordering the defendants, jointly and severally, to pay Plaintiff the amount of P20,000.00 as exemplary
damages;

6. Ordering the defendants, jointly and severally, to pay Plaintiff the amount of P10,000.00 as moral
damages;

7. And granting such other reliefs and remedies just and equitable in the premises. 18

On July 17, 1996, the MTC issued a pre-trial order in Civil Case No. 6089 defining the issue, thus:

Whether or not Unlawful Detainer is proper in the premises considering the claim of ownership by
defendants from the beginning of these litigations sometime in 1982 followed by this case at bench.
Otherwise stated, is the occupation of the land in dispute by the defendants by tolerance of plaintiffs. 19

On September 25, 1996, the MTC rendered judgment in Civil Case No. 6089 in favor of Corazon and Angela and
ordered the dismissal of the complaint on the ground of lack of jurisdiction. 20 The court held that the issue between
the parties was one of ownership and not merely possession de facto. Thus, the possession of the property by
defendants was not by mere tolerance, but by virtue of a claim of ownership; in fact, defendants never recognized
the plaintiffs' claim of ownership over the property. In ruling against Arsenio and his children, the trial court relied on
their pleadings, the decision of the CFI in Civil Case No. 6261, the ruling of the CA in CA-G.R. CV No. 15455, and
the resolution of this Court in UDK-10069. 21 It declared that, although the CA reversed the decision of the CFI in
Tarlac, the facts show that the dispute between the parties constitutes possession de jure; the action of the spouses
Dulay in Civil Case No. 6261 which was an accion publiciana cannot be converted into one for unlawful detainer in
Civil Case No. 6089.

Arsenio and his children appealed to the RTC. The case was docketed as Civil Case No. 8396. On June 25, 1997, it
reversed the decision of the MTC and ordered the eviction of defendants, holding that the issue was the entitlement
to the physical possession de facto of the property, an issue within the exclusive jurisdiction of the MTC; 22 in
contrast, the issue between the parties in Civil Case No. 6261 was possession de jure and not possession de facto.
The RTC further declared that the spouses Dulay had a torrens title over the property which was conclusive against
the whole world; as such, they were entitled to the possession of the property as owners thereof. Citing the ruling of
this Court in Peran v. Espera,23 the RTC ruled that Corazon and Angela possessed the property for a considerable
length of time only through mere tolerance of plaintiffs.

Corazon and Angela moved to reconsider the decision, which the RTC denied in an Order 24 dated September 22,
1997. They filed a petition for review in the CA, praying that the RTC decision be reversed and the decision of the
MTC be affirmed. Angela claimed that she owned one-half of the property as co-owner of the spouses Dulay. The
case was docketed as CA-G.R. SP No. 45560.

On March 16, 1998, the CA rendered judgment in CA-G.R. SP No. 45560 affirming the decision of the RTC and
dismissing the petition. The CA ruled that, contrary to the claim of Angela, there was no trust created over one-half
of the property in her favor. Since the complaint against Angela and Corazon in the MTC was one for unlawful
detainer, the MTC had exclusive jurisdiction over the case. Moreover, they had been in possession of the property
by tolerance. In any case, their action was barred by prescription and laches.

Angela and Corazon filed a motion for reconsideration, which the CA denied.

Angela and Corazon, now petitioners, filed the instant petition for review on certiorari, claiming that the CA erred as
follows:

THE HON. COURT OF APPEALS, WITH DUE RESPECT, ERRED IN CONSIDERING THAT THE CASE AT
BAR IS ONE OF UNLAWFUL DETAINER, WHEN IT IS ONE OF RECOVERY OF OWNERSHIP AND
POSSESSION.

II

THE HON. COURT OF APPEALS, WITH DUE RESPECT, ERRED IN CONSIDERING THAT THERE WAS
NO TRUST CREATED BY AGREEMENT OF THE PARTIES.

III

THE HON. COURT OF APPEALS, WITH DUE RESPECT, ERRED IN CONSIDERING THAT THE
PETITIONERS' CLAIM HAS BEEN BARRED BY PRESCRIPTION OR LACHES.

IV

THE HON. COURT OF APPEALS, WITH DUE RESPECT, ERRED IN AWARDING ATTORNEY'S FEE FOR
RESPONDENTS.25

According to petitioners, during the pre-trial in the MTC, the parties stipulated on the following issues to be resolved
by the court: whether or not the action for unlawful detainer of respondents was proper considering that petitioners
claimed ownership over the property in their answer to the complaint; and whether petitioners possessed the
property by mere tolerance of respondents. Petitioners insist that during the pre-trial conference, respondents
admitted that they had filed a complaint for recovery of possession of property against petitioners in the CFI of
Tarlac, docketed as Civil Case No. 6261.

Petitioners maintain that the principal issue is one of ownership over the property and not merely whether or not
respondents, as plaintiffs, were entitled to possession de facto as the registered owners thereof; hence, the MTC
had no jurisdiction over the action of respondents.

Petitioners are of the view that the trial court and the CA erred in declaring that there was no trust created over the
property. They maintain that there was a verbal agreement between Gideon and his sister Asuncion that the
property would be purchased by them; that the purchase price thereof would be advanced by Asuncion; that
Asuncion would be indicated as the vendee in the deed of absolute sale to enable her to secure a GSIS loan to pay
for the property, with the concomitant agreement that Gideon would pay one-half of the purchase price for the
property; and that the property will be titled in their name as trustees for the spouses Gideon and Angela dela Rosa
over one-half portion of the lots. They insist that they are not barred from assailing the deed of absolute sale
executed in favor of the spouses Dulay by the spouses Rivera. There is likewise no factual and legal basis for the
award of attorney's fees.

In their comment on the petition, respondents aver that the stay of petitioners in the property after 1982 was by
mere tolerance. The MTC had exclusive jurisdiction over their action because it was filed within one year from
petitioners' last demand to vacate the property. The CA correctly ruled that no trust was created over the property,
with petitioners as trustors and respondents as trustees; whether a trust agreement was created is a question of fact
which cannot be raised in this Court in a petition for review on certiorari.

In any event, petitioners' claim of a constructive trust was barred by prescription since more than ten years had
elapsed from the time the titles over the properties in favor of respondents were issued on September 16, 1957.

Respondents further point out that the MTC of Tarlac rendered judgment in Civil Case No. 6154 dismissing the
complaint on the ground of prescription or laches; on April 6, 2000, the RTC affirmed the decision on appeal; the CA
affirmed the decision in CA-G.R. SP No. 58857 on February 14, 2002; and on January 22, 2003, this Court denied
petitioners' petition for review of the decision of the CA in G.R. No. 155599. 26 Thus, the fact that no constructive trust
existed in favor of petitioners has been laid to rest by the Court.

The Ruling of the Court

The threshold issues are: (1) whether the MTC had jurisdiction over the action of respondents (plaintiffs therein); (2)
whether the CA erred in declaring that there was no trust relationship between petitioners as trustors and
respondents as trustees; (3) whether the appellate court erred in ruling that the action of petitioners to enforce the
trust against respondents had prescribed; and (4) whether respondents are entitled to attorney's fees.

On the first issue, we agree with the decision of the CA that the action of respondents against petitioners was one
for unlawful detainer, and that the MTC had jurisdiction over the same. Indeed, petitioners claimed ownership over
one-half of the property in their answer to the complaint and alleged that respondents were merely trustees thereof
for their benefit as trustors; and, during the pre-trial, respondents admitted having filed their complaint for recovery
of possession of real property (accion publiciana) against petitioners before the CFI of Tarlac, docketed as Civil
Case No. 6261. However, these did not divest the MTC of its inceptial jurisdiction over the complaint for unlawful
detainer of respondents.

It is settled jurisprudence that what determines the nature of an action as well as which court or body has jurisdiction
over it are the allegations of the complaint and the character of the relief sought, whether or not plaintiff is entitled to
any and all of the reliefs prayed for.27 The jurisdiction of the court or tribunal over the nature of the action cannot be
made to depend upon the defenses set up in the court or upon a motion to dismiss, for otherwise, the question of
jurisdiction would depend almost entirely on defendant. Once jurisdiction is vested, the same is retained up to the
end of the litigation.28

Jurisdiction cannot be conferred by the voluntary act or agreement of the parties; it cannot be acquired through or
waived, enlarged or diminished by their act or omission. Neither is it conferred by the acquiescence of the court. It is
neither for the court nor the parties to violate or disregard the rule, this matter being legislative in character. Thus,
the jurisdiction over the nature of an action and the subject matter thereof is not affected by the theories set up by
defendant in an answer or motion to dismiss.29

Section 3 of Republic Act No. 7691, amending Section 33(2) of Batas Pambansa Blg. 129, which was the law in
effect when respondents filed their complaint against petitioners, provides that "Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts exercise exclusive original jurisdiction over cases of forcible entry and
unlawful detainer; provided that, when, in such cases, defendant raises the questions of ownership in his pleadings
and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership
shall be resolved only to determine the issues of possession."

As gleaned from the averments of the complaint, respondents, as plaintiffs below, alleged that they were the owners
of parcels of land covered by TCT Nos. 29040 and 29041, hence, entitled to the possession of the property;
petitioners (defendants therein) and their predecessors-in-interest had occupied the said parcels of land since 1957
without paying any rent; their possession over the property continued even after the spouses Dulay purchased the
property; and that their occupation of the property was by mere tolerance of the spouses Dulay and, after Asuncion
died on June 26, 1995, by respondents; petitioners promised to vacate the premises when respondents needed the
property; demands were made by respondents on October 2, 1995 for petitioners to vacate the property but the
latter refused, prompting an action to be filed in the Office of the Pangkat; and, on December 1, 1995,
the Pangkat Secretary issued a certification to file action. As gleaned from the petitory portion of the complaint,
respondents likewise prayed for the eviction of petitioners from the property with a plea for judgment for reasonable
compensation for petitioners' occupation of the premises. Respondents filed their complaint on January 29, 1996 in
the MTC, within the period of one year from the final demand made against petitioners to vacate the property.

It is true that during the pre-trial, the MTC issued an order defining the issue to be litigated by the parties – whether
or not unlawful detainer is proper in the premises considering defendants' claim of ownership from 1982; otherwise
stated, whether petitioners' occupation of the land in dispute was by mere tolerance of respondents. As framed by
the MTC, the issue before it was basically one of physical or material possession of the property, although
petitioners raised ownership as an issue. Thus, the MTC erred when it declared that, since defendants claimed
ownership over the property, it was divested of its jurisdiction to take cognizance of and decide the case on its
merits.

It bears stressing that in unlawful detainer cases, the only issue for resolution, independent of any claim of
ownership by any party litigant, is: who is entitled to the physical and material possession of the property involved?
The mere fact that defendant raises the defense of ownership of the property in the pleadings does not deprive the
MTC of its jurisdiction to take cognizance of and decide the case. In cases where defendant raises the question of
ownership in the pleadings and the question of possession cannot be resolved without deciding the issue of
ownership, the court may proceed and resolve the issue of ownership but only for the purpose of determining the
issue of possession. However, the disposition of the issue of ownership is not final, as it may be the subject of
separate proceeding specifically brought to settle the issue. Hence, the bare fact that petitioners, in their answer to
the complaint, raised the issue of whether they owned the property as trustors of a constructive trust (with the
spouses Dulay as the trustees), did not divest the MTC of its jurisdiction to take cognizance of the case and decide
the same on its merits.30

Petitioners were well aware that the issue of ownership over the property had to be resolved in a proper action for
the purpose, separate from and independent of Civil Case No. 6089 in the MTC of Tarlac. It is for this reason that
petitioner Angela filed a complaint for recovery of ownership, reconveyance, cancellation of title and damages
against respondents, docketed as Civil Case No. 6154, wherein she prayed that respondents, as defendants, be
ordered to convey to her one-half portion of the property. However, her claim was rejected by the trial court, which
ordered the complaint dismissed; the RTC likewise dismissed the case on appeal. In affirming this dismissal in CA-
G.R. SP No. 58857 promulgated on February 14, 2002, the CA ratiocinated as follows:

Nevertheless, notwithstanding the foregoing, this Court finds that petitioner's complaint should be dismissed.
This is so because petitioner miserably failed to establish her claim to the property. It must be stressed that
while an implied trust may be established by parol evidence, such evidence must be as fully convincing as if
the acts giving rise to the trust obligation are proven by an authentic document. (Heirs of Lorenzo Yap v.
Court of Appeals, 312 SCRA 603 [1999], at page 609). An implied trust cannot be made to rest on vague
and inconclusive proof. (Ibid.)

Unfortunately for petitioner, the evidence she presented in her attempt to establish their so-called trust
agreement is not sufficient or convincing. The list of dates and amounts written by her purportedly showing
payments made to the late Asuncion dela Rosa Dulay cannot even be given credence as appreciation of
such list can be equivocal (see Exhibit "H," page 152, Original Records). The list was made in petitioner's
handwriting and there was no counter-signature made by Dulay showing acknowledgment of such listing. At
best, the list can merely be appreciated as it is, a list, but definitely, it does not prove payments made on the
purchase price of the ½ portion of the property.

Also, the Court notes the NBI's Questioned Documents Report No. 316-884 (dated Nov. 14, 1984) finding
that the signature of Asuncion Dulay in the receipt allegedly acknowledging partial payment in the amount
of P500.00 was signed over a typewritten carbon or duplicate impression which is not part of the main
entries in the receipt (see Exhibit "7," page 154, Original Records). Such conclusion shows that the entries
made on the receipt were not written on a single occasion but rather separately executed. Thus, the Court
cannot give any evidentiary value on said receipt considering that its credibility is suspect.

Meanwhile, private respondents have in their favor TCT Nos. 29040 and 29041 in the name of the spouses
Arsenio Dulay and Asuncion dela Rosa (see Exhibits "1" and "2," pages 181-182, Original Records); the
Deed of Absolute Sale executed in 1957 by the spouses Adriano Rivera and Aurora Mercado (petitioner's
paternal grandparents) conveying the entire property to the spouses Dulay for the price of P7,000 (see
Exhibit "3," page 148, Original Records); the tax declaration receipts showing tax payments made by private
respondents on the property (see Exhibits "3" to "3-b," pages 183-185, Original Records); and the tax
declaration of real property for the year 1974 in the name of the spouses Dulay (see Exhibit "C" to "C-1,"
pages 150-151, Original Records).

All told, petitioner failed to discharge that onus incumbent upon her to prove her claim over the property. 31

Angela assailed the decision of the CA in this Court in G.R. No. 155599, and this Court resolved to deny the petition
as follows:

G.R. No. 155599 (Angela dela Rosa v. Orfelina Roldan, et al.). – Considering the allegations, issues, and
arguments adduced in the petition for review on certiorari of the decision and resolution of the Court of
Appeals dated February 14, 2002 and October 14, 2002, respectively, the Court Resolves to DENY the
petition for failure of the petitioner to sufficiently show that the Court of Appeals committed any reversible
error in the challenged decision and resolution as to warrant the exercise by this Court of its discretionary
appellate jurisdiction in this case.32

The resolution of the Court became final and executory on May 20, 2003. 33 Thus, the issue of whether or not
respondents were trustees of one-half of the property had been finally resolved by this Court in favor of
respondents; in fine, the validity of TCT Nos. 29040 and 29041 in the names of the spouses Dulay had been
affirmed by the trial court, the MTC, the CA and this Court. The claim of co-ownership of petitioner Angela and
possession over the western portion of the property thus have no factual and legal basis.

We agree with petitioners that the complaint of the spouses Dulay filed in 1982 docketed as Civil Case No. 6261
was one for recovery of possession of the property (accion publiciana) and that they likewise later filed a complaint
with the MTC, on January 29, 1996, for unlawful detainer in Civil Case No. 6089 instead of an accion publiciana.
However, respondents were not proscribed from filing a complaint for unlawful detainer five (5) or six (6) years from
the dismissal of their complaint for recovery of possession of real property. The dismissal of respondents' complaint
in Civil Case No. 6261 by the CA was not based on the merits of the case, but solely because it was premature on
account of the failure to allege that earnest efforts were made for the amicable settlement of the cases as required
by Article 222 of the New Civil Code. The dismissal of the complaint was thus without prejudice. 34
It bears stressing that, after the Court declared in UDK-10069 on November 19, 1990 that the decision of the CA in
CA-G.R. CV No. 15455 was final and executory, respondents did not immediately file their complaint for unlawful
detainer against petitioners for their eviction. Respondents filed their complaint only on January 29, 1996, or after
the lapse of almost six (6) years, but barely four (4) months after respondents' final demand to vacate the property
on October 2, 1995 and the issuance of the certification of the Pangkat Secretary on December 1, 1995.

We agree with the contention of petitioners that for an action for unlawful detainer based on possession by mere
tolerance to prosper, the possession of the property by defendant must be legal from the very beginning. 35 In this
case, petitioners' possession of the property was tolerated by the former owners, the spouses Rivera, and by the
spouses Dulay after they purchased the property. After all, Angela was the granddaughter of Consolacion Rivera,
the sister of Adriano Rivera, and Gideon was the brother of Asuncion. However, when the spouses Dulay needed
the property for their children's use and requested petitioners to vacate the property, the latter refused. From then
on, petitioners' possession of the property became deforciant. A person who occupies the land of another on the
latter's tolerance, without any contract between them, is necessarily barred by an implied provision that he will
vacate the same upon demand. 36 Respondents thus had the option to file a complaint for unlawful detainer within
one year therefrom, or an accion publiciana beyond the one-year period from the demand of respondents as
plaintiffs for petitioners to vacate the property.

The Court notes that the property was sold to respondents, and that it was titled in their names (TCT Nos. 29040
and 29041). The said deed and titles support the right of respondents to the material possession of the
property.37 Under all the circumstances and facts in this case, petitioners' claim, that they had the right to the
material possession of the property, has no factual and legal basis. We quote with approval the decision of the CA in
CA-G.R. SP No. 45560:

Private respondents are entitled to its possession from the time title was issued in their favor as registered
owners. "An action for unlawful detainer may be filed when possession by a landlord, vendor, vendee or
other person against whom the possession of any land or building is unlawfully withheld after the expiration
or termination of their right to hold possession, by virtue of a contract, express or implied."

Second. "The age-old rule is that 'the person who has a torrens title over a land is entitled to possession
thereof'." Except for the claim that the title of private respondents is not conclusive proof of ownership,
petitioners have shown no right to justify their continued possession of the subject premises. 38

On the issue of whether the RTC acted in excess of its appellate jurisdiction in awarding P50,000.00 as attorney's
fees in favor of respondents, petitioners aver that under the Rules on Summary Procedure, respondents are entitled
to a maximum amount of only P20,000.00; hence, the RTC acted in excess of its jurisdiction when it
awarded P50,000.00 as attorney's fees, as it is in excess of the maximum amount under the said Rules. Besides,
petitioners aver, the amount of P50,000.00 is unjust and inequitable. Moreover, the RTC ordered petitioners to pay
attorney's fees of P50,000.00 without even supporting the award with its finding and citing legal provisions or case
law.

For its part, the CA ruled that the award of P50,000.00 as attorney's fees under the Rules on Summary Procedure
does not apply in a case where the decision of the MTC is appealed to the RTC. The latter court may award an
amount beyond the maximum amount of P20,000.00 under the Rules on Summary Procedure as attorney's fees for
the reason that, on appeal in the RTC, the regular rules of civil procedure apply. According to the CA, there was
factual and legal basis for the award of P50,000.00 as respondents' attorney's fees:

Second. Decisional law states –

"There is no question that a court may, whenever it deems just and equitable, allow the recovery by
the prevailing party of attorney's fees. In determining the reasonableness of such fees, this Court in
a number of cases has provided various criteria which, for convenient guidance, we might collate,
thusly: a) the quantity and character of the services rendered; b) the labor, time and trouble involved;
c) the nature and importance of the litigation; d) the amount of money or the value of the property
affected by the controversy; e) the novelty and difficulty of questions involved; f) the responsibility
imposed on counsel; g) the skill and experience called for in the performance of the service; h) the
professional character and social standing of the lawyer; i) the customary charges of the bar for
similar services; j) the character of employment, whether casual or for established client; k) whether
the fee is absolute or contingent (it being the rule that an attorney may properly charge a higher fee
when it is contingent than when it is absolute; and l) the results secured."

In view thereof, the award of attorney's fees is justified. That is, in addition to the provisions of Article 2208
of the New Civil Code which reads –

"In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs,
cannot be recovered, except:

xxxx
 (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or
to incur expenses to protect his interest;"

xxxx

considering that petitioners refused to vacate the subject premises despite demands by the private
respondents.

Finally, the Supreme Court has explained –

"The Rule on Summary Procedure applies only in cases filed before the Metropolitan Trial Court and
Municipal Trial Courts pursuant to Section 36 of Batas Pambansa Blg. 129. x x x Hence, when the
respondents appealed the decision of the Municipal Trial Court to the Regional Trial Court, the
applicable rules are those of the latter court."

Thus, the award of the amount of fifty thousand pesos (P50,000.00) as attorney's fees is justified
considering that the jurisdictional amount of twenty thousand pesos (P20,000.00) under Section 1,
paragraph (A), subparagraph (1) of the Revised Rule on Summary Procedure applies only to the
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial
Courts.39

We agree with the ruling of the CA. The ceiling of P20,000.00 applies only in the MTC where the Rules on Summary
Procedure are applied. On appeal to the RTC, the RTC may affirm, modify or even reverse the decision of the MTC;
as such, the RTC may increase the award for attorney's fees in excess of P20,000.00 if there is factual basis
therefor.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. Costs against the petitioners.

SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Chico-Nazario, J.J., concur.

Austria-Martinez, J.J., no part

Classification of actions for purposes of determining the existence of jurisdiction

- Alcasid vs. Court of Appeals- 217 SCRA 437

G.R. No. 104751 October 7, 1994

ISABEL RUBIO ALCASID, assisted by her husband DOMINGO A. ALCASID, petitioners, vs.
THE HONORABLE COURT OF APPEALS and RUFINA L. LIM, respondents.

Arnold V. Guerrero & Associates for petitioner.

Nelson A. Loyola and Danilo T. Arrienda for private respondent.

QUIASON, J.:

This is a petition under Rule 45 of the Revised Rules of Court to set aside the decision of the Court of Appeals in
CA-G.R. SP No. 26108 entitled "Rufina L. Lim v. Hon. Eustaquio Sto. Domingo, in his capacity as Presiding Judge
of the Regional Trial Court, Fourth Judicial Region, Branch 35, Calamba, Laguna, and Isabel Rubio Alcasid,
assisted by her husband Domingo A. Alcasid."

Petitioner is one of the co-owners of two parcels of land located in Calamba, Laguna. Private respondent offered to
purchase from petitioner and her co-owners the abovementioned property. Petitioner was willing to sell her share for
P4,500,000.00 and only if all her co-owners would sell their respective shares of the said land.
Petitioner engaged the services of Atty. Antonio A. Fernandez for the purpose of negotiating the sale, without
knowing that he was also representing private respondent.

In March 1990, Atty. Fernandez confirmed to petitioner that all her

co-owners were already amenable to sell their shares for P1,500,000.00.

On March 4, 1990, petitioner signed a Deed of Sale drafted by

Atty. Fernandez. Subsequently, petitioner learned that the other co-owners did not agree to sell their shares over
the subject property.

On November 4, 1990, petitioner filed a complaint in the Regional Trial Court, Branch 34, Calamba, Laguna, for
annulment of the contract of sale and damages with a prayer for temporary restraining order or writ of preliminary
injunction against private respondent.

Private respondent filed a motion to dismiss on the grounds that the complaint stated no cause of action. The trial
court denied the motion to dismiss.

On August 20, 1991, a motion to declare private respondent in default was filed by petitioner. This was granted by
the trial court.

Private respondent appealed the said orders of the trial court to the Court of Appeals, which reversed the decision of
the trial court and held that the complaint stated no cause of action.

Hence, this petition.

II

Petitioner alleges that her complaint for annulment of contract is based upon fraud, mistake and undue influence
which vitiated her consent. According to her, were it not for the misrepresentation of private respondent and
Atty. Fernandez that her co-owners had agreed to sell their share to private respondent, petitioner would not have
agreed to sell her share.

Private respondent, on the other hand, claims the complaint is in the nature of malpractice suit against Atty.
Fernandez and not against her.

III

Petitioner contends that she was not aware that Atty. Fernandez was also representing private respondent, but a
letter dated March 4, 1990 sent by
Atty. Fernandez to the petitioner belied her allegation.

The letter is reproduced in full, as follows:

March 4, 1990

TO: Mrs. Isabel R. Alcasid &

Mrs. Mila A. Marcos (daughter)

For and in behalf of my client, Miss Rufina L. Lim of Bucal, Calamba, Laguna, I, Atty. Antonio A.
Fernandez hereby confirm that the selling price of One Million One Thousand Seven Hundred Fifty
Pesos (P1,0001,750.00) is NET Purchase price and full payment of Lot Nos. 44-10-A-4 & 199 New-
A-4.

My client, Miss Rufina Lim, the vendee, hereby assumes the full payment of BIR capital gain tax and
transfer fee. Likewise, my said clients shall shoulder Register of Deed's registration and transfer
fees, including all the documentary & science stamps. Attorney's fees and back taxes and other
related fees shall be exclusively paid by the vendee, Miss Lim.

In payment for the said purchase price, the full amount is represented by PNB DEMAND DRAFT
NO. ________ issued on
March ___, 1990.

This arrangement is also true to other vendors, namely Ignacio Rubio, Felix Rubio, Heirs of
Eufrosina Laygo, Heirs of Luz Rubio & Heirs of Amador Rubio.

ANTONIO A. FERNANDEZ
Counsel for Miss Rufina Lim
 (Rollo, p. 7; Emphasis supplied)

On the matter of fraud, Article 1338 of the Civil Code of the Philippines provides:

There is fraud when, through insidious words or machinations of one of the contracting parties the
other is induced to enter into a contract which, without them, he would not have agreed to (Art. 1338,
Civil Code).

In order that fraud may vitiate consent and be a cause for annulment of contract, the following must concur:

1.) It must have been employed by one contracting party upon the other (Art. 1342 and 1344);

2.) It must have induced the other party to enter into the contract (Art. 1338);

3.) It must have been serious (Art. 1344);

4.) It must have resulted in damage and injury to the party seeking annulment (Tolentino, IV
Commentaries on the Civil Code of the Philippines, 507 [1991 ed]).

As to the alleged mistake, Article 1331 of the Civil Code of the Philippines provides:

In order that mistake may invalidate consent, it should refer to the substance of the thing which is the
object of the contract, or to those conditions which have principally moved one or both parties to
enter into the contract.

To invalidate consent, the error must be real and not one that could have been avoided by the party alleging it. The
error must arise from facts unknown to him. He cannot allege an error which refers to a fact known to him or which
he should have known by ordinary diligent examination of the facts. An error so patent and obvious that nobody
could have made it, or one which could have been avoided by ordinary prudence, cannot be invoked by the one
who made it in order to annul his contract (Tolentino, supra at pp. 486-487).

Petitioner could have avoided the alleged mistake had she exerted efforts to verify from her co-owners if they really
consented to sell their respective shares.

As to undue influence, Article 1337 of the Civil Code of the Philippines provides:

There is undue influence when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be
considered: the confidential, family, spiritual and other relations between the parties, or the fact that
the person alleged to have been unduly influenced was suffering from mental weakness or was
ignorant or in financial distress.

Undue influence, therefore, is any means employed upon a party which, under the circumstances, he could not well
resist and which controlled his volition and induced him to give his consent to the contract, which otherwise he
would not have entered into. It must in some measure destroy the free agency of a party and interfere with the
exercise of that independent discretion which is necessary for determining the advantages or disadvantages of a
proposed contract (Tolentino, supra at p. 501). If a competent person has once assented to a contract freely and
fairly, he is bound thereby.

The finding of the Court of Appeals that petitioner executed the contract of her own free will and choice and not from
duress is fully supported by the evidence. Such finding should not be disturbed (Martinez v. Hongkong & Shanghai
Bank, 15 Phil. 252 [1910]).

Private respondent did not commit any wrongful act or omission which violated the primary right of petitioner. Hence,
petitioner did not have a cause of action (State Investment House, Inc. v. Court of Appeals, 206 SCRA 348 [1992]).

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals appealed from is AFFIRMED.

SO ORDERED.

Cruz, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

- Cadimas vs. Carrion GR No. 180394, September 29, 2008

MARJORIE B. CADIMAS, by her Attorney-In-Fact, VENANCIO Z. ROSALES, vs.

MARITES CARRION and GEMMA HUGO, Respondents.
 DECISION

TINGA, J.:

This is a petition for review on certiorari1 under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision 2 and
Resolution3 of the Court of Appeals in CA-G.R. SP No. 98572. The appellate court set aside two orders 4 of the Regional
Trial Court (RTC), Branch 85, Quezon City issued in Civil Case No. Q-04-53581 on the ground that the trial court had no
jurisdiction over the case.

The instant petition stemmed from the complaint 5 for accion reivindicatoria and damages filed by petitioner Marjorie B.
Cadimas, through her attorney-in-fact, Venancio Z. Rosales, against respondents Marites Carrion and Gemma Hugo. The
complaint was docketed as Civil Case No. Q-04-53581 and raffled to Branch 85 of the RTC of Quezon City.

In the complaint, petitioner averred that she and respondent Carrion were parties to a Contract To Sell dated 4 August
2003, wherein petitioner sold to respondent Carrion a town house located at Lot 4-F-1-12 No. 23 Aster Street, West
Fairview Park Subdivision, Quezon City for the sum of P330,000.00 to be paid in installments. According to petitioner,
Carrion had violated paragraph 8 of said contract when she transferred ownership of the property to respondent Hugo
under the guise of a special power of attorney, which authorized the latter to manage and administer the property for and
in behalf of respondent Carrion. Allegedly, petitioner asked respondent Carrion in writing to explain the alleged violation
but the latter ignored petitioner’s letter, prompting petitioner to demand in writing that Carrion and Hugo vacate the
property and to cancel the contract.6

On 28 October 2004, petitioner filed a Motion To Declare Defendant Marites Carrion In Default, 7 alleging that despite the
service of summons and a copy of the complaint, respondent Carrion failed to file a responsive pleading within the
reglementary period.

Respondent Hugo filed a Motion To Dismiss 8 on her behalf and on behalf of respondent Carrion on 18 November 2004,
citing the grounds of lack of jurisdiction to hear the case on the part of the RTC and estoppel and/or laches on the part of
petitioner. Respondent Hugo argued that the Housing and Land Use Regulatory Board (HLURB) has jurisdiction over the
complaint because ultimately, the sole issue to be resolved was whether petitioner, as the owner and developer of the
subdivision on which the subject property stood, was guilty of committing unsound real estate business practices.

In the same motion, respondent Hugo averred that the RTC had not acquired jurisdiction over the person of respondent
Carrion for not complying with Section 16, Rule 14 of the Rules of Court on the proper service of summons on a non-
resident defendant. However, attached to the motion was a special power of attorney, whereby respondent Carrion had
authorized respondent Hugo, among others, to manage and administer the subject property and to prosecute and defend
all suits to protect her rights and interest in said property. 9

After petitioner filed a comment on the motion to dismiss, the RTC issued an Omnibus Order 10 on 21 March 2005, which
denied the motion to dismiss. The RTC held that the court’s jurisdiction is not determined by the defenses set up in the
answer or the motion to dismiss.

In the same omnibus order, the RTC ruled that summons was served properly, thus, the court had acquired jurisdiction
over respondent Carrion. The RTC noted that respondent Hugo’s failure to disclose at the outset that she was equipped
with a special power of attorney was an act constitutive of misleading the court. Thus, the RTC declared respondent
Carrion in default, directed petitioner to present evidence ex-parte against respondent Carrion, and respondent Hugo to
file an answer.

On 18 April 2005, respondent Hugo filed an answer on her behalf and as the attorney-in-fact of respondent Carrion. 11 The
answer pleaded a compulsory counterclaim for damages. The following day, petitioner presented evidence ex-
parte against respondent Carrion. Thus, on 22 April 2005, respondent Hugo sought a reconsideration of the omnibus
order, praying for the dismissal of the complaint, the cancellation of the presentation of evidence ex-parte, the lifting of the
order of default against respondent Carrion and the issuance of an order directing the extraterritorial service of summons
on respondent Carrion.12

On 17 January 2007, the RTC issued an order, upholding its jurisdiction over petitioner’s complaint. Citing the interest of
substantial justice, the RTC lifted the order of default against respondent Carrion and set the pre-trial conference of the
case.13

However, respondents elevated the matter to the Court of Appeals via a special civil action for certiorari, praying that the
Omnibus Order dated 21 March 2005 and Order dated 17 January 2007 issued by Judge Teodoro T. Riel be reversed
and set aside and that the complaint in Civil Case No. Q-04-53581 be dismissed for lack of jurisdiction.

On 27 September 2007, the Court of Appeals rendered the assailed Decision granting respondents’ petition for certiorari.
The appellate court set aside the assailed orders of the RTC and ordered the dismissal of petitioner’s complaint for lack of
jurisdiction. In its Resolution dated 9 November 2007, the Court of Appeals denied petitioner’s motion for reconsideration.

Hence, the instant petition, raising the following arguments: (1) based on the allegations in the complaint, the RTC has
jurisdiction over Civil Case No. Q-04-53581; (2) in any case, respondents have expressly submitted to or recognized the
jurisdiction of the RTC by filing an answer with counterclaim; and (3) respondents erroneously availed of a Rule 65
petition instead of filing a timely appeal from the order denying their motion to dismiss. 14
Essentially, petitioner argues that based on the allegations in the complaint and the reliefs sought, the RTC has
jurisdiction over the matter. In any case, the compulsory counterclaim pleaded in the answer of respondents was an
express recognition on their part of the jurisdiction of the RTC over the complaint for accion reivindicatoria, petitioner
adds.

The petition is meritorious.

The nature of an action and the jurisdiction of a tribunal are determined by the material allegations of the complaint and
the law at the time the action was commenced. Jurisdiction of the tribunal over the subject matter or nature of an action is
conferred only by law and not by the consent or waiver upon a court which, otherwise, would have no jurisdiction over the
subject matter or nature of an action.15

An examination of Section 1 of Presidential Decree (P.D.) No. 1344, 16 which enumerates the regulatory functions of the
HLURB,17

readily shows that its quasi-judicial function is limited to hearing only the following specific cases:

SECTION 1. In the exercise of its functions to regulate the real estate trade and business and in addition to its powers
provided for in Presidential Decree No. 957, the National Housing Authority shall have exclusive jurisdiction to hear and
decide cases of the following nature:

A. Unsound real estate business practices;

B. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the
project owner, developer, dealer, broker, or salesman; and

C. Cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lot
or condominium unit against the owner, developer, dealer or salesman.

The aforequoted provision must be read in the light of the statute’s preamble or the introductory or preparatory clause that
explains the reasons for its enactment or the contextual basis for its interpretation. The scope of the regulatory authority
thus lodged in the National Housing Authority (NHA) [now HLURB] is indicated in the second and third preambular
paragraphs of the statute which provide:

"WHEREAS, numerous reports reveal that many real estate subdivision owners, developers, operators, and/or sellers
have reneged on their representations and obligations to provide and maintain properly subdivision roads, drainage,
sewerage, water systems, lighting systems and other similar basic requirements, thus endangering the health and safety
of home and lot buyers;

WHEREAS, reports of alarming magnitude also show cases of swindling and fraudulent manipulations perpetrated by
unscrupulous subdivision and condominium sellers and operators, such as failure to deliver titles to the buyers or titles
free from liens and encumbrances, and to pay real estate taxes, and fraudulent sales of the same subdivision lots to
different innocent purchasers for value ."18

The boom in the real estate business all over the country resulted in more litigation between subdivision
owners/developers and lot buyers with the issue of the jurisdiction of the NHA or the HLURB over such controversies as
against that of regular courts. In the cases that reached this Court, the ruling has consistently been that the NHA or the
HLURB has jurisdiction over complaints arising from contracts between the subdivision developer and the lot buyer or
those aimed at compelling the subdivision developer to comply with its contractual and statutory obligations to make the
subdivision a better place to live in. 19

We agree with the ruling of the RTC that it has jurisdiction over the case based on the allegations of the complaint.
Nothing in the complaint or in the contract to sell suggests that petitioner is the proper party to invoke the jurisdiction of
the HLURB. There is nothing in the allegations in the complaint or in the terms and conditions of the contract to sell that
would suggest that the nature of the controversy calls for the application of either P.D. No. 957 or P.D. No. 1344 insofar
as the extent of the powers and duties of the HLURB is concerned.

Note particularly paragraphs (b) and (c) of Sec. 1, P.D. No. 1344 as worded, where the HLURB’s jurisdiction concerns
cases commenced by subdivision lot or condominium unit buyers. As to paragraph (a), concerning "unsound real estate
practices," the logical complainants would be the buyers and customers against the sellers (subdivision owners and
developers or condominium builders and realtors), and not vice versa.20

The complaint does not allege that petitioner is a subdivision lot buyer. The contract to sell does not contain clauses which
would indicate that petitioner has obligations in the capacity of a subdivision lot developer, owner or broker or salesman or
a person engaged in real estate business. From the face of the complaint and the contract to sell, petitioner is an ordinary
seller of an interest in the subject property who is seeking redress for the alleged violation of the terms of the contract to
sell. Petitioner’s complaint alleged that a contract to sell over a townhouse was entered into by and between petitioner
and respondent Carrion and that the latter breached the contract when Carrion transferred the same to respondent Hugo
without petitioner’s consent.21 Thus, petitioner sought
the cancellation of the contract and the recovery of possession and ownership of the town house. Clearly, the complaint is
well within the jurisdiction of the RTC.

In Javellana v. Hon. Presiding Judge, RTC, Branch 30, Manila,22 the Court affirmed the jurisdiction of the RTC over the
complaint for accion publiciana and sum of money on the ground that the complaint did not allege that the subject lot was
part of a subdivision project but that the sale was an ordinary sale on an installment basis. Even the mere assertion that
the defendant is a subdivision developer or that the subject lot is a subdivision lot does not automatically vest jurisdiction
on the HLURB. On its face, the complaint must sufficiently describe the lot as a subdivision lot and sold by the defendant
in his capacity as a subdivision developer to fall within the purview of P.D. No. 957 and P.D. No. 1344 and thus within the
exclusive jurisdiction of the HLURB.23

In their comment, respondents cite Antipolo Realty Corp. v. National Housing Authority,24 to bolster the argument that the
HLURB has jurisdiction over controversies involving the determination of the rights of the parties under a contract to sell a
subdivision lot. Antipolo Realty is not squarely applicable to the instant controversy. The issue in said case called for the
determination of whether the developer complied with its obligations to complete certain specified improvements in the
subdivision within the specified period of time, a case that clearly falls under Section 1, paragraph (c) of P.D. No. 1344.

In the instances where the jurisdiction of the HLURB was upheld, the allegations in the complaint clearly showed that the
case involved the determination of the rights and obligations of the parties in a sale of real estate under P.D. No. 957, 25 or
the complaint for specific performance sought to compel the subdivision developer to comply with its undertaking under
the contract to sell,26 or the claim by the subdivision developer would have been properly pleaded as a counterclaim in the
HLURB case filed by the buyer against the developer to avoid splitting causes of action. 27

The statement in Suntay v. Gocolay28 to the effect that P.D. No. 957 encompasses all questions regarding subdivisions
and condominiums, which was cited by the Court of Appeals in the assailed decision, is a mere obiter dictum. As a matter
of fact, the Court in Suntay nullified the orders issued by the HLURB over the action for the annulment of an auction sale,
cancellation of notice of levy and damages on the ground of lack of jurisdiction. P.D. No. 957 and P.D. No. 1344 were not
the applicable laws because the action was brought against a condominium buyer and not against the developer, seller,
or broker contemplated under P.D. No. 1344. The action likewise involved the determination of ownership over the
disputed condominium unit, which by its nature does not fall under the classes of disputes cognizable by the HLURB
under Section 1 of P.D. No. 1344.

The Court of Appeals held that the provision in the contract to sell mandating membership of the buyer of the housing unit
in a housing corporation was a strong indication that the property purchased by respondent Carrion from petitioner was
part of a tract of land subdivided primarily for residential purposes. Thus, the appellate court concluded that the HLURB
has jurisdiction over the controversy because the property subject thereof was part of a subdivision project.

Not every controversy involving a subdivision or condominium unit falls under the competence of the HLURB 29 in the
same way that the mere allegation of relationship between the parties, i.e., that of being subdivision owner/developer and
subdivision lot buyer, does not automatically vest jurisdiction in the HLURB. For an action to fall within the exclusive
jurisdiction of the HLURB, the decisive element is the nature of the action as enumerated in Section 1 of P.D. No.
1344.30 Notably, in Spouses Dela Cruz v. Court of Appeals,31 the Court upheld the jurisdiction of the RTC over the
complaint for cancellation of the contract to sell of a subdivision house and lot because the case did not fall under any of
the cases mentioned in Section 1, P.D. No. 1344. In interpreting said provision, the Court explained, thus:

On this matter, we have consistently held that the concerned administrative agency, the National Housing Authority (NHA)
before and now the HLURB, has jurisdiction over complaints aimed at compelling the subdivision developer to comply
with its contractual and statutory obligations.

For their part, respondents claim that the resolution of the case ultimately calls for the interpretation of the contract to sell
and the determination of whether petitioner is guilty of committing unsound real estate business practices, thus, the proper
forum to hear and decide the matter is the HLURB. The argument does not impress.

It is an elementary rule of procedural law that jurisdiction of the court over the subject matter is determined by the
allegations of the complaint irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims
asserted therein. As a necessary consequence, the jurisdiction of the court cannot be made to depend upon the defenses
set up in the answer or upon the motion to dismiss, for otherwise, the question of jurisdiction would almost entirely depend
upon the defendant. What determines the jurisdiction of the court is the nature of the action pleaded as appearing from
the allegations in the complaint. The averments in the complaint and the character of the relief sought are the matters to
be consulted.32 Thus, the allegations in respondents’ motion to dismiss on the unsound real estate business practices
allegedly committed by petitioner, even if proved to be true, cannot serve to oust the RTC of its jurisdiction over actions for
breach of contract and damages which has been conferred to it by law.

WHEREFORE, the instant petition for review on certiorari is GRANTED and the Decision dated 27 September 2007 and
Resolution dated 9 November 2007 of the Court of Appeals in CA-G.R. SP No. 98572 are REVERSED and SET ASIDE.
The orders dated 21 March 2005 and 17 January 2007 of the Regional Trial Court, Branch 85, Quezon City in Civil Case
No. Q-04-53581 are REINSTATED. The Regional Trial Court is ORDERED to resume the proceedings in and decide Civil
Case No. Q-04-53581 with deliberate speed. Costs against respondents.

SO ORDERED.
DANTE O. TINGA
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

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

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice

- Jose vs. Boyon, GR No. 147369, Oct. 23, 2003

Spouses PATRICK JOSE and RAFAELA JOSE, petitioners, vs.

Spouses HELEN BOYON and ROMEO BOYON, respondents.

DECISION

PANGANIBAN, J.:

In general, substituted service can be availed of only after a clear showing that personal service of summons was
not legally possible. Also, service by publication is applicable in actions in rem and quasi in rem, but not in personal
suits such as the present one which is for specific performance.

The Case

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the February
1

26, 2001 Decision of the Court of Appeals (CA) in CA-GR SP No. 60888. The dispositive portion of the CA Decision
2

is worded as follows:

"WHEREFORE, on the basis of what prescinds, the assailed resolution and orders issued by the public respondent
are perforce ANNULLED and SET ASIDE. This pronouncement is nonetheless rendered without prejudice to the
refiling of the same case by the private respondents with the court a quo." 3

The Facts
The factual antecedents of the case are narrated by the CA in this wise:

"On July 2, 1998, [petitioners] Patrick and Rafaela Jose lodged a complaint for specific performance against
[respondents] Helen and Romeo Boyon to compel them to facilitate the transfer of ownership of a parcel of land
subject of a controverted sale. The action was lodged before the Regional Trial Court of Muntinlupa which is
presided by herein public respondent Judge N.C. Perello. On July 21, 1998, respondent judge, through the acting
Branch Clerk of Court of Branch 276 of the RTC of Muntinlupa City, issued summons to the [respondents]. As per
return of the summons, substituted service was resorted to by the process server allegedly because efforts to serve
the summons personally to the [respondents] failed. On December 9, 1998, [petitioners] filed before the trial court
an Ex-parte Motion for Leave of Court to Effect Summons by Publication. On December 28, 1998, public respondent
issued an Order granting the Ex-parte Motion for Leave of Court to Effect Summons by Publication. On July 30,
1999, the respondent judge, sans a written motion, issued an Order declaring herein [respondents] in default for
failure to file their respective answers. As a consequence of the declaration of default, [petitioners] were allowed to
submit their evidence ex-parte. Ultimately, on December 7, 1999, respondent judge issued the assailed resolution,
the dispositive portion of which reads as follows:

‘x x x Therefore, Spouses Helen and Romeo Boyon are directed to execute the necessary document with the effect
of withdrawing the Affidavit of Loss they filed and annotated with the Register of Deeds of Makati City so that title ‘to
the parcel of land subject of the Deed of Absolute Sale in favor of the Plaintiffs be transferred in their names.
Thereafter the Register of Deeds of Makati City or Muntinlupa City may cancel Transfer of Certificate of Title No.
149635 of the Defendants and issue another to Plaintiff under the deed of sale, clean and free of any reported
encumbrance.

‘Defendants are also directed to pay Plaintiffs actual expenses in the amount of ₱20,000 and attorney’s fees of
₱20,000 including costs of this suit.’

xxxxxxxxx

"On January 5, 2000, [respondent] Helen Boyon, who was then residing in the United States of America, was
surprised to learn from her sister Elizabeth Boyon, of the resolution issued by the respondent court. On January 18,
2000, [respondents] filed an Ad Cautelam motion questioning, among others, the validity of the service of summons
effected by the court a quo. On March 17, 2000, the public respondent issued an Order denying the said motion on
the basis of the defaulted [respondents’] supposed loss of standing in court. On March 29, 2000, the [respondents]
once again raised the issue of jurisdiction of the trial court via a motion for reconsideration. On June 22, 2000,
however, an Order was issued by the public respondent denying the said motion. The [petitioners] moved for the
execution of the controverted judgment which the respondent judge ultimately granted." 4

Thereafter, respondents filed before the CA a Petition for certiorari under Rule 65 of the Revised Rules of Civil
Procedure, questioning the jurisdiction of the regional trial court (RTC).

Ruling of the Court of Appeals

The CA held that the trial court had no authority to issue the questioned Resolution and Orders. According to the
appellate court, the RTC never acquired jurisdiction over respondents because of the invalid service of summons
upon them. First, the sheriff failed to comply with the requirements of substituted service of summons, because he
did not specify in the Return of Summons the prior efforts he had made to locate them and the impossibility of
promptly serving the summons upon them by personal service. Second, the subsequent summons by publication
was equally infirm, because the Complaint was a suit for specific performance and therefore an action in personam.
Consequently, the Resolution and the Orders were null and void, since the RTC had never acquired jurisdiction over
respondents.

Hence, this Petition. 5

Issues

In their Memorandum, petitioners raise the following issues for our consideration:

"A. The Honorable Court of Appeals erred in not holding that the assailed Resolution dated December 7,
1999 was already final and executory

"B. The Honorable Court of Appeals erred in giving due course to the Petition for Certiorari of private
respondents despite the pendency of an appeal earlier filed

"C. The Honorable Court erred in not holding that the Petition for Certiorari was time barred

"D. The Honorable Court of Appeals erred in holding that the proceedings in the lower court are null and
void due to invalid and defective service of summons and the court did not acquire jurisdiction over the
person of the respondents." 6
In sum, the main issue revolves around the validity of the service of summons on respondents. 1ªvvphi1.nét

The Court’s Ruling

The Petition has no merit.

Main Issue:

Validity of the Service of Summons

Petitioners aver that the CA erred in ruling that the service of summons on respondents was invalid. They submit
that although the case filed before the trial court was denominated as an action for specific performance, it was
actually an action quasi in rem, because it involved a piece of real property located in the Philippines. They further
argue that in actions quasi in rem involving ownership of a parcel of land, it is sufficient that the trial court acquire
jurisdiction over the res. Thus, the summons by publication, which they effected subsequent to the substituted
service of summons, was allegedly sufficient.

On the other hand, respondents maintain that the proceedings in the trial court were null and void because of the
invalid and defective service of summons. According to them, the Return of Summons issued by the process server
of the RTC failed to state that he had exerted earnest efforts to effect the service of summons. He allegedly tried to
serve it personally on them on July 22, 1998 at No. 32 Ariza Drive, Camella Homes, Alabang. He, however, resorted
to substituted service on that same day, supposedly because he could not find respondents in the above address.
They further allege that the person to whom he gave the summons was not even a resident of that address.

Respondents contend that when summons is served by substituted service, the return must show that it was
impossible to serve the summons personally, and that efforts had been exerted toward that end. They add that
noncompliance with the rule on substituted service renders invalid all proceedings relative thereto.

As to the summons by publication subsequently effected by petitioners, respondents argue that the case filed before
the trial court was an action for specific performance and, therefore, an action in personam. As such, the summons
by publication was insufficient to enable the trial court to acquire jurisdiction over the persons of respondents.

Respondents conclude that even granting that the service of summons by publication was permissible under the
circumstances, it would still be defective and invalid because of the failure of petitioners to observe the requirements
of law, like an Affidavit attesting that the latter deposited in the post office a copy of the summons and of the order of
publication, paid the postage, and sent the documents by registered mail to the former’s last known address. 1awphi1.nét

We agree with respondents. In general, trial courts acquire jurisdiction over the person of the defendant by the
service of summons. Where the action is in personam and the defendant is in the Philippines, such service may be
done by personal or substituted service, following the procedures laid out in Sections 6 and 7 of Rule 14 of the
Revised Rules of Court, which read:

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

"Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable time
as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the
defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the
copies at defendant’s office or regular place of business with some competent person in charge thereof."

As can be gleaned from the above-quoted Sections, personal service of summons is preferred to substituted
service. Only if the former cannot be made promptly can the process server resort to the latter. Moreover, the proof
of service of summons must (a) indicate the impossibility of service of summons within a reasonable time; (b)
specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a person of
sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of
business, of the defendant. It is likewise required that the pertinent facts proving these circumstances be stated in
7

the proof of service or in the officer’s return. The failure to comply faithfully, strictly and fully with all the foregoing
requirements of substituted service renders the service of summons ineffective. 8

Defective Personal Service of Summons

In the instant case, it appears that the process server hastily and capriciously resorted to substituted service of
summons without actually exerting any genuine effort to locate respondents. A review of the records reveals that the 9

only effort he exerted was to go to No. 32 Ariza Drive, Camella Homes, Alabang on July 22, 1998, to try to serve the
summons personally on respondents. While the Return of Summons states that efforts to do so were ineffectual and
unavailing because Helen Boyon was in the United States and Romeo Boyon was in Bicol, it did not mention exactly
what efforts -- if any -- were undertaken to find respondents. Furthermore, it did not specify where or from whom the
process server obtained the information on their whereabouts. The pertinent portion of the Return of Summons is
reproduced as follows:
"That efforts to serve the said Summons personally upon defendants Sps. Helen and Romeo Boyon were made but
the same were ineffectual and unavailing for the reason that defendant Helen Boyon is somewhere in the United
States of America and defendant Romeo Boyon is in Bicol thus substituted service was made in accordance with
Section 7, Rule 14, of the Revised Rules of Court." 10

The Return of Summons shows that no effort was actually exerted and no positive step taken by either the process
server or petitioners to locate and serve the summons personally on respondents. At best, the Return merely states
the alleged whereabouts of respondents without indicating that such information was verified from a person who had
knowledge thereof. Certainly, without specifying the details of the attendant circumstances or of the efforts exerted
to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying
with the rules of substituted service of summons.

The necessity of stating in the process server’s Return or Proof of Service the material facts and circumstances
sustaining the validity of substituted service was explained by this Court in Hamilton v. Levy, from which we quote:
11

"x x x The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of
service or Officer’s Return; otherwise, any substituted service made in lieu of personal service cannot be upheld.
This is necessary because substituted service is in derogation of the usual method of service. It is a method
extraordinary in character and hence may be used only as prescribed and in the circumstances authorized by
statute. Here, no such explanation was made. Failure to faithfully, strictly, and fully comply with the requirements of
substituted service renders said service ineffective." 12

Moreover, the requirements of substituted service of summons and the effect of noncompliance with the subsequent
proceedings therefor were discussed in Madrigal v. Court of Appeals as follows:
13

"In a long line of cases, this Court held that the impossibility of personal service justifying availment of substituted
service should be explained in the proof of service; why efforts exerted towards personal service failed. The
pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or
Officer’s Return; otherwise, the substituted service cannot be upheld. It bears stressing that since service of
summons, especially for actions in personam, is essential for the acquisition of jurisdiction over the person of the
defendant, the resort to a substituted service must be duly justified. Failure to do so would invalidate all subsequent
proceedings on jurisdictional grounds." 14

Summons by Publication Improper

It must be noted that extraterritorial service of summons or summons by publication applies only when the action
is in rem or quasi in rem. The first is an action against the thing itself instead of against the defendant’s person; in
the latter, an individual is named as defendant, and the purpose is to subject that individual’s interest in a piece of
property to the obligation or loan burdening it. 15

In the instant case, what was filed before the trial court was an action for specific performance directed against
respondents. While the suit incidentally involved a piece of land, the ownership or possession thereof was not put in
issue, since they did not assert any interest or right over it. Moreover, this Court has consistently declared that an
action for specific performance is an action in personam. 16

Having failed to serve the summons on respondents properly, the RTC did not validly acquire jurisdiction over their
persons. Consequently, due process demands that all the proceedings conducted subsequent thereto should be
deemed null and void. 17

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against
petitioners.

SO ORDERED.

Puno, (Chairman), Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

- Domagas vs. Jensen G.R. No. 158407, January 17, 2005, 448 SCRA 663

FILOMENA DOMAGAS, petitioner, vs.

VIVIAN LAYNO JENSEN, respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari, under Rule 45 of the Rules of Court, of the Decision 1 of the Court of
Appeals (CA) in CA-G.R. CV No. 73995, which affirmed the Decision 2 of the Regional Trial Court (RTC) of Dagupan
City, Branch 44, in Civil Case No. 2000-0244-D, which declared null and void the decision of the Municipal Trial
Court (MTC) of Calasiao, Pangasinan in Civil Case No. 879. 3

The antecedent facts follow.

On February 19, 1999, petitioner Filomena Domagas filed a complaint for forcible entry against respondent Vivian
Jensen before the MTC of Calasiao, Pangasinan. The petitioner alleged in her complaint that she was the registered
owner of a parcel of land covered by Original Certificate of Title (OCT) No. P-30980, situated in Barangay Buenlag,
Calasiao, Pangasinan, and with an area of 827 square meters. On January 9, 1999 the respondent, by means of
force, strategy and stealth, gained entry into the petitioner’s property by excavating a portion thereof and thereafter
constructing a fence thereon. As such, the petitioner was deprived of a 68-square meter portion of her property
along the boundary line. The petitioner prayed that, after due proceedings, judgment be rendered in her favor, thus:

3. And, after trial, judgment be rendered:

a) DECLARING the writ of Preliminary Mandatory Injunction and Writ of Preliminary Injunction permanent;

b) ORDERING defendant, his representatives, agents and persons acting under her, to vacate the portion of
the property of the plaintiff occupied by them and to desist from entering, excavating and constructing in the
said property of the plaintiff described in paragraph 2 hereof and/or from disturbing the peaceful ownership
and possession of the plaintiff over the said land, pending the final resolution of the instant action;

c) ORDERING defendant to pay reasonable rental at FIVE THOUSAND (₱5,000.00) PESOS per month
from January 9, 1999 up to the time she finally vacates and removes all constructions made by her in the
property of the plaintiff and up to the time she finally restores the said property in the condition before her
illegal entry, excavation and construction in the property of the plaintiff;

d) ORDERING defendant to pay actual damages in the amount of TWENTY THOUSAND (₱20,000.00)
PESOS; moral damages in the amount of TWENTY THOUSAND (₱20,000.00) PESOS; attorney’s fees of
THIRTY THOUSAND (₱30,000.00) PESOS in retainer’s fee and ONE THOUSAND FIVE HUNDRED
(₱1,500.00) PESOS per court appearance fee; exemplary damages in the amount of TWENTY THOUSAND
(₱20,000.00) PESOS, and, costs.

Plaintiff further prays for other reliefs and remedies just and equitable in the premises. 4

The case was docketed as Civil Case No. 879. The summons and the complaint were not served on the respondent
because the latter was apparently out of the country. This was relayed to the Sheriff by her (the respondent’s)
brother, Oscar Layno, who was then in the respondent’s house at No. 572 Barangay Buenlag, Calasiao,
Pangasinan. The Sheriff left the summons and complaint with Oscar Layno, who received the same. 5

Nonetheless, on May 17, 1999, the court rendered judgment ordering the respondent and all persons occupying the
property for and in the latter’s behalf to vacate the disputed area and to pay monthly rentals therefor, including
actual damages, attorney’s fees, and exemplary damages. The fallo of the decision reads:

1) Ordering the defendant, her representatives, agents and persons acting under her, to vacate the 68-
square meters which she encroached upon;

2) Ordering the defendant to pay a monthly rental of ₱1,000.00 to the plaintiff;

3) To pay plaintiff actual damages of ₱20,000.00; attorney’s fees of ₱15,000.00 and exemplary damages in
the amount of ₱20,000.00 plus the costs.

SO ORDERED.6

The respondent failed to appeal the decision. Consequently, a writ of execution was issued on September 27, 1999.

On August 16, 2000, the respondent filed a complaint against the petitioner before the RTC of Dagupan City for the
annulment of the decision of the MTC in Civil Case No. 879, on the ground that due to the Sheriff’s failure to serve
the complaint and summons on her because she was in Oslo, Norway, the MTC never acquired jurisdiction over her
person. The respondent alleged therein that the service of the complaint and summons through substituted service
on her brother, Oscar Layno, was improper because of the following: (a) when the complaint in Civil Case No. 879
was filed, she was not a resident of Barangay Buenlag, Calasiao, Pangasinan, but of Oslo, Norway, and although
she owned the house where Oscar Layno received the summons and the complaint, she had then leased it to
Eduardo Gonzales; (b) she was in Oslo, Norway, at the time the summons and the complaint were served; (c) her
brother, Oscar Layno, was merely visiting her house in Barangay Buenlag and was not a resident nor an occupant
thereof when he received the complaint and summons; and (d) Oscar Layno was never authorized to receive the
summons and the complaint for and in her behalf. 7
The respondent further alleged that the MTC had no jurisdiction over the subject matter of the complaint in Civil
Case No. 879 because the petitioner, the plaintiff therein, failed to show prior possession of the property. She
further claimed that the alleged forcible entry was simply based on the result of the survey conducted by Geodetic
Engineer Leonardo de Vera showing that the property of the respondent encroached on that of the petitioner.

The respondent filed a Manifestation dated August 31, 2000, and appended thereto the following: (a) a copy 8 of her
passport showing that she left the country on February 17, 1999; (b) a copy 9 of the Contract of Lease dated
November 24, 1997, executed by her and Eduardo D. Gonzales over her house for a period of three (3) years or
until November 24, 2000; (c) her affidavit 10 stating, inter alia, that she owned the house at Barangay Buenlag,
Calasiao, Pangasinan, which she leased to Eduardo Gonzales; that she was married to Jarl Jensen, a citizen of
Norway, on August 23, 1987 and had resided in Norway with her husband since 1993; that she arrived in the
Philippines on December 31, 1998, but left on February 17, 1999; she returned to the Philippines on July 30, 2000
and learned, only then, of the complaint against her and the decision of the MTC in Civil Case No. 879; her brother
Oscar Layno was not a resident of the house at Barangay Buenlag; and that she never received the complaint and
summons in said case; (d) the affidavit 11 of Oscar Layno declaring that sometime in April 1999, he was in the
respondent’s house to collect rentals from Eduardo Gonzales; that the Sheriff arrived and served him with a copy of
the summons and the complaint in Civil Case No. 879; and that he never informed the respondent of his receipt of
the said summons and complaint; (e) an affidavit 12 of Eduardo Gonzales stating that he leased the house of the
respondent and resided thereat; the respondent was not a resident of the said house although he (Gonzales)
allowed the respondent to occupy a room therein whenever she returned to the Philippines as a balikbayan; and
that Oscar Layno was not residing therein but only collected the rentals.

In her answer to the complaint, the petitioner alleged that the respondent was a resident of Barangay Buenlag,
Calasiao, Pangasinan and was the owner of the subject premises where Oscar Layno was when the Sheriff served
the summons and complaint; that the service of the complaint and summons by substituted service on the
respondent, the defendant in Civil Case No. 879, was proper since her brother Oscar Layno, a resident and
registered voter of Barangay. Buenlag, Calasiao, Pangasinan, received the complaint and summons for and in her
behalf.

The petitioner appended the following to her answer: (a) a copy 13 of the Deed of Absolute Sale executed by Jose
Layno in her favor, dated August 26, 1992, showing that the respondent was a resident of Barangay Buenlag,
Calasiao, Pangasinan; (b) a Real Estate Mortgage 14 executed by the respondent, dated February 9, 1999 showing
that she was a resident of Barangay Buenlag, Calasiao, Pangasinan; (c) the Joint Affidavit 15 of Vicenta Peralta and
Orlando Macalanda, both residents of Barangay Buenlag, Calasiao, Pangasinan, declaring that the respondent and
her brother Oscar Layno were their neighbors; that the respondent and her brother had been residents of Barangay
Buenlag since their childhood; that although the respondent left the country on several occasions, she returned to
the Philippines and resided in her house at No. 572 located in the said barangay; and (d) the Voter’s Registration
Record16 of Oscar Layno, approved on June 15, 1997.

After due proceedings, the trial court rendered a decision in favor of the respondent. The dispositive portion reads:

WHEREFORE, judgment is rendered in favor of plaintiff Vivian Layno Jensen and against defendant Filomena
Domagas, as follows:

1. The Decision of the Municipal Trial Court of Calasiao, Pangasinan in Civil Case No. 879, entitled
Filomena Domagas versus Vivian Layno Jensen is declared null and void, for lack of jurisdiction over the
person of the plaintiff and the subject matter.

2. Defendant Filomena Domagas is ordered to pay plaintiff, the following:

a.) Actual damages, representing litigation expenses in the amount of ₱50,000.00;

b.) Attorney’s fees in the amount of ₱50,000.00;

c.) Moral Damages in the amount of ₱50,000.00;

d.) Exemplary Damages in the amount of ₱50,000.00; and

e.) Costs of suit.

SO ORDERED.17

The trial court declared that there was no valid service of the complaint and summons on the respondent, the
defendant in Civil Case No. 879, considering that she left the Philippines on February 17, 1999 for Oslo, Norway,
and her brother Oscar Layno was never authorized to receive the said complaint and summons for and in her
behalf.

The petitioner appealed the decision to the CA which, on May 6, 2003, rendered judgment affirming the appealed
decision with modifications. The CA ruled that the complaint in Civil Case No. 879 was one for ejectment, which is
an action quasi in rem. The appellate court ruled that since the defendant therein was temporarily out of the country,
the summons and the complaint should have been served via extraterritorial service under Section 15 in relation to
Section 16, Rule 14 of the Rules of Court, which likewise requires prior leave of court. Considering that there was no
prior leave of court and none of the modes of service prescribed by the Rules of Court was followed by the
petitioner, the CA concluded that there was really no valid service of summons and complaint upon the respondent,
the defendant in Civil Case No. 879.

Hence, the present petition.

The petitioner assails the decision of the CA, alleging that the appellate court erred in holding that the respondent’s
complaint for ejectment is an action quasi in rem. The petitioner insists that the complaint for forcible entry is an
action in personam; therefore, substituted service of the summons and complaint on the respondent, in accordance
with Section 7, Rule 14 of the Rules of Court, is valid. The petitioner, likewise, asserts that Oscar Layno is a resident
and a registered voter of Barangay Buenlag, Calasiao, Pangasinan; hence, the service of the complaint and
summons on the respondent through him is valid.

The respondent, on the other hand, asserts that the action for forcible entry filed against her was an action quasi in
rem, and that the applicable provision of the Rules of Court is Section 15 of Rule 14, which calls for extraterritorial
service of summons.

The sole issue is whether or not there was a valid service of the summons and complaint in Civil Case No. 879 on
the respondent herein who was the defendant in the said case. The resolution of the matter is anchored on the
issue of whether or not the action of the petitioner in the MTC against the respondent herein is an action
in personam or quasi in rem.

The ruling of the CA that the petitioner’s complaint for forcible entry of the petitioner against the respondent in Civil
Case No. 879 is an action quasi in rem, is erroneous. The action of the petitioner for forcible entry is a real action
and one in personam.

The settled rule is that the aim and object of an action determine its character. 18 Whether a proceeding is in rem,
or in personam, or quasi in rem for that matter, is determined by its nature and purpose, and by these only. 19 A
proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and
is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. 20 The
purpose of a proceeding in personam is to impose, through the judgment of a court, some responsibility or liability
directly upon the person of the defendant. 21 Of this character are suits to compel a defendant to specifically perform
some act or actions to fasten a pecuniary liability on him. 22 An action in personam is said to be one which has for its
object a judgment against the person, as distinguished from a judgment against the propriety to determine its state.
It has been held that an action in personam is a proceeding to enforce personal rights or obligations; such action is
brought against the person. As far as suits for injunctive relief are concerned, it is well-settled that it is an injunctive
act in personam.23 In Combs v. Combs,24 the appellate court held that proceedings to enforce personal rights and
obligations and in which personal judgments are rendered adjusting the rights and obligations between the affected
parties is in personam. Actions for recovery of real property are in personam.25

On the other hand, a proceeding quasi in rem is one brought against persons seeking to subject the property of
such persons to the discharge of the claims assailed. 26 In an action quasi in rem, an individual is named as
defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening
the property.27 Actions quasi in rem deal with the status, ownership or liability of a particular property but which are
intended to operate on these questions only as between the particular parties to the proceedings and not to
ascertain or cut off the rights or interests of all possible claimants. The judgments therein are binding only upon the
parties who joined in the action. 28

Section 1, Rule 70 of the Rules of Court provides:

Section 1. Who may institute proceedings, and when. - Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building in force, intimidation, threat, strategy, or stealth, or a
lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld
after the expiration or termination of the right to hold possession by virtue of any contract, express or implied, or the
legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1)
year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court
against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming
under them, for the restitution of such possession, together with damages and costs.

Under Section 15, Rule 70 of the said Rule, the plaintiff may be granted a writ of preliminary prohibition or
mandatory injunction:

Sec. 15. Preliminary Injunction. – The court may grant preliminary injunction, in accordance with the provisions of
Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the
filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ
of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty
(30) days from the filing thereof.

If, after due proceedings, the trial court finds for the plaintiff, it shall then render judgment in his or her favor, thus:

Sec. 17. Judgment. – If, after trial, the court finds that the allegations of the complaint are true, it shall render
judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as
reasonable compensation for the use and occupation of the premises, attorney’s fees and costs. If it finds that said
allegations are not true, it shall render judgment for the defendant to recover his costs. If a counterclaim is
established, the court shall render judgment for the sum found in arrears from either party and award costs as
justice requires.

From the aforementioned provisions of the Rules of Court and by its very nature and purpose, an action for unlawful
detainer or forcible entry is a real action and in personam because the plaintiff seeks to enforce a personal
obligation or liability on the defendant under Article 539 of the New Civil Code, 29 for the latter to vacate the property
subject of the action, restore physical possession thereof to the plaintiff, and pay actual damages by way of
reasonable compensation for his use or occupation of the property. 30

As gleaned from the averments of the petitioner’s complaint in the MTC, she sought a writ of a preliminary injunction
from the MTC and prayed that the said writ be made permanent. Under its decision, the MTC ordered the defendant
therein (the respondent in this case), to vacate the property and pay a "monthly rental" of ₱1,000.00 to the plaintiff
therein (the petitioner in this case).

On the issue of whether the respondent was validly served with the summons and complaint by the Sheriff on April
5, 1999, the petitioner asserts that since her action of forcible entry against the respondent in Civil Case No. 879
was in personam, summons may be served on the respondent, by substituted service, through her brother, Oscar
Layno, in accordance with Section 7, Rule 14 of the Rules of Court. The petitioner avers that Oscar Layno, a person
of suitable age and discretion, was residing in the house of the respondent on April 5, 1999. She avers that the fact
that the house was leased to and occupied by Eduardo Gonzales was of no moment. Moreover, the Sheriff is
presumed to have performed his duty of properly serving the summons on the respondent by substituted service.

The contention of the petitioner has no merit.

In Asiavest Limited v. Court of Appeals ,31 the Court had the occasion to state:

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and
decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can
be acquired by personal service of summons as provided under Section 7, Rule 14 of the Rules of Court. If he
cannot be personally served with summons within a reasonable time, substituted service may be made in
accordance with Section 8 of said Rule. If he is temporarily out of the country, any of the following modes of service
may be resorted to: (a) substituted service set forth in Section 8; (2) personal service outside the country, with leave
of court; (3) service by publication, also with leave of court; or (4) any other manner the court may deem sufficient. 32

Thus, any judgment of the court which has no jurisdiction over the person of the defendant is null and void. 33

In the present case, the records show that the respondent, before and after his marriage to Jarl Jensen on August
23, 1987, remained a resident of Barangay Buenlag, Calasiao, Pangasinan. This can be gleaned from the Deed of
Absolute Sale dated August 26, 1992 in which she declared that she was a resident of said barangay. Moreover, in
the Real Estate Mortgage Contract dated February 9, 1999, ten days before the complaint in Civil Case No. 879 was
filed, the petitioner categorically stated that she was a Filipino and a resident of Barangay Buenlag, Calasiao,
Pangasinan. Considering that the respondent was in Oslo, Norway, having left the Philippines on February 17,
1999, the summons and complaint in Civil Case No. 879 may only be validly served on her through substituted
service under Section 7, Rule 14 of the Rules of Court, which reads:

SEC. 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s
residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at
defendant’s office or regular place of business with some competent person in charge thereof.

Strict compliance with the mode of service is required in order that the court may acquire jurisdiction over the person
of the defendant.34 The statutory requirement of substituted service must be followed faithfully and strictly and any
substituted service other than that authorized by the statute is rendered ineffective. 35 As the Court held in Hamilton
v. Levy :36

… The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service
or Officer’s Return; otherwise, any substituted service made in lieu of personal service cannot be upheld. This is
necessary because substituted service is in derogation of the usual method of service. It is a method extraordinary
in character and hence may be used only as prescribed and in the circumstances authorized by statute. Here, no
such explanation was made. Failure to faithfully, strictly, and fully comply with the requirements of substituted
service renders said service ineffective. 37

In Keister v. Narcereo,38 the Court held that the term "dwelling house" or "residence" are generally held to refer to
the time of service; hence, it is not sufficient to leave the summons at the former’s dwelling house, residence or
place of abode, as the case may be. Dwelling house or residence refers 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. It is, thus, the service of the summons intended for the defendant that must be left with the person of suitable
age and discretion residing in the house of the defendant. Compliance with the rules regarding the service of
summons is as much important as the issue of due process as of jurisdiction. 39

The Return of Service filed by Sheriff Eduardo J. Abulencia on the service of summons reads:

Respectfully returned to the court of origin the herein summons and enclosures in the above-entitled case, the
undersigned caused the service on April 5, 1999.

Defendant Vivian Layno Jensen is out of the country as per information from her brother Oscar Layno, however,
copy of summons and enclosures was received by her brother Oscar Layno on April 5, 1999 as evidenced by his
signature appearing in the original summons.

Calasiao, Pangasinan, April 6, 1999.

(Sgd.)
EDUARDO J. ABULENCIA

Junior Process Server40

As gleaned from the said return, there is no showing that as of April 5, 1999, the house where the Sheriff found
Oscar Layno was the latter’s residence or that of the respondent herein. Neither is there any showing that the Sheriff
tried to ascertain where the residence of the respondent was on the said date. It turned out that the occupant of the
house was a lessor, Eduardo Gonzales, and that Oscar Layno was in the premises only to collect the rentals from
him. The service of the summons on a person at a place where he was a visitor is not considered to have been left
at the residence or place or abode, where he has another place at which he ordinarily stays and to which he intends
to return.41

The Voter’s Registration Record of Oscar Layno dated June 15, 1997 wherein he declared that he was a resident of
No. 572 Barangay Buenlag, Calasiao, Pangasinan, as well as the Joint Affidavit of Vicenta Peralta and Orlando
Macasalda cannot prevail over the Contract of Lease the respondent had executed in favor of Eduardo Gonzales
showing that the latter had resided and occupied the house of the respondent as lessee since November 24, 1997,
and the affidavit of Eduardo Gonzales that Oscar Layno was not residing in the said house on April 5, 1999.

In sum, then, the respondent was not validly served with summons and the complaint in Civil Case No. 879 on April
5, 1999, by substituted service. Hence, the MTC failed to acquire jurisdiction over the person of the respondent; as
such, the decision of the MTC in Civil Case No. 879 is null and void.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

- Dial vs. Judge Soriano GR No. 82330, May 31, 1988

THE DIAL CORPORATION, C & T REFINERY INC., NALIN Sdn. Bhb. BERISFORD COMMODITIES, LTD., and
PACIFIC MOLASSES COMPANY, petitioners, vs.
THE HON. CLEMENTE M. SORIANO, Presiding Judge, Regional Trial Court, Branch 3, MANILA PUBLIC
RESPONDENT and IMPERIAL VEGETABLE OIL COMPANY, INC., respondents.

Guerrero & Torres Law Office for petitioners.

Abad & Associates for respondents.

GRIÑO-AQUINO, J.:

The petitioners are foreign corporations organized and existing under the laws of the United States, the United Kingdom, and Malaysia, are not domiciled in the
Philippines, nor do they have officers or agents, place of business, or property in the Philippines; they are not licensed to engage, and are not engaged, in
business here. The respondent Imperial Vegetable Oil Company, Inc. (or "IVO" for brevity) is a Philippine corporation which through its president, Dominador
Monteverde, had entered into several contracts for the delivery of coconut oil to the petitioners. Those contracts stipulate that any dispute between the parties will
be settled through arbitration under the rules of either the Federation of Oils Seeds and Fats Association (FOSFA) or the National Institute of Oil Seed Products
(NIOP). Because IVO defaulted under the contracts, the petitioners and 15 others, initiated arbitration proceedings abroad, and some have already obtained
arbitration awards against IVO.

On April 8, 1987, IVO filed a complaint for injunction and damages against nineteen (19) foreign coconut oil buyers
including the petitioners, with whom its president, Dominador Monteverde, had entered into contracts for the delivery
of coconut oil (Civil Case No. 87-40166, RTC Manila entitled "Imperial Vegetable Oil Co., Inc. vs. Dial Corporation et
al."). IVO repudiated Monteverde's contracts on the grounds that they were mere "paper trading in futures" as no
actual delivery of the coconut oil was allegedly intended by the parties; that the Board of Directors of IVO convened
in a special meeting on March 21, 1987 and removed Dominador Monteverde from his position as president of the
corporation, named in his place, Rodrigo Monteverde, and disowned Dominador Monteverde's allegedly illegal and
unauthorized acts; that the defendants have allegedly "harassed" IVO to comply with Dominador's contracts and to
come to a settlement with them. IVO prayed for the issuance of a temporary restraining order or writ of preliminary
injunction to stop the defendants from harassing IVO with their insistent demands to recognize the contracts entered
into by Dominador Monteverde and from portraying the IVO as one that defaults on its contracts and obligations and
has fallen into bad times and from interfering with IVO's normal conduct of business. IVO also prayed that the
defendants pay it moral damages of P5 million, actual damages of P10 million, exemplary damages of P5 million,
attorney's fees of P1 million, P3,000 per appearance of counsel, and litigation expenses.

On motion of IVO, respondent Judge authorized it to effect extraterritorial service of summons to all the defendants
through DHL Philippines corporation (Annex B). Pursuant to that order, the petitioners were served with summons
and copy of the complaint by DHL courier service.

On April 25, 1987, without submitting to the court's jurisdiction and only for the purpose of objecting to said
jurisdiction over their persons, the petitioners filed motions to dismiss the complaint against them on the ground that
the extraterritorial service of summons to them was improper and that hence the court did not acquire jurisdiction
over them. On December 15, 1987, the court denied their motions to dismiss and upheld the validity of the
extraterritorial service of summons to them on the ground that "the present action relates to property rights which lie
in contracts within the Philippines, or which defendants claim liens or interests, actual or inchoate, legal or equitable
(par. 2, complaint). And one of the reliefs demanded consists, wholly or in part, in excluding the defendants from any
interest in such property for the reason that their transactions with plaintiff's former president are ultra vires."
Furthermore, "as foreign corporations doing business in the Philippines without a license, they opened themselves
to suit before Philippine courts, pursuant to Sec. 133 of the Corporation Code of the Philippines." (Annex H) The
petitioners' motions for reconsideration of that order were also denied by the court (Annex M), hence this petition for
certiorari with a prayer for the issuance of a temporary retraining order which We granted.

The petition is meritorious.

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

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

Only in four (4) instances is extraterritorial service of summons proper, namely: "(1) when the action affects the
personal status of the plaintiffs; (2) when the action relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) when the relief
demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located
in the Philippines; and (4) when the defendant non-resident's property has been attached within the Philippines" (De
Midgely vs. Fernandos, 64 SCRA 23).

The complaint in this case does not involve the personal status of the plaintiff, nor any property in the Philippines in
which the defendants have or claim an interest, or which the plaintiff has attached. The action is purely an action for
injunction to restrain the defendants from enforcing against IVO ("abusing and harassing") its contracts for the
delivery of coconut oil to the defendants, and to recover from the defendants P21 million in damages for such
"harassment." It is clearly a personal action as well as an action in personam, not an action in rem or quasi in
rem. "An action in personam is an action against a person on the basis of his personal liability, while an action in
remedies is an action against the thing itself, instead of against the person." (Hernandez vs. Rural Bank of Lucena,
Inc., 76 SCRA 85). A personal action is one brought for the recovery of personal property, for the enforcement of
some contract or recovery of damages for its breach, or for the recovery of damages for the commission of an injury
to the person or property (Hernandez vs. Development Bank of the Philippines, 71 SCRA 292). <äre||anº•1àw>
As Civil Case No. 87-40166 is a personal action, personal or substituted service of summons on the defendants, not
extraterritorial service, is necessary to confer jurisdiction on the court. The rule is explained in Moran's Comments
on the Rules of Court thus:

As a general rule, when the defendant is not residing and is not found in the Philippines, the
Philippine courts cannot try any case against him because of the impossibility of acquiring
jurisdiction over his person unless he voluntarily appears in court. But, when the action affects the
personal status of the plaintiff residing in the Philippines, or is intended to seize or dispose of any
property, real or personal, of the defendant located in the Philippines, it may be validly tried by the
Philippine courts, for then, they have jurisdiction over the res, i.e., the personal status of the plaintiff
or the property of the defendant and their jurisdiction over the person of the non-resident defendant
is not essential. Venue in such cases may be laid in the province where the property of the
defendant or a part thereof involved in the litigation is located. (5 Moran's Comments on the Rules of
Court, 2nd Ed., p. 105.)

In an action for injunction, extraterritorial service of summons and complaint upon the non-resident defendants
cannot subject them to the processes of the regional trial courts which are powerless to reach them outside the
region over which they exercise their authority (Sec. 3-a, Interim Rules of Court; Sec. 21, subpar. 1, B.P. Blg. 129).
Extraterritorial service of summons will not confer on the court jurisdiction or power to compel them to obey its
orders.

Neither may the court by extraterritorial service of summons acquire jurisdiction to render and enforce a money
judgment against a non-resident defendant who has no property in the Philippines for "the fundamental rule is that
jurisdiction in personam over non-residents, so as to sustain a money judgment, must be based upon personal
service within the state which renders the judgment "(Boudard vs. Tait, 67 Phil. 170, 174).

Respondents' contention that "the action below is related to property within the Philippines, specifically contractual
rights that petitioners are enforcing against IVO" is specious for the "contractual rights" of the petitioners are not
property found in the Philippines for the petitioners have not filed an action in the local courts to enforce said rights.
They have not submitted to the jurisdiction of our courts.

The lower court invoked Section 33 of the Corporation Code which provides that a "foreign corporation transacting
business in the Philippines without a license may be sued or proceeded against before Philippine courts or
administrative tribunal on any valid cause of action recognized under Philippine laws." It assumed that the
defendants (herein petitioners) are doing business in the Philippines, which allegation the latter denied. Even if they
can be considered as such, the Corporation Code did not repeal the rules requiring proper service of summons to
such corporations as provided in Rule 14 of the Rules of Court and Section 128 of the Corporation Code.

The respondent court's finding that, by filing motions to dismiss, the petitioners hypothetically admitted the
allegations of the complaint that they are doing business in the Philippines without any license, and that they may be
served with summons and other court processes through their agents or representatives enumerated in paragraph 2
of the complaint, is contradicted by its order authorizing IVO to summon them by extraterritorial service, a mode of
service which is resorted to when the defendant is not found in the Philippines, does not transact business here, and
has no resident agent on whom the summons may be served.

WHEREFORE, We hold that the extraterritorial service of summons on the petitioners was improper, hence null and
void. The petition for certiorari is granted.

The orders dated April 24, 1987 (Annex B) and December 15, 1987 (Annex H) of the respondent Judge are hereby
set aside. The complaint in Civil Case No. 87-40166 is hereby dismissed as against the petitioners for failure of the
court to acquire jurisdiction over them.

SO ORDERED.

Narvasa, Cruz and Gancayco, JJ., concur.

- Republic vs. Elepano GR No. 92542, October 15, 1991

REPUBLIC OF THE PHILIPPINES, petitioner, vs.

HON. ZENAIDA ELEPANO, Presiding Judge of RTC Kalookan, Branch 128 and CORAZON SANTOS
PUNSALAN, respondents.

The Solicitor General for petitioner.

Anthony L. Po for private respondent.

PARAS, J.:
On January 3, 1990, private respondent Corazon Santos Punsalan filed a verified petition for adoption before the
Regional Trial Court of Caloocan City, Branch CXXVIII praying that after due notice and hearing, the minors Pinky
Gonzales Punsalan, the daughter of her full blood brother, and Ellyn Mae Punsalan Urbano, the daughter of her full
blood sister, be declared her daughters by adoption for all intents and purposes.

On January 5, 1990, however, private respondent filed a "MOTION FOR TAKING OF DEPOSITION" on the ground
that she received an urgent call from the United Nations Office in Geneva, Switzerland requiring her to report for
work on January 17, 1990, so much so that she will not be able to testify at the hearing of her petition yet to be
scheduled by the respondent judge.

On January 8, 1990, the respondent judge granted the motion and ordered that notice of the taking of the deposition
on January 12, 1990 at 10:00 a.m. be furnished to the OSG (the only known oppositor in the case). On the same
date, the respondent judge issued an order setting the hearing for the petition for adoption on February 27, 1990 at
10:00 a.m. and directed the publication of the said order once a week for three (3) consecutive weeks in a
newspaper of general circulation in Metro Manila. A copy of said order as well as a copy of the said petition for
adoption was likewise sent to the OSG.

On January 12, 1990, private respondent's deposition was taken. Despite notice, no representative from the OSG
appeared to oppose the taking of the deposition.

The OSG, however, subsequently filed an "Opposition to the Deposition", averring that Section 1 of Rule 24 of the
Rules of Court allows deposition by leave of Court after jurisdiction has been obtained over any defendant or
property subject of the action. Since the jurisdictional requirement of publication has not been complied with, the
OSG goes on to argue, the lower court had not yet acquired jurisdiction over the defendant so much so that the
taking of the deposition cannot yet be allowed at this stage.

On February 14, 1990, the respondent judge denied the said Opposition.

Meanwhile, on February 27, 1990, after the notice of the hearing for the petition for adoption had been duly
published in The Manila Chronicle in accordance with law (Exhibits "P", "Q", "R", "S" and "T"), counsel for private
respondent presented evidence consisting of testimonies of witnesses and documentary exhibits, showing: that
private respondent is a resident of Caloocan City, but is presently residing at 36 Avenue del Tilleuis, 1203 Geneva,
Switzerland where she is employed by the United Nations as Statistical Assistant with a monthly salary of 7,500
Swiss Francs (Exh. "K"); that she seeks to adopt as her children the minors Pinky Gonzales Punsalan and Ellyn
Mae Punsalan Urbano who are her nieces of the full blood; that she has been taking care of said minors for the past
several years by way of giving them moral, material and spiritual support; that they have grown to love each other;
that the parents by nature of the said minors as well as the minors themselves have given their consent to the
adoption (Exhs. "G", "H", "I" and "J"); and that the Department of Social Welfare and Development social worker has
favorably recommended the adoption.

Again, despite notice, the OSG failed to appear in the said hearing and in all the subsequent hearings for the
petition for adoption.

On July 12, 1990, the respondent judge granted the petition for adoption (p. 99, Rollo).

The OSG filed a motion for reconsideration of the aforesaid decision but the respondent judge denied the same.

Hence, the instant petition for certiorari.

In brief, the argument of the OSG is that depositions should not be allowed in adoption proceedings until the
publication requirement has been fully complied with. In support of its position, the OSG cites Rule 24 Section 1 of
the Rules of Court, which provides —

Section 1. Depositions pending action, when may be taken. — By leave of court after jurisdiction has been
obtained over any defendant or over property which is the subject of the action, or without such leave after
an answer has been served, the testimony of any person, whether a party or not, may be taken, at the
instance of any party, by deposition upon oral examination or written interrogatories. (emphasis supplied)

The petition has no merit.

The rule cited by the OSG is inapplicable to the case at bar.

While it is true that in an action in personam, personal service of summons within the forum or voluntary appearance
in the case is essential for the court to acquire jurisdiction over the person of the defendant, in an adoption case
which involves the status of a person, there is no particular defendant to speak of since the action is one in rem. In
such case, jurisdiction over the person of the defendant is a non-essential condition for the taking of a deposition for
the jurisdiction of the court is based on its power over the res, to render judgment with respect to such "thing" (or
status, as in this case) so as to bar indifferently all who might be minded to make an objection against the right so
established. (Banco Espanol Filipino vs. Palanca, 37 Phil. 921; Greg Alba vs. de la Cruz, 17 Phil. 49).
Indeed, publication of the scheduled hearing for the petition for adoption is necessary for the validity of a decree of
adoption but not for the purpose merely of taking a deposition. In taking a deposition, no substantial rights are
affected since depositions may or may not be presented or may even be objected to when formally offered as
evidence at the trial of the main case later on.

In the instant case, We find no abuse of discretion committed by the respondent judge in allowing the taking of
private respondent's deposition. Due to urgent and compelling reasons beyond her control, private respondent could
not be present to testify at the trial of the main case for adoption. The OSG, however, was notified of the scheduled
taking of the deposition, as well as of all the hearings of the petition for adoption, but the OSG chose not to
attend ALL the said hearings, without explanation. The OSG, therefore, has no reason to invoke lack of procedural
due process.

Finally, it must not be forgotten that the philosophy behind adoption statutes is to promote the welfare of the child
and every reasonable intendment should be sustained to promote that objective. (Santos et al. vs. Aranzanso, et al.
16 SCRA 353). In the instant case, the record shows that private respondent's adoption of the minors shall redound
to the best interests of the latter.

WHEREFORE, the petition is hereby DISMISSED for lack of merit.

SO ORDERED.

Padilla and Regalado, JJ., concur.

Melencio-Herrera, J., is on leave.

Ways of Disposing of Conflict Cases

1. Refusal to assume Jurisdiction: The Principle of Forum Non Conveniens
2. Assuming Jurisdiction and Application of Internal or Domestic Law
a. Application of Internal Law is Decreed
b. Failure to Plead and Prove Foreign Law
c. Exceptions to the Application of Foreign Law

Cases:
- Paula T. Llorente v. Court of Appeals, G.R. No. 124371, November 23, 2000

PAULA T. LLORENTE, petitioner, vs.

COURT OF APPEALS and ALICIA F. LLORENTE, respondents.

DECISION

PARDO, J.:

The Case

The case raises a conflict of laws issue.

What is before us is an appeal from the decision of the Court of Appeals modifying that of the Regional Trial Court,
1

Camarines Sur, Branch 35, Iriga City declaring respondent Alicia F. Llorente (herinafter referred to as "Alicia"), as
2

co-owners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as "Lorenzo")
may have acquired during the twenty-five (25) years that they lived together as husband and wife.

The Facts

The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to
September 30, 1957. 3

On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula") were married
before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur. 4

Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal
home in barrio Antipolo, Nabua, Camarines Sur. 5

On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No.
5579816 was issued in his favor by the United States District Court, Southern District of New York. 6

Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by
the U. S. Navy, to visit his wife and he visited the Philippines. He discovered that his wife Paula was pregnant and
7

was "living in" and having an adulterous relationship with his brother, Ceferino Llorente. 8

On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as "Crisologo
Llorente," with the certificate stating that the child was not legitimate and the line for the father’s name was left
blank.9

Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written
agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzo’s
salary and all other obligations for Paula’s daily maintenance and support would be suspended; (2) they would
dissolve their marital union in accordance with judicial proceedings; (3) they would make a separate agreement
regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for
her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo peacefully. The
agreement was signed by both Lorenzo and Paula and was witnessed by Paula’s father and stepmother. The
agreement was notarized by Notary Public Pedro Osabel. 10

Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the
State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively
participated in the proceedings. On November 27, 1951, the Superior Court of the State of California, for the County
of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce. 11

On December 4, 1952, the divorce decree became final. 12

In the meantime, Lorenzo returned to the Philippines.

On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. Apparently, Alicia had no knowledge of the first
13

marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation. 14

From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. Their twenty-five (25) year union
15

produced three children, Raul, Luz and Beverly, all surnamed Llorente. 16

On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador
M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano.
In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit:

"(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San
Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties and other movables or
belongings that may be found or existing therein;

"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F.
Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located,
specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua,
Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong,
Nabua, Camarines Sur;

"(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F. Llorente,
Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City Philippines, and
covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by
Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal,
Philippines;

"(4) That their respective shares in the above-mentioned properties, whether real or personal properties, shall not be
disposed of, ceded, sold and conveyed to any other persons, but could only be sold, ceded, conveyed and disposed
of by and among themselves;

"(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her
default or incapacity of the latter to act, any of my children in the order of age, if of age;

"(6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond;

"(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or
published, by me;

"(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorente’s Side should ever
bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children with respect to any real or
personal properties I gave and bequeathed respectively to each one of them by virtue of this Last Will and
Testament." 17

On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate
and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix
of his estate.
18

On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive. 19

On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate. 20

On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21

On September 4, 1985, Paula filed with the same court a petition for letters of administration over Lorenzo’s estate
22

in her favor. Paula contended (1) that she was Lorenzo’s surviving spouse, (2) that the various property were
acquired during their marriage, (3) that Lorenzo’s will disposed of all his property in favor of Alicia and her children,
encroaching on her legitime and 1/2 share in the conjugal property. 23

On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance of
letters testamentary.24

On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paula’s petition
in Sp. Proc. No. IR-888. 25

On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star". 26

On May 18, 1987, the Regional Trial Court issued a joint decision, thus:

"Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo Llorente is
void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16,
1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters
testamentary is denied. Likewise, she is not entitled to receive any share from the estate even if the will especially
said so her relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1).

"On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic
disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled as conjugal
partner and entitled to one-half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is
also entitled to one-third of the estate and then one-third should go to the illegitimate children, Raul, Luz and
Beverly, all surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining free
portion in equal shares.

"Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such
let the corresponding letters of administration issue in her favor upon her filing a bond in the amount (sic) of
P100,000.00 conditioned for her to make a return to the court within three (3) months a true and complete inventory
of all goods, chattels, rights, and credits, and estate which shall at any time come to her possession or to the
possession of any other person for her, and from the proceeds to pay and discharge all debts, legacies and charges
on the same, or such dividends thereon as shall be decreed or required by this court; to render a true and just
account of her administration to the court within one (1) year, and at any other time when required by the court and
to perform all orders of this court by her to be performed.

"On the other matters prayed for in respective petitions for want of evidence could not be granted.
"SO ORDERED." 27

In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision. 28

On September 14, 1987, the trial court denied Alicia’s motion for reconsideration but modified its earlier decision,
stating that Raul and Luz Llorente are not children "legitimate or otherwise" of Lorenzo since they were not legally
adopted by him. Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only
29

illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and one-third (1/3) of the free portion of the
estate.30

On September 28, 1987, respondent appealed to the Court of Appeals. 31

On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial
court in this wise:

"WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared
as co-owner of whatever properties she and the deceased may have acquired during the twenty-five (25) years of
cohabitation.

"SO ORDERED." 32

On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision. 33

On March 21, 1996, the Court of Appeals, denied the motion for lack of merit.
34

Hence, this petition. 35

The Issue

Stripping the petition of its legalese and sorting through the various arguments raised, the issue is simple. Who are
36

entitled to inherit from the late Lorenzo N. Llorente?

We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the
intrinsic validity of the will of the deceased.

The Applicable Law

The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce
from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted and
undisputed.

Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.

The Civil Code clearly provides:

"Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even though living abroad.

"Art. 16. Real property as well as personal property is subject to the law of the country where it is situated.

"However, intestate and testamentary succession, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law
of the person whose succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found." (emphasis ours)

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial
notice of them. Like any other fact, they must be alleged and proved. 37

While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of
Appeals and the trial court called to the fore the renvoi doctrine, where the case was "referred back" to the law of the
decedent’s domicile, in this case, Philippine law.

We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it
made the categorical, albeit equally unproven statement that "American law follows the ‘domiciliary theory’ hence,
Philippine law applies when determining the validity of Lorenzo’s will. 38
First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot
1ªwph!1

possibly apply to general American law. There is no such law governing the validity of testamentary provisions in the
United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It
can therefore refer to no other than the law of the State of which the decedent was a resident. Second, there is no
39

showing that the application of the renvoi doctrine is called for or required by New York State law.

The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the
trial court’s opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul
and Luz, with nothing.

The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she
and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines.

The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in
accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal
circumstances here obtaining.

Validity of the Foreign Divorce

In Van Dorn v. Romillo, Jr. we held that owing to the nationality principle embodied in Article 15 of the Civil Code,
40

only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to
our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad,
provided they are valid according to their national law.

Citing this landmark case, the Court held in Quita v. Court of Appeals, that once proven that respondent was no
41

longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become
applicable and petitioner could "very well lose her right to inherit" from him.

In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his country, the Federal
42

Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines
insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons.

For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. We hold that the divorce
43

obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of
comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to
the determination of the trial court.

Validity of the Will

The Civil Code provides:

"Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws
of the country in which they are executed.

"When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines
in a foreign country, the solemnities established by Philippine laws shall be observed in their execution."
(underscoring ours)

The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the
will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on
"family rights and duties, status, condition and legal capacity."44

Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which
must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered
by referring to Philippine law. In fact, the will was duly probated.

As a guide however, the trial court should note that whatever public policy or good customs may be involved in our
system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress
specifically left the amount of successional rights to the decedent's national law. 45

Having thus ruled, we find it unnecessary to pass upon the other issues raised.

The Fallo

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446
promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the
decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of
California in and for the County of San Diego, made final on December 4, 1952.

Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N.
Llorente’s will and determination of the parties’ successional rights allowing proof of foreign law with instructions that
the trial court shall proceed with all deliberate dispatch to settle the estate of the deceased within the framework of
the Rules of Court.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

- Imelda Marcos v. COMELEC, G.R. No. 119976, September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner, vs.

COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the mischief at which it
is aimed. The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a
1

registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one
year immediately preceding the election." The mischief which this provision — reproduced verbatim from the 1973
2

Constitution — seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and
needs of a community and not identified with the latter, from an elective office to serve that community." 3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First
District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following information in item
no. 8:
4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY

PRECEDING THE ELECTION: __________ Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of
Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification" with the
5

Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In his
petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency requirement
for candidates for the House of Representatives on the evidence of declarations made by her in Voter Registration
Record 94-No. 3349772 and in her Certificate of Candidacy. He prayed that "an order be issued declaring
6

(petitioner) disqualified and canceling the certificate of candidacy."

7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven"
months to "since childhood" in item no. 8 of the amended certificate. On the same day, the Provincial Election
8

Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that
it is filed out of time, the deadline for the filing of the same having already lapsed on March 20, 1995.
The Corrected/Amended Certificate of Candidacy should have been filed on or before the March 20,
1995 deadline. 9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in
Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head
office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original
Certificate of Candidacy was the result of an "honest misinterpretation" which she sought to rectify by adding the
10

words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always maintained
Tacloban City as her domicile or residence. Impugning respondent's motive in filing the petition seeking her
11

disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to register as a voter in
Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed her
intended registration by writing a letter stating that "she is not a resident of said city but of Barangay
Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of her
six month actual residence therein, petitioner filed a petition with the COMELEC to transfer the town
of Tolosa from the First District to the Second District and pursued such a move up to the Supreme
 Court, his purpose being to remove respondent as petitioner's opponent in the congressional
election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking the
creation of another legislative district to remove the town of Tolosa out of the First District, to achieve
his purpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner
now filed the instant petition for the same objective, as it is obvious that he is afraid to submit along
with respondent for the judgment and verdict of the electorate of the First District of Leyte in an
honest, orderly, peaceful, free and clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, came up 13

with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking
off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original
Certificate of Candidacy. Dealing with two primary issues, namely, the validity of amending the original Certificate
14

of Candidacy after the lapse of the deadline for filing certificates of candidacy, and petitioner's compliance with the
one year residency requirement, the Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months)
was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She averred that she thought that what was asked
was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the First
Legislative District, to which she could have responded "since childhood." In an accompanying
affidavit, she stated that her domicile is Tacloban City, a component of the First District, to which she
always intended to return whenever absent and which she has never abandoned. Furthermore, in
her memorandum, she tried to discredit petitioner's theory of disqualification by alleging that she has
been a resident of the First Legislative District of Leyte since childhood, although she only became a
resident of the Municipality of Tolosa for seven months. She asserts that she has always been a
resident of Tacloban City, a component of the First District, before coming to the Municipality of
Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announced
that she would be registering in Tacloban City so that she can be a candidate for the District.
However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban not to
allow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this claim
and instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, the
Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite
aware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did not
cite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was asked
was her actual and physical presence in Tolosa is not easy to believe because there is none in the
question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks
clearly of "Residency in the CONSTITUENCY where I seek to be elected immediately preceding the
election." Thus, the explanation of respondent fails to be persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is

devoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the case
of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced.
The case only applies to the "inconsequential deviations which cannot affect the result of the
election, or deviations from provisions intended primarily to secure timely and orderly conduct of
elections." The Supreme Court in that case considered the amendment only as a matter of form. But
in the instant case, the amendment cannot be considered as a matter of form or an inconsequential
deviation. The change in the number of years of residence in the place where respondent seeks to
be elected is a substantial matter which determines her qualification as a candidacy, specially those
intended to suppress, accurate material representation in the original certificate which adversely
affects the filer. To admit the amended certificate is to condone the evils brought by the shifting
minds of manipulating candidate, of the detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her residency in order to
prolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed before
this Commission. The arithmetical accuracy of the 7 months residency the respondent indicated in
her certificate of candidacy can be gleaned from her entry in her Voter's Registration Record
accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte
for 6 months at the time of the said registration (Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of San Juan, Metro Manila, dated August 24, 1994,
requesting for the cancellation of her registration in the Permanent List of Voters thereat so that she
can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different
documents show the respondent's consistent conviction that she has transferred her residence to
Olot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of
August 1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore,
cannot be persuaded to believe in the respondent's contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this
Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not
complied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with "domicile"
which imports not only the intention to reside in a fixed place but also personal presence in-that
place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent
residence to which when absent for business or pleasure, or for like reasons, one intends to return.
(Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In
respondent's case, when she returned to the Philippines in 1991, the residence she chose was not
Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is pointed to Metro Manila and
not Tacloban.

This Division is aware that her claim that she has been a resident of the First District since childhood
is nothing more than to give her a color of qualification where she is otherwise constitutionally
disqualified. It cannot hold ground in the face of the facts admitted by the respondent in her affidavit.
Except for the time that she studied and worked for some years after graduation in Tacloban City,
she continuously lived in Manila. In 1959, after her husband was elected Senator, she lived and
resided in San Juan, Metro Manila where she was a registered voter. In 1965, she lived in San
Miguel, Manila where she was again a registered voter. In 1978, she served as member of the
Batasang Pambansa as the representative of the City of Manila and later on served as the Governor
of Metro Manila. She could not have served these positions if she had not been a resident of the City
of Manila. Furthermore, when she filed her certificate of candidacy for the office of the President in
1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact on August 24,
1994, respondent wrote a letter with the election officer of San Juan, Metro Manila requesting for the
cancellation of her registration in the permanent list of voters that she may be re-registered or
transferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she could not have been a
resident of Tacloban City since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places, including Metro Manila. This debunks her claim that
prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leyte
since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. She
registered as a voter in different places and on several occasions declared that she was a resident
of Manila. Although she spent her school days in Tacloban, she is considered to have abandoned
such place when she chose to stay and reside in other different places. In the case of Romualdez
vs. RTC (226 SCRA 408) the Court explained how one acquires a new domicile by choice. There
must concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and
(3) intention to abandon the old domicile. In other words there must basically be animus
manendi with animus non revertendi. When respondent chose to stay in Ilocos and later on in
Manila, coupled with her intention to stay there by registering as a voter there and expressly
declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City,
where she spent her childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of
such intention. Respondent's statements to the effect that she has always intended to return to
Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice
of residence. Respondent has not presented any evidence to show that her conduct, one year prior
the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to her
residence in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a resident of the First District of Leyte "since
childhood."

To further support the assertion that she could have not been a resident of the First District of Leyte
for more than one year, petitioner correctly pointed out that on January 28, 1995 respondent
registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter
Registration Record that she resided in the municipality of Tolosa for a period of six months. This
may be inconsequential as argued by the respondent since it refers only to her residence in Tolosa,
Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her
 residence in Tolosa leaves nothing but a convincing proof that she had been a resident of the district
for six months only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's
Motion for Reconsideration of the April 24, 1995 Resolution declaring her not qualified to run for the position of
16

Member of the House of Representatives for the First Legislative District of Leyte. The Resolution tersely stated:
17

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no
new substantial matters having been raised therein to warrant re-examination of the resolution
granting the petition for disqualification.18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the
canvass show that she obtained the highest number of votes in the congressional elections in the First District of
Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution directing that the
proclamation of petitioner be suspended in the event that she obtains the highest number of votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the
elections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completed
by the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she
obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of
Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified
into two general areas:

I. The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a
period of one year at the time of the May 9, 1995 elections.

II. The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside
the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the
said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over
the question of petitioner's qualifications after the May 8, 1995 elections.

I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of
settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with
the general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution
reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended
for the purpose of determining a candidate's qualifications for election to the House of Representatives as required
by the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position,
has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is their place of habitual residence." In Ong vs. Republic this court took the concept of
20

domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose
intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in
21

a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the
physical presence of a person in a given area, community or country. The essential distinction between residence
and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken
up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be
to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is
22
thus, quite perfectly normal for an individual to have different residences in various places. However, a person can
only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another
domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:
23

There is a difference between domicile and residence. "Residence" is used to indicate a place of
abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which,
when absent, one has the intention of returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to
remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but
he may have numerous places of residence. His place of residence is generally his place of
domicile, but it is not by any means necessarily so since no length of residence without intention of
remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As
these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that
residence for election purposes is used synonymously with domicile.

In Nuval vs. Guray, the Court held that "the term residence. . . is synonymous with domicile which imports not only
24

intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such
intention." Larena vs. Teves reiterated the same doctrine in a case involving the qualifications of the respondent
25 26

therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, held that the
27

absence from residence to pursue studies or practice a profession or registration as a voter other than in the place
where one is elected does not constitute loss of residence. So settled is the concept (of domicile) in our election
28

law that in these and other election law cases, this Court has stated that the mere absence of an individual from his
permanent residence without the intention to abandon it does not result in a loss or change of domicile.

The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed
beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only
"domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there
was an attempt to require residence in the place not less than one year immediately preceding the
day of the elections. So my question is: What is the Committee's concept of residence of a candidate
for the legislature? Is it actual residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are
concerned, the proposed section merely provides, among others, "and a resident thereof", that is, in
the district for a period of not less than one year preceding the day of the election. This was in effect
lifted from the 1973 Constitution, the interpretation given to it was domicile.29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has
raised the same point that "resident" has been interpreted at times as a matter of intention rather
than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual
residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in
the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by
law. So, we have to stick to the original concept that it should be by domicile and not physical
residence. 30

In Co vs. Electoral Tribunal of the House of Representatives, this Court concluded that the framers of the 1987
31

Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having
the same meaning as domicile. 32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency
requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry in
petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as seven (7)
months?

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining
whether or not and individual has satisfied the constitution's residency qualification requirement. The said statement
becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and
knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in the
space provided for the residency qualification requirement. The circumstances leading to her filing the questioned
entry obviously resulted in the subsequent confusion which prompted petitioner to write down the period of her
actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was "since childhood" in the
space provided. These circumstances and events are amply detailed in the COMELEC's Second Division's
questioned resolution, albeit with a different interpretation. For instance, when herein petitioner announced that she
would be registering in Tacloban City to make her eligible to run in the First District, private respondent Montejo
opposed the same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered in
her place of actual residence in the First District, which is Tolosa, Leyte, a fact which she subsequently noted down
in her Certificate of Candidacy. A close look at said certificate would reveal the possible source of the confusion: the
entry for residence (Item No. 7) is followed immediately by the entry for residence in the constituency where a
candidate seeks election thus:

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO

BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months.

Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner's
claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The
juxtaposition of entries in Item 7 and Item 8 — the first requiring actual residence and the second requiring domicile
— coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her
writing down an unintended entry for which she could be disqualified. This honest mistake should not, however, be
allowed to negate the fact of residence in the First District if such fact were established by means more convincing
than a mere entry on a piece of paper.

We now proceed to the matter of petitioner's domicile.

In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the Second
Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when
(petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila."
The Resolution additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be any place
where she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in
1959, resided in San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election
of her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In 1978 and
thereafter, she served as a member of the Batasang Pambansa and Governor of Metro Manila. "She could not,
have served these positions if she had not been a resident of Metro Manila," the COMELEC stressed. Here is where
the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and
maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given
place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do
other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by
the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the time she filed
her certificate of candidacy because she became a resident of many places" flies in the face of settled jurisprudence
in which this Court carefully made distinctions between (actual) residence and domicile for election law purposes.
In Larena vs. Teves, supra, we stressed:
33

[T]his court is of the opinion and so holds that a person who has his own house wherein he lives with
his family in a municipality without having ever had the intention of abandoning it, and without having
lived either alone or with his family in another municipality, has his residence in the former
municipality, notwithstanding his having registered as an elector in the other municipality in question
and having been a candidate for various insular and provincial positions, stating every time that he is
a resident of the latter municipality.

More significantly, in Faypon vs. Quirino, We explained that:

34

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to
improve his lot, and that, of course includes study in other places, practice of his avocation, or
engaging in business. When an election is to be held, the citizen who left his birthplace to improve
his lot may desire to return to his native town to cast his ballot but for professional or business
reasons, or for any other reason, he may not absent himself from his professional or business
activities; so there he registers himself as voter as he has the qualifications to be one and is not
willing to give up or lose the opportunity to choose the officials who are to run the government
 especially in national elections. Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin has not forsaken him. This may be the explanation why the
registration of a voter in a place other than his residence of origin has not been deemed sufficient to
constitute abandonment or loss of such residence. It finds justification in the natural desire and
longing of every person to return to his place of birth. This strong feeling of attachment to the place
of one's birth must be overcome by positive proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner
was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously
referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled
jurisprudence on residence in election law and the deliberations of the constitutional commission but also the
provisions of the Omnibus Election Code (B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we
lift verbatim from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to
1949 when she graduated from high school. She pursued her college studies in St. Paul's College,
now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, she
taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work with
her cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In
1954, she married ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos
Norte and registered there as a voter. When her husband was elected Senator of the Republic in
1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In
1965, when her husband was elected President of the Republic of the Philippines, she lived with him
in Malacanang Palace and registered as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu,
Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a
resident and registered voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held
various residences for different purposes during the last four decades. None of these purposes unequivocally point
to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila,
as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her adulthood there
and eventually established residence in different parts of the country for various reasons. Even during her husband's
presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin by
establishing residences in Tacloban, celebrating her birthdays and other important personal milestones in her home
province, instituting well-publicized projects for the benefit of her province and hometown, and establishing a
political power base where her siblings and close relatives held positions of power either through the ballot or by
appointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are part
of the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in the
COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew:
the fact of petitioner's domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she did
not live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her
residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely
expressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it
follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by
operation of law. This domicile was not established only when her father brought his family back to Leyte contrary to
private respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing a new one;
and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to
continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or
residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot
have two legal residences at the same time. In the case at bench, the evidence adduced by private respondent
38

plainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin
in favor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of
relinquishing petitioner's former domicile with an intent to supplant the former domicile with one of her own choosing
(domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a
result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established
distinction between the Civil Code concepts of "domicile" and "residence." The presumption that the wife
39

automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the
term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well
delineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply
relations between a person and a place; but in residence, the relation is one of fact while in domicile
it is legal or juridical, independent of the necessity of physical presence.40

Article 110 of the Civil Code provides:

Art. 110. — The husband shall fix the residence of the family. But the court may exempt the wife
from living with the husband if he should live abroad unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female
spouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile
of origin in favor of the husband's choice of residence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin
embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su
residencia a ultramar o' a pais extranjero .

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever
(the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence
because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further
strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "when
the husband shall transfer his residence," referring to another positive act of relocating the family to another home
or place of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only
once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the
concept of actual residence.

The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and
unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of
origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single
place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND
OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges
the husband and wife to live together, thus:

Art. 109. — The husband and wife are obligated to live together, observe mutual respect and fidelity
and render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account
the situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay in
or transfer to any one of their residences, the wife should necessarily be with him in order that they may "live
together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we
shall be faced with a situation where the wife is left in the domicile while the husband, for professional or other
reasons, stays in one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile — Whether the word "residence" as used with reference to particular
matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision
must be made from a consideration of the purpose and intent with which the word is used.
Sometimes they are used synonymously, at other times they are distinguished from one another.

xxx xxx xxx

 Residence in the civil law is a material fact, referring to the physical presence of a person in a place.
A person can have two or more residences, such as a country residence and a city residence.
Residence is acquired by living in place; on the other hand, domicile can exist without actually living
in the place. The important thing for domicile is that, once residence has been established in one
place, there be an intention to stay there permanently, even if residence is also established in some
other
place. 41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not an
iron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence, our
jurisprudence has recognized certain situations where the spouses could not be compelled to live with each other
42

such that the wife is either allowed to maintain a residence different from that of her husband or, for obviously
practical reasons, revert to her original domicile (apart from being allowed to opt for a new one). In De la Vina
vs. Villareal this Court held that "[a] married woman may acquire a residence or domicile separate from that of her
43

husband during the existence of the marriage where the husband has given cause for divorce." Note that the Court
44

allowed the wife either to obtain new residence or to choose a new domicile in such an event. In instances where
the wife actually opts, .under the Civil Code, to live separately from her husband either by taking new residence or
reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her husband
on pain of contempt. In Arroyo vs. Vasques de Arroyo the Court held that:
45

Upon examination of the authorities, we are convinced that it is not within the province of the courts
of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to,
the other. Of course where the property rights of one of the pair are invaded, an action for restitution
of such rights can be maintained. But we are disinclined to sanction the doctrine that an order,
enforcible (sic) by process of contempt, may be entered to compel the restitution of the purely
personal right of consortium. At best such an order can be effective for no other purpose than to
compel the spouses to live under the same roof; and he experience of those countries where the
courts of justice have assumed to compel the cohabitation of married people shows that the policy of
the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court
entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if
the facts were found to warrant it, that court would make a mandatory decree, enforceable by
process of contempt in case of disobedience, requiring the delinquent party to live with the other and
render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound
to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen,
President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his
regret that the English law on the subject was not the same as that which prevailed in Scotland,
where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in
England, could be obtained by the injured spouse, but could not be enforced by imprisonment.
Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights
can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an
order for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has
ever attempted to make a preemptory order requiring one of the spouses to live with the other; and
that was in a case where a wife was ordered to follow and live with her husband, who had changed
his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70)
was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil
Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the
State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by
process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of
the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the
alternative, upon her failure to do so, to make a particular disposition of certain money and effects
then in her possession and to deliver to her husband, as administrator of the ganancial property, all
income, rents, and interest which might accrue to her from the property which she had brought to the
marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to
the marital domicile was sanctioned by any other penalty than the consequences that would be
visited upon her in respect to the use and control of her property; and it does not appear that her
disobedience to that order would necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged — by
virtue of Article 110 of the Civil Code — to follow her husband's actual place of residence fixed by him. The problem
here is that at that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac,
Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's residence. But assuming
that Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained upon marriage was
actual residence. She did not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a
result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To
underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term residence
has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning and
spirit from that found in Article 110. The provision recognizes revolutionary changes in the concept of women's
rights in the intervening years by making the choice of domicile a product of mutual agreement between the
spouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code)
and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the
rights and obligations of husband and wife — the term residence should only be interpreted to mean "actual
residence." The inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when
petitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, not
a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only
acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country
clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by
operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the
PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in
Olot, Leyte. . . to make them livable for the Marcos family to have a home in our homeland." Furthermore,
47

petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act
which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have
gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals.
Her "homes" and "residences" following her arrival in various parts of Metro Manila merely qualified as temporary or
"actual residences," not domicile. Moreover, and proceeding from our discussion pointing out specific situations
where the female spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the
marriage, it would be highly illogical for us to assume that she cannot regain her original domicile upon the death of
her husband absent a positive act of selecting a new one where situations exist within the subsistence of the
marriage itself where the wife gains a domicile different from her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are
persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's
claim of legal residence or domicile in the First District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions
were rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the Omnibus
Election Code. Moreover, petitioner contends that it is the House of Representatives Electoral Tribunal and not the
48

COMELEC which has jurisdiction over the election of members of the House of Representatives in accordance with
Article VI Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to
be merely directory, "so that non-compliance with them does not invalidate the judgment on the theory that if the
49

statute had intended such result it would have clearly indicated it." The difference between a mandatory and a
50

directory provision is often made on grounds of necessity. Adopting the same view held by several American
authorities, this court in Marcelino vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on grounds of
expediency, the reason being that less injury results to the general public by disregarding than
enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of
thirty (30) days within which a decree may be entered without the consent of counsel, it was held
that "the statutory provisions which may be thus departed from with impunity, without affecting the
validity of statutory proceedings, are usually those which relate to the mode or time of doing that
which is essential to effect the aim and purpose of the Legislature or some incident of the essential
act." Thus, in said case, the statute under examination was construed merely to be directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision after
the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts and
other quasi-judicial bodies would then refuse to render judgments merely on the ground of having failed to reach a
decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, it is evident
52

that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under
Section 78 of B.P. 881 even after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge
of all contests relating to the elections, returns and qualifications of members of Congress begins only after a
candidate has become a member of the House of Representatives. Petitioner not being a member of the House of
53

Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or
deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a
distinction was made on such a ground here. Surely, many established principles of law, even of election laws were
flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred ideals, including
the meaning and spirit of EDSA ourselves bending established principles of principles of law to deny an individual
what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the
past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat
in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April
24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order
the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of the First District of
Leyte.

SO ORDERED.

Feliciano, J., is on leave.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are unalike
should be treated unalike in proportion to their unalikeness. Like other candidates, petitioner has clearly met the
1

residence requirement provided by Section 6, Article VI of the Constitution. We cannot disqualify her and treat her
2

unalike, for the Constitution guarantees equal protection of the law. I proceed from the following factual and legal
propositions:

First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in
Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school
and thereafter worked there. I consider Tacloban as her initial domicile, both her domicile of origin and her domicile
of choice. Her domicile of origin as it was the domicile of her parents when she was a minor; and her domicile of
choice, as she continued living there even after reaching the age of majority.

Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E. Marcos. By
contracting marriage, her domicile became subject to change by law, and the right to change it was given by Article
110 of the Civil Code provides:

Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from
living with the husband if he should live abroad unless in the service of the Republic. (Emphasis
3

supplied)

In De la Viña v. Villareal and Geopano, this Court explained why the domicile of the wife ought to follow that
4

of the husband. We held: "The reason is founded upon the theoretic identity of person and interest between
the husband and the wife, and the presumption that, from the nature of the relation, the home of one is the
home of the other. It is intended to promote, strengthen, and secure their interests in this relation, as it
ordinarily exists, where union and harmony prevail." In accord with this objective, Article 109 of the Civil
5

Code also obligated the husband and wife "to live together."

Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone did not
cause her to lose her Tacloban domicile. Article 110 of the Civil Code merely gave the husband the right to fix the
domicile of the family. In the exercise of the right, the husband may explicitly choose the prior domicile of his wife, in
which case, the wife's domicile remains unchanged. The husband can also implicitly acquiesce to his wife's prior
domicile even if it is different. So we held in de la Viña,
6

. . . . When married women as well as children subject to parental authority live, with the
acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have
their own independent domicile. . . .

It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the husband
that will change the domicile of a wife from what it was prior to their marriage. The domiciliary decision made
by the husband in the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any and
 all acts of a wife during her coverture contrary to the domiciliary choice of the husband cannot change in any
way the domicile legally fixed by the husband. These acts are void not only because the wife lacks the
capacity to choose her domicile but also because they are contrary to law and public policy.

In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family domicile and
established it in Batac, Ilocos Norte, where he was then the congressman. At that particular point of time and
throughout their married life, petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has
been fixed by operation of law, it was not affected in 1959 when her husband was elected as Senator, when they
lived in San Juan, Rizal and where she registered as a voter. It was not also affected in 1965 when her husband
was elected President, when they lived in Malacañang Palace, and when she registered as a voter in San Miguel,
Manila. Nor was it affected when she served as a member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila during the incumbency of her husband as President of the nation. Under
Article 110 of the Civil Code, it was only her husband who could change the family domicile in Batac and the
evidence shows he did not effect any such change. To a large degree, this follows the common law that "a woman
on her marriage loses her own domicile and by operation of law, acquires that of her husband, no matter where the
wife actually lives or what she believes or intends." 7

Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former President
Marcos on petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools of
thought contend for acceptance. One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily
relying on American authorities. He echoes the theory that after the husband's death, the wife retains the last
8

domicile of her husband until she makes an actual change.

I do not subscribe to this submission. The American case law that the wife still retains her dead husband's domicile
is based on ancient common law which we can no longer apply in the Philippine setting today. The common law
identified the domicile of a wife as that of the husband and denied to her the power of acquiring a domicile of her
own separate and apart from him. Legal scholars agree that two (2) reasons support this common law doctrine.
9

The first reason as pinpointed by the legendary Blackstone is derived from the view that "the very being or legal
existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the husband." The second reason lies in "the
10

desirability of having the interests of each member of the family unit governed by the same
law." The presumption that the wife retains the domicile of her deceased husband is an extension of this common
11

law concept. The concept and its extension have provided some of the most iniquitous jurisprudence against
women. It was under common law that the 1873 American case of Bradwell v. Illinois was decided where women
12

were denied the right to practice law. It was unblushingly ruled that "the natural and proper timidity and delicacy
which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . This is the law of the
Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS and AM JUR 2d are American state court
13 14

decisions handed down between the years 1917 and 1938, or before the time when women were accorded
15 16

equality of rights with men. Undeniably, the women's liberation movement resulted in far-ranging state legislations in
the United States to eliminate gender inequality. Starting in the decade of the seventies, the courts likewise
17

liberalized their rulings as they started invalidating laws infected with gender-bias. It was in 1971 when the US
Supreme Court in Reed v. Reed, struck a big blow for women equality when it declared as unconstitutional an
18

Idaho law that required probate courts to choose male family members over females as estate administrators. It held
that mere administrative inconvenience cannot justify a sex-based distinction. These significant changes both in law
and in case law on the status of women virtually obliterated the iniquitous common law surrendering the rights of
married women to their husbands based on the dubious theory of the parties' theoretic oneness. The Corpus Juris
Secundum editors did not miss the relevance of this revolution on women's right as they observed: "However, it has
been declared that under modern statutes changing the status of married women and departing from the common
law theory of marriage, there is no reason why a wife may not acquire a separate domicile for every purpose known
to the law." In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable
19

American Law Institute also categorically stated that the view of Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses practically the same rights and powers as her unmarried
sister." 20

In the case at bench, we have to decide whether we should continue clinging to the anachronistic common law that
demeans women, especially married women. I submit that the Court has no choice except to break away from this
common law rule, the root of the many degradations of Filipino women. Before 1988, our laws particularly the Civil
Code, were full of gender discriminations against women. Our esteemed colleague, Madam Justice Flerida Ruth
Romero, cited a few of them as follows: 21

xxx xxx xxx

Legal Disabilities Suffered by Wives

Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or
disabilities. For instance, the wife cannot accept gifts from others, regardless of the sex of the giver
or the value of the gift, other than from her very close relatives, without her husband's consent. She
may accept only from, say, her parents, parents-in-law, brothers, sisters and the relatives within the
so-called fourth civil degree. She may not exercise her profession or occupation or engage in
business if her husband objects on serious grounds or if his income is sufficient to support their
 family in accordance with their social standing. As to what constitutes "serious grounds" for
objecting, this is within the discretion of the husband.

xxx xxx xxx

Because of the present inequitable situation, the amendments to the Civil Law being proposed by
the University of the Philippines Law Center would allow absolute divorce which severes the
matrimonial ties, such that the divorced spouses are free to get married a year after the divorce is
decreed by the courts. However, in order to place the husband and wife on an equal footing insofar
as the bases for divorce are concerned, the following are specified as the grounds for absolute
divorce: (1) adultery or having a paramour committed by the respondent in any of the ways specified
in the Revised Penal Code or (2) an attempt by the respondent against the life of the petitioner which
amounts to attempted parricide under the Revised Penal Code; (3) abandonment of the petitioner by
the respondent without just cause for a period of three consecutive years; or (4) habitual
maltreatment.

With respect to property relations, the husband is automatically the administrator of the conjugal
property owned in common by the married couple even if the wife may be the more astute or
enterprising partner. The law does not leave it to the spouses to decide who shall act as such
administrator. Consequently, the husband is authorized to engage in acts and enter into transactions
beneficial to the conjugal partnership. The wife, however, cannot similarly bind the partnership
without the husband's consent.

And while both exercise joint parental authority over their children, it is the father whom the law
designates as the legal administrator of the property pertaining to the unemancipated child.

Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate
inequality between men and women in our land. The watershed came on August 3, 1988 when our Family
Code took effect which, among others, terminated the unequal treatment of husband and wife as to their
rights and responsibilities.
22

The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-based
privileges of husbands. Among others, married women are now given the joint right to administer the family
property, whether in the absolute community system or in the system of conjugal partnership; joint parental
23

authority over their minor children, both over their persons as well as their properties; joint responsibility for the
24

support of the family; the right to jointly manage the household; and, the right to object to their husband's exercise
25 26

of profession, occupation, business or activity. Of particular relevance to the case at bench is Article 69 of the
27

Family Code which took away the exclusive right of the husband to fix the family domicile and gave it jointly to the
husband and the wife, thus:

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall
decide.

The court may exempt one spouse from living with the other if the latter should live abroad or there
are other valid and compelling reasons for the exemption. However, such exemption shall not apply
if the same is not compatible with the solidarity of the family. (Emphasis supplied)

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to live
together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances when a
wife may now refuse to live with her husband, thus: 28

(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases like:

(a) If the place chosen by the husband as family residence is dangerous to her Life;

(b) If the husband subjects her to maltreatment or abusive conduct or insults, making
common life impossible;

(c) If the husband compels her to live with his parents, but she cannot get along with
her mother-in-law and they have constant quarrels (Del Rosario v. Del Rosario, CA,
46 OG 6122);

(d) Where the husband has continuously carried illicit relations for 10 years with
different women and treated his wife roughly and without consideration. (Dadivas v.
Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving no money to his family for
food and necessities, and at the same time insulting his wife and laying hands on
her. (Panuncio v. Sula, CA, 34 OG 129);
 (f) If the husband has no fixed residence and lives a vagabond life as a tramp (1
Manresa 329);

(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38

La. Ann. 70).

The inescapable conclusion is that our Family Code has completely emancipated the wife from the control
of the husband, thus abandoning the parties' theoretic identity of interest. No less than the late revered Mr.
Justice J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law Center gave this
insightful view in one of his rare lectures after retirement:
29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as to emancipate the wife from the
exclusive control of the husband and to place her at parity with him insofar as the family is
concerned. The wife and the husband are now placed on equal standing by the Code. They are now
joint administrators of the family properties and exercise joint authority over the persons and
properties of their children. This means a dual authority in the family. The husband will no longer
prevail over the wife but she has to agree on all matters concerning the family. (Emphasis supplied)

In light of the Family Code which abrogated the inequality between husband and wife as started and
perpetuated by the common law, there is no reason in espousing the anomalous rule that the wife still
retains the domicile of her dead husband. Article 110 of the Civil Code which provides the statutory support
for this stance has been repealed by Article 69 of the Family Code. By its repeal, it becomes a dead-letter
law, and we are not free to resurrect it by giving it further effect in any way or manner such as by ruling that
the petitioner is still bound by the domiciliary determination of her dead husband.

Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of due
process and equal protection of
law. It can hardly be doubted that the common law imposition on a married woman of her dead husband's domicile
30

even beyond his grave is patently discriminatory to women. It is a gender-based discrimination and is not rationally
related to the objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed, compared
with our previous fundamental laws, the 1987 Constitution is more concerned with equality between sexes as it
explicitly commands that the State ". . . shall ensure fundamental equality before the law of women and men." To be
exact, section 14, Article II provides: "The State recognizes the role of women in nation building, and shall ensure
fundamental equality before the law of women and men. We shall be transgressing the sense and essence of this
constitutional mandate if we insist on giving our women the caveman's treatment.

Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her
Tacloban domicile upon the death of her husband in 1989. This is the necessary consequence of the view that
petitioner's Batac dictated domicile did not continue after her husband's death; otherwise, she would have no
domicile and that will violate the universal rule that no person can be without a domicile at any point of time. This
stance also restores the right of petitioner to choose her domicile before it was taken away by Article 110 of the Civil
Code, a right now recognized by the Family Code and protected by the Constitution. Likewise, I cannot see the
fairness of the common law requiring petitioner to choose again her Tacloban domicile before she could be released
from her Batac domicile. She lost her Tacloban domicile not through her act but through the act of her deceased
husband when he fixed their domicile in Batac. Her husband is dead and he cannot rule her beyond the grave. The
law disabling her to choose her own domicile has been repealed. Considering all these, common law should not put
the burden on petitioner to prove she has abandoned her dead husband's domicile. There is neither rhyme nor
reason for this gender-based burden.

But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her Tacloban
domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted to the respondent
COMELEC, petitioner averred:

xxx xxx xxx

36. In November, 1991, I came home to our beloved country, after several requests for my return
were denied by President Corazon C. Aquino, and after I filed suits for our Government to issue me
my passport.

37. But I came home without the mortal remains of my beloved husband, President Ferdinand E.
Marcos, which the Government considered a threat to the national security and welfare.

38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in
Olot, Tolosa, Leyte, even if my residences there were not livable as they had been destroyed and
cannibalized. The PCGG, however, did not permit and allow me.
 39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a
friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter rented, and
Pacific Plaza, all in Makati.

40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San
Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered
residences in Tacloban City and Barangay Olot, Tolosa, Leyte.

40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year,
I renovated my parents' burial grounds and entombed their bones which had been
excalvated, unearthed and scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for
permissions to —

. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . .

. to make them livable for us the Marcos family to have a home in our own
motherland.

xxx xxx xxx

42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col.
Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my Leyte
residences. I quote part of his letter:

Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends
to visit our sequestered properties in Leyte, please allow her access thereto. She
may also cause repairs and renovation of the sequestered properties, in which event,
it shall be understood that her undertaking said repairs is not authorization for her to
take over said properties, and that all expenses shall be for her account and not
reimbursable. Please extend the necessary courtesy to her.

xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Niño Shrine residence in Tacloban City
where I wanted to stay and reside, after repairs and renovations were completed. In August 1994, I
transferred from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when
PCGG permitted me to stay and live there.

It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not disputed
that in 1992, she first lived at the house of her brother in San Jose, Tacloban City and later, in August 1994,
she transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of
Olot are within the First District of Leyte. Since petitioner reestablished her old domicile in 1992 in the First
District of Leyte, she more than complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e., the May 8,
1995 elections.

The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He presented
petitioner's Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay Olot,
Tolosa, Leyte wherein she stated that her period of residence in said barangay was six (6) months as of the date of
her filing of said Voter's Registration Record on January 28, 1995. This statement in petitioner's Voter's
31

Registration Record is a non-prejudicial admission. The Constitution requires at least one (1) year residence in
the district in which the candidate shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioner's statement proved that she resided in Olot six (6) months before January 28, 1995 but did not
disprove that she has also resided in Tacloban City starting 1992. As aforestated, Olot and Tacloban City are both
within the First District of Leyte, hence, her six (6) months residence in Olot should be counted not against, but in
her favor. Private respondent also presented petitioner's Certificate of Candidacy filed on March 8, 1995 where she
32

placed seven (7) months after Item No. 8 which called for information regarding "residence in the constituency
where I seek to be elected immediately preceding the election." Again, this original certificate of candidacy has no
evidentiary value because an March 1, 1995 it was corrected by petitioner. In her Amended/Corrected Certificate of
Candidacy, petitioner wrote "since childhood" after Item No. 8. The amendment of a certificate of candidacy to
33

correct a bona fide mistake has been allowed by this Court as a matter of course and as a matter of right. As we
held in Alialy v. COMELEC, viz.:
34

xxx xxx xxx

 The absence of the signature of the Secretary of the local chapter N.P in the original certificate of
candidacy presented before the deadline September 11, 1959, did not render the certificate
invalid. The amendment of the certificate, although at a date after the deadline, but before the
election, was substantial compliance with the law, and the defect was cured.

It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995 cannot be
used as evidence against her. Private respondent's petition for the disqualification of petitioner rested alone
on these two (2) brittle pieces of documentary evidence — petitioner's Voter's Registration Record and her
original Certificate of Candidacy. Ranged against the evidence of the petitioner showing her ceaseless
contacts with Tacloban, private respondent's two (2) pieces of evidence are too insufficient to disqualify
petitioner, more so, to deny her the right to represent the people of the First District of Leyte who have
overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office shall be
free from any form of harassment and discrimination." A detached reading of the records of the case at bench will
35

show that all forms of legal and extra-legal obstacles have been thrown against petitioner to prevent her from
running as the people's representative in the First District of Leyte. In petitioner's Answer to the petition to disqualify
her, she averred: 36

xxx xxx xxx

10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is devious.
When respondent (petitioner herein) announced that she was intending to register as a voter in
Tacloban City and run for Congress in the First District of Leyte, petitioner (Montejo) immediately
opposed her intended registration by writing a letter stating that "she is not a resident of said city but
of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent
(petitioner herein) had registered as a voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer the town of
Tolosa from the First District to the Second District and pursued such move up to the Supreme Court
in G.R. No. 118702, his purpose being to remove respondent (petitioner herein) as petitioner's
(Montejo's) opponent in the congressional election in the First District. He also filed a bill, along with
other Leyte Congressmen, seeking to create another legislative district, to remove the town of
Tolosa out of the First District and to make it a part of the new district, to achieve his purpose.
However, such bill did not pass the Senate. Having, failed on such moves, petitioner now filed the
instant petition, for the same objective, as it is obvious that he is afraid to submit himself along with
respondent (petitioner herein) for the judgment and verdict of the electorate of the First District of
Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995.

These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion, held: 37

xxx xxx xxx

Prior to the registration date — January 28, 1995 the petitioner (herein private respondent Montejo)
wrote the Election Officer of Tacloban City not to allow respondent (petitioner herein) to register
thereat since she is a resident of Tolosa and not Tacloban City. The purpose of this move of the
petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the matter of the
Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New
Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G.
Montejo, Representative, First District of Leyte, wanted the Municipality of Tolosa, in the First District
of Leyte, transferred to the Second District of Leyte. The Hon. Sergio A.F. Apostol, Representative of
the Second District of Leyte, opposed the move of the petitioner (Montejo). Under Comelec
Resolution No. 2736 (December 29, 1994), the Commission on Elections refused to make the
proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995.
Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo Roy G.
Montejo vs. Commission on Elections, G.R. No. 118702) questioning the resolution of the
Commission. Believing that he could get a favorable ruling from the Supreme Court, petitioner
(Montejo) tried to make sure that the respondent (petitioner herein) will register as a voter in Tolosa
so that she will be forced to run as Representative not in the First but in the Second District.

It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a
"Decision," penned by Associate Justice Reynato S. Puno, the dispositive portion of which reads:

IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the

municipality of Capoocan of the Second District and the municipality of Palompon of
the Fourth District to the Third District of the province of Leyte, is annulled and set
aside. We also deny the Petition praying for the transfer of the municipality of Tolosa
from the First District to the Second District of the province of Leyte. No costs.
 Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was constrained to
register in the Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In
any case, both Tacloban City and Tolosa are in the First Legislative District.

All these attempts to misuse our laws and legal processes are forms of rank harassments and invidious
discriminations against petitioner to deny her equal access to a public office. We cannot commit any
hermeneutic violence to the Constitution by torturing the meaning of equality, the end result of which will
allow the harassment and discrimination of petitioner who has lived a controversial life, a past of alternating
light and shadow. There is but one Constitution for all Filipinos. Petitioner cannot be adjudged by a
"different" Constitution, and the worst way to interpret the Constitution is to inject in its interpretation, bile
and bitterness.

Sixth. In Gallego v. Vera, we explained that the reason for this residence requirement is "to exclude a stranger or
38

newcomer, unacquainted, with the conditions and needs of a community and not identified with the latter, from an
elective office to serve that community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be
contested. Nobody can claim that she is not acquainted with its problems because she is a stranger to the place.
None can argue she cannot satisfy the intent of the Constitution.

Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the electorate.
The election results show that petitioner received Seventy Thousand Four Hundred Seventy-one (70,471) votes,
while private respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is
clearly the overwhelming choice of the electorate of the First District of Leyte and this is not a sleight of statistics.
We cannot frustrate this sovereign will on highly arguable technical considerations. In case of doubt, we should lean
towards a rule that will give life to the people's political judgment.

A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status
between women and men by rejecting the iniquitous common law precedents on the domicile of married women and
by redefining domicile in accord with our own culture, law, and Constitution. To rule that a married woman is
eternally tethered to the domicile dictated by her dead husband is to preserve the anachronistic and anomalous
balance of advantage of a husband over his wife. We should not allow the dead to govern the living even if the
glories of yesteryears seduce us to shout long live the dead! The Family Code buried this gender-based
discrimination against married women and we should not excavate what has been entombed. More importantly, the
Constitution forbids it.

I vote to grant the petition.

Bellosillo and Melo, JJ., concur.

FRANCISCO, J., concurring:

I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of the
First Congressional District of Leyte. I wish, however, to express a few comments on the issue of petitioner's
domicile.

Domicile has been defined as that place in which a person's habitation is fixed, without any present intention of
removing therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode,
or habitation, not for a mere special or temporary purpose, but with a present intention of making it his permanent
home (28 C.J.S. §1). It denotes a fixed permanent residence to which when absent for business, or pleasure, or for
like reasons one intends to return, and depends on facts and circumstances, in the sense that they disclose intent.
(Ong Huan Tin v. Republic, 19 SCRA 966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a domicile
of origin, which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally
dependent at the time of his birth. While the domicile of origin is generally the place where one is born or reared, it
maybe elsewhere (28 C.J.S. §5). Domicile of choice, on the other hand, is the place which the person has elected
and chosen for himself to displace his previous domicile; it has for its true basis or foundation the intention of the
person (28 C.J.S. §6). In order to hold that a person has abandoned his domicile and acquired a new one called
domicile of choice, the following requisites must concur, namely, (a) residence or bodily presence in the new locality,
(b) intention to remain there or animus manendi, and (c) an intention to abandon the old domicile or animus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A third classification is domicile by
operation of law which attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the relation of a parent
and a child (28 C.J.S. §7).

In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral
Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind,
public respondent Commission on Elections misapplied this concept, of domicile which led to petitioner's
disqualification by ruling that petitioner failed to comply with the constitutionally mandated one-year residence
requirement. Apparently, public respondent Commission deemed as conclusive petitioner's stay and registration as
voter in many places as conduct disclosing her intent to abandon her established domicile of origin in Tacloban,
Leyte. In several decisions, though, the Court has laid down the rule that registration of a voter in a place other than
his place of origin is not sufficient to constitute abandonment or loss of such residence (Faypon v. Quirino, 96 Phil.
294, 300). Respondent Commission offered no cogent reason to depart from this rule except to surmise petitioner's
intent of abandoning her domicile of origin.

It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her marriage, a
domicile by operation of law. The proposition is that upon the death of her husband in 1989 she retains her
husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual change thereof. I find this proposition quite
untenable.

Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac, Ilocos
Norte, upon her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the domicile of her
husband. In my view, the reason for the law is for the spouses to fully and effectively perform their marital duties and
obligations to one another. The question of domicile, however, is not affected by the fact that it was the legal or
1

moral duty of the individual to reside in a given place (28 C.J.S. §11). Thus, while the wife retains her marital
domicile so long as the marriage subsists, she automatically loses it upon the latter's termination, for the reason
behind the law then ceases. Otherwise, petitioner, after her marriage was ended by the death of her husband, would
be placed in a quite absurd and unfair situation of having been freed from all wifely obligations yet made to hold on
to one which no longer serves any meaningful purpose.

It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death
without even signifying her intention to that effect. It is for the private respondent to prove, not for petitioner to
disprove, that petitioner has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other
place/s. The clear rule is that it is the party (herein private respondent) claiming that a person has abandoned or lost
his residence of origin who must show and prove preponderantly such abandonment or loss (Faypon v.
Quirino, supra at 298; 28 C.J.S. §16), because the presumption is strongly in favor of an original or former domicile,
as against an acquired one (28 C.J.S. §16). Private respondent unfortunately failed to discharge this burden as the
record is devoid of convincing proof that petitioner has acquired whether voluntarily or involuntarily, a new domicile
to replace her domicile of origin.

The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year residence
requirement. After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the
Presidential Commission on Good Government which sequestered her residential house and other properties
forbade her necessitating her transient stay in various places in Manila (Affidavit p.6, attached as Annex I of the
Petition). In 1992, she ran for the position of president writing in her certificate of candidacy her residence as San
Juan, Metro Manila. After her loss therein, she went back to Tacloban City, acquired her residence certificate and 2

resided with her brother in San Jose. She resided in San Jose, Tacloban City until August of 1994 when she was
allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte (Annex I, p.
6). It was in the same month of August when she applied for the cancellation of her previous registration in San
3

Juan, Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on January 28, 1995.
From this sequence of events, I find it quite improper to use as the reckoning period of the one-year residence
requirement the date when she applied for the cancellation of her previous registration in San Juan, Metro Manila.
The fact which private respondent never bothered to disprove is that petitioner transferred her residence after the
1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and resided therein until August
of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa,
Leyte are within the First Congressional District of Leyte, it indubitably stands that she had more than a year of
residence in the constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied with the
one-year qualification required by the 1987 Constitution.

I vote to grant the petition.

ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running for
Representative of her District and that, in the event that she should, nevertheless, muster a majority vote, her
proclamation should be suspended. Not by a straightforward ruling did the COMELEC pronounce its decision as has
been its unvarying practice in the past, but by a startling succession of "reverse somersaults." Indicative of its
shifting stance vis-a-vis petitioner's certificate of candidacy were first, the action of its Second Division disqualifying
her and canceling her original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the
COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then because she
persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the canvass
should show that she obtained the highest number of votes (obviously noting that petitioner had won
overwhelmingly over her opponent), but almost simultaneously reversing itself by directing that even if she wins, her
proclamation should nonetheless be suspended.

Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to be given
to the one-year residency requirement imposed by the Constitution on aspirants for a Congressional seat. 1
Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election purposes, it is
important to determine whether petitioner's domicile was in the First District of Leyte and if so, whether she had
resided there for at least a period of one year. Undisputed is her domicile of origin, Tacloban, where her parents
lived at the time of her birth. Depending on what theory one adopts, the same may have been changed when she
married Ferdinand E. Marcos, then domiciled in Batac, by operation of law. Assuming it did, his death certainly
released her from the obligation to live with him at the residence fixed by him during his lifetime. What may confuse
the layman at this point is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice," or
"domicile by operation of law," which subject we shall not belabor since it has been amply discussed by
the ponente and in the other separate opinions.

In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's death on
the domicile of the widow. Some scholars opine that the widow's domicile remains unchanged; that the deceased
husband's wishes perforce still bind the wife he has left behind. Given this interpretation, the widow cannot possibly
go far enough to sever the domiciliary tie imposed by her husband.

It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile of the
family, as laid down in the Civil Code, but to continue giving obeisance to his wishes even after the rationale
2

underlying the mutual duty of the spouses to live together has ceased, is to close one's eyes to the stark realities of
the present.

At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the demise of
her husband. Does the law so abhor a vacuum that the widow has to be endowed somehow with a domicile? To
answer this question which is far from rhetorical, one will have to keep in mind the basic principles of domicile.
Everyone must have a domicile. Then one must have only a single domicile for the same purpose at any given time.
Once established, a domicile remains until a new one is acquired, for no person lives who has no domicile, as
defined by the law be is subject to.

At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky by the
conflicting opinions of foreign legal authorities. This being the state of things, it is imperative as it is opportune to
illumine the darkness with the beacon light of truth, as dictated by experience and the necessity of according
petitioner her right to choose her domicile in keeping with the enlightened global trend to recognize and protect the
human rights of women, no less than men.

Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are concerned, is
a relatively recent phenomenon that took seed only in the middle of this century. It is a historical fact that for over
three centuries, the Philippines had been colonized by Spain, a conservative, Catholic country which transplanted to
our shores the Old World cultures, mores and attitudes and values. Through the imposition on our government of
the Spanish Civil Code in 1889, the people, both men and women, had no choice but to accept such concepts as
the husband's being the head of the family and the wife's subordination to his authority. In such role, his was the
right to make vital decisions for the family. Many instances come to mind, foremost being what is related to the issue
before us, namely, that "the husband shall fix the residence of the family." Because he is made responsible for the
3

support of the wife and the rest of the family, he is also empowered to be the administrator of the conjugal property,
4

with a few exceptions and may, therefore, dispose of the conjugal partnership property for the purposes
5

specified under the law; whereas, as a general rule, the wife cannot bind the conjugal partnership without
6

the husband's consent. As regards the property pertaining to the children under parental authority, the
7

father is the legal administrator and only in his absence may the mother assume his powers. Demeaning to 8

the wife's dignity are certain strictures on her personal freedoms, practically relegating her to the position
of minors and disabled persons. To illustrate a few: The wife cannot, without the husband's consent,
acquire any gratuitous title, except from her ascendants, descendants, parents-in-law, and collateral
relatives within the fourth degree. With respect to her employment, the husband wields a veto power in the
9

case the wife exercises her profession or occupation or engages in business, provided his income is
sufficient for the family, according to its social standing and his opposition is founded on serious and valid
grounds. Most offensive, if not repulsive, to the liberal-minded is the effective prohibition upon a widow to
10

get married till after three hundred days following the death of her husband, unless in the meantime, she
has given birth to a child. The mother who contracts a subsequent marriage loses the parental authority
11

over her children, unless the deceased husband, father of the latter, has expressly provided in his will that
his widow might marry again, and has ordered that in such case she should keep and exercise parental
authority over their children. Again, an instance of a husband's overarching influence from beyond the
12

grave.

All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from
them until the concept of human rights and equality between and among nations and individuals found
hospitable lodgment in the United Nations Charter of which the Philippines was one of the original
signatories. By then, the Spanish "conquistadores" had been overthrown by the American forces at the turn
of the century. The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and
women." (Emphasis supplied)

It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning
of the feminist movement. What may be regarded as the international bill of rights for women was
 implanted in the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) adopted by the U.N. General Assembly which entered into force as an international treaty
on September 3, 1981. In ratifying the instrument, the Philippines bound itself to implement its
liberating spirit and letter, for its Constitution, no less, declared that "The Philippines. . . adopts the
generally accepted principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all nations." One such13

principle embodied in the CEDAW is granting to men and women "the same rights with regard to the
law relating to the movement of persons and the freedom to choose their residence and
domicile." (Emphasis supplied).
14

CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987
Constitution of the Philippines and later, in the Family Code, both of which were speedily approved by the
15

first lady President of the country, Corazon C. Aquino. Notable for its emphasis on the human rights of all
individuals and its bias for equality between the sexes are the following provisions: "The State values the
dignity of every human person and guarantees full respect for human rights" and "The State recognizes
16

the role of women in nation-building, and shall ensure the fundamental equality before the law of women
and men." 17

A major accomplishment of women in their quest for equality with men and the elimination of discriminatory
provisions of law was the deletion in the Family Code of almost all of the unreasonable strictures on wives and the
grant to them of personal rights equal to that of their husbands. Specifically, the husband and wife are now
given the right jointly to fix the family domicile; concomitant to the spouses' being jointly responsible for the support
18

of the family is the right and duty of both spouses to manage the household; the administration and the enjoyment
19

of the community property shall belong to both spouses jointly; the father and mother shall now jointly exercise
20

legal guardianship over the property of their unemancipated common child and several others.
21

Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress passed a
law popularly known as "Women in Development and Nation Building Act" Among the rights given to married
22

women evidencing their capacity to act in contracts equal to that of men are:

(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements under
the same conditions as men;

(2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans
and non material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and

(4) Married women shall have rights equal to those of married men in applying for passports, secure visas and other
travel documents, without need to secure the consent of their spouses.

As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the first
to respond to its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's full
participation in decision-making at all levels, including the family" should be removed. Having been herself a
Member of the Philippine Delegation to the International Women's Year Conference in Mexico in 1975, this writer is
only too keenly aware of the unremitting struggle being waged by women the world over, Filipino women not
excluded, to be accepted as equals of men and to tear down the walls of discrimination that hold them back from
their proper places under the sun.

In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights
to women hitherto denied them and eliminating whatever pockets of discrimination still exist in their civil, political and
social life, can it still be insisted that widows are not at liberty to choose their domicile upon the death of their
husbands but must retain the same, regardless?

I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the domicile of the
departed husband, if at all she was before. Neither does she automatically revert to her domicile of origin, but
exercising free will, she may opt to reestablish her domicile of origin. In returning to Tacloban and subsequently, to
Barangay Olot, Tolosa, both of which are located in the First District of Leyte, petitioner amply demonstrated by
overt acts, her election of a domicile of choice, in this case, a reversion to her domicile of origin. Added together, the
time when she set up her domicile in the two places sufficed to meet the one-year requirement to run as
Representative of the First District of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.

VITUG, J., separate opinion:

The case at bench deals with explicit Constitutional mandates.

The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and
render steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A
compliant transience of a constitution belittles its basic function and weakens its goals. A constitution may well
become outdated by the realities of time. When it does, it must be changed but while it remains, we owe it respect
and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the answer to perceived transitory
needs, let alone societal attitudes, or the Constitution might lose its very essence.

Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by
necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).

The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These
provisions read:

Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born

citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to
read and write, and, except the party-list representatives, a registered voter in the district in which he
shall be elected, and a resident thereof for a period of not less than one year immediately preceding
the day of the election.

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and
regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to
the contrary, should include its authority to pass upon the qualification and disqualification prescribed by law
of candidates to an elective office. Indeed, pre-proclamation controversies are expressly placed under the
COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).

The matter before us specifically calls for the observance of the constitutional one-year residency requirement. The
issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least
inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long
established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion,"
are not reviewable by this Court.

I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term
"residence" has a broader connotation that may mean permanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For
civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a
natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling
rule is that heretofore announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226
SCRA 408, 409); thus:

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term
"residence" as used in the election law is synonymous with "domicile," which imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention." "Domicile" denotes a fixed permanent residence to which when absent
for business or pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new
domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an
intention to remain there, and (3) an intention to abandon the old domicile. In other words, there
must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or
at the domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual.

Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave
abuse of discretion in its assailed resolution.

The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral
Tribunal concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since
become a "member" of the Senate or the House of Representatives. The question can be asked on whether or not
the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the
number of votes cast in an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of
which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be
required by law before a proclamation is properly done.

The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of
authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to
the election, returns and qualification" of its members.

Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of
Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly:

REPUBLIC ACT NO. 6646

xxx xxx xxx

Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.

BATAS PAMBANSA BLG. 881

xxx xxx xxx

Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give
priority to cases of disqualification by reason of violation of this Act to the end that a final decision
shall be rendered not later than seven days before the election in which the disqualification is
sought.

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not
declared by final, judgment before an election to be disqualified, and he is voted for and receives the
winning number of votes in such election, his violation of the provisions of the preceding sections
shall not prevent his proclamation and assumption to office.

I realize that in considering the significance of the law, it may be preferable to look for not so much the specific
instances they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that
it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as
such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated in the case
of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA
687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case
of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253
[1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito
vs. Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa,
Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices
Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labo decision:

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he was obviously not the choice of
the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740)
decided in 1985. In that case, the candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were
all disregard as stray. In effect, the second placer won by default. That decision was supported by
eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee,
Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana
and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and
democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio
 v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and
Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.)
another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion,
Jr., J.) There the Court held:

. . . it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that
they do not choose him.

Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)

The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote
the winner into office or maintain him there. However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere
belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or
meaningless. (at pp. 20-21)

Considering all the foregoing, I am constrained to vote for the dismissal of the petition.

MENDOZA, J., separate opinion:

In my view the issue in this case is whether the Commission on Elections has the power to disqualify candidates on
the ground that they lack eligibility for the office to which they seek to be elected. I think that it has none and that the
qualifications of candidates may be questioned only in the event they are elected, by filing a petition for quo
warranto or an election protest in the appropriate forum, not necessarily in the COMELEC but, as in this case, in the
House of Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in the
COMELEC is of no moment. Such proceedings were unauthorized and were not rendered valid by their agreement
to submit their dispute to that body.

The various election laws will be searched in vain for authorized proceedings for determining a candidate's
qualifications for an office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the
Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166).
There are, in other words, no provisions for pre-proclamation contests but only election protests or quo
warranto proceedings against winning candidates.

To be sure, there are provisions denominated for "disqualification," but they are not concerned with a declaration of
the ineligibility of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence or
conviction of an offense) of a person either to be a candidate or to continue as a candidate for public office. There is
also a provision for the denial or cancellation of certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated in the certificates.

These provisions are found in the following parts of the Omnibus Election Code:

§ 12. Disqualifications. — Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for
any offense for which he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless
he has been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis added)

§ 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is

declared by final decision of a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c)
 spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence requirement provided for
in the election laws. (Emphasis added)

§ 78. Petition to deny due course to or cancel a certificate of

candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election. (Emphasis added)

the Electoral Reforms Law of 1987 (R.A. No. 6646):

§ 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest and; upon motion for the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Emphasis added).

§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure

hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of
candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

and the Local Government Code of 1991 (R.A. No. 7160):

§ 40. Disqualifications. — The following persons are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of on administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad
and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation and
Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made material
representations in her certificate of candidacy which were false, it sought her disqualification on the ground that "on
the basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified from running for the
position of Representative, considering that on election day, May 8, 1995, [she] would have resided less than ten
(10) months in the district where she is seeking to be elected." For its part, the COMELEC's Second Division, in its
resolution of April 24, 1995, cancelled her certificate of candidacy and corrected certificate of candidacy on the basis
of its finding that petitioner is "not qualified to run for the position of Member of the House of Representatives for the
First Legislative District of Leyte" and not because of any finding that she had made false representations as to
material matters in her certificate of candidacy.

Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy
under § 78 of the Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It is
important to note this, because, as will presently be explained, proceedings under § 78 have for their purpose to
disqualify a person from being a candidate, whereas quo warranto proceedings have for their purpose to disqualify
a person from holding public office. Jurisdiction over quo warranto proceedings involving members of the House of
Representatives is vested in the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of candidacy, the
allegations were that the respondent candidates had made false representations in their certificates of candidacy
with regard to their citizenship, age, or residence. But in the generality of cases in which this Court passed upon
1 2 3

the qualifications of respondents for office, this Court did so in the context of election protests or quo
4

warranto proceedings filed after the proclamation of the respondents or protestees as winners.
5

Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the
qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his
eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting
election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification is being sought. That is
why it is provided that if the grounds for disqualification are established, a candidate will not be voted for; if he has
been voted for, the votes in his favor will not be counted; and if for some reason he has been voted for and he has
won, either he will not be proclaimed or his proclamation will be set aside. 6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his
domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination
of Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to
the summary character of proceedings relating to certificates of candidacy. That is why the law makes the receipt of
certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state
7

in their certificates of candidacy that they are eligible for the position which they seek to fill, leaving the
determination of their qualifications to be made after the election and only in the event they are elected. Only in
cases involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice
President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to
preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election, returns and qualifications of members of Congress or of the President
and Vice President, as the case may be.

By providing in § 253 for the remedy of quo warranto for determining an elected official's qualifications after the
results of elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the
same ground, the Omnibus Election Code, or OEC, by its silence underscores the policy of not authorizing any
inquiry into the qualifications of candidates unless they have been elected.

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in Rule 25, § 1 the following:

Grounds for disqualification. — Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such
an act is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the
exercise of its rulemaking power under Art. IX, A, § 6 of the Constitution, cannot do. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the right to vote, which
essentially involves an inquiry into qualifications based on age, residence and citizenship of voters. (Art. IX, C, §
2(3))

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in §§ 12 and 68 of the Omnibus Election Code and
in § 40 of the Local Government Code and are for the purpose of barring an individual from becoming a candidate
or from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the
race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this
sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in § 2 of
the law does not imply that he does not suffer from any of disqualifications provided in § 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or
offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the proclamation
and prolonging the election protest," through the use of "manufactured" election returns or resort to other trickery for
8

the purpose of altering the results of the election. This rationale does not apply to cases for determining a
candidate's qualifications for office before the election. To the contrary, it is the candidate against whom a
proceeding for disqualification is brought who could be prejudiced because he could be prevented from assuming
office even though in end he prevails.

To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or action
for quo warranto filed pursuant to § 253 of the Omnibus Election Code within 10 days after his proclamation. With
respect to elective local officials (e.g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.)
such petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as
provided in Art. IX, C, § 2(2) of the Constitution. In the case of the President and Vice President, the petition must be
filed with the Presidential Electoral Tribunal (Art. VII, § 4, last paragraph), and in the case of the Senators, with the
Senate Electoral Tribunal, and in the case of Congressmen, with the House of Representatives Electoral Tribunal.
(Art. VI, § 17) There is greater reason for not allowing before the election the filing of disqualification proceedings
based on alleged ineligibility in the case of candidates for President, Vice President, Senators and members of the
House of Representatives, because of the same policy prohibiting the filing of pre-proclamation cases against such
candidates.

For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its
proceedings in that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda
Romualdez-Marcos for the office of Representative of the First District of Leyte may only be inquired into by the
HRET.

Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA No. 95-
009, including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring
petitioner Imelda Romualdez-Marcos ineligible and ordering her proclamation as Representative of the First District
of Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the
disqualification of candidates on the ground of ineligibility for the office, it should considered void.

The provincial board of canvassers should now proceed with the proclamation of petitioner.

Narvasa, C.J., concurs.

PADILLA, J., dissenting:

I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice Kapunan.

As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the provision
itself. The controversy should not be blurred by what, to me, are academic disquisitions. In this particular
controversy, the Constitutional provision on point states that — "no person shall be a member of the House of
Representatives unless he is a natural-born citizen of the Philippines, and on the day of the election, is at least
twenty-five (25) years of age, able to read and write, and except the party list representatives, a registered voter in
the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately
preceding the day of the election." (Article VI, section 6)

It has been argued that for purposes of our election laws, the term residence has been understood as synonymous
with domicile. This argument has been validated by no less than the Court in numerous cases where significantly
1

the factual circumstances clearly and convincingly proved that a person does not effectively lose his domicile of
origin if the intention to reside therein is manifest with his personal presence in the place, coupled with conduct
indicative of such intention.

With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the phrase "a
resident thereof (meaning, the legislative district) for a period of not less than one year" would fit.

The first instance is where a person's residence and domicile coincide in which case a person only has to prove that
he has been domiciled in a permanent location for not less than a year before the election.

A second situation is where a person maintains a residence apart from his domicile in which case he would have the
luxury of district shopping, provided of course, he satisfies the one-year residence period in the district as the
minimum period for eligibility to the position of congressional representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to his
domicile of origin, or better still, domicile of choice; neither would one be disqualified for abandoning altogether his
domicile in favor of his residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains several residences in different
districts. Since his domicile of origin continues as an option as long as there is no effective abandonment (animus
non revertendi), he can practically choose the district most advantageous for him.

All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of not less
than one year immediately preceding the day of the election", he must be a resident in the district where he desires
to be elected.

To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to be
synonymous with "domicile." In other words, the candidate's intent and actual presence in one district must
in all situations satisfy the length of time prescribed by the fundamental law. And this, because of a definite
Constitutional purpose. He must be familiar with the environment and problems of a district he intends to represent
in Congress and the one-year residence in said district would be the minimum period to acquire such familiarity, if
not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed decision of
the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc) —

In or about 1938 when respondent was a little over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to
1948 when she graduated from high school. She pursued her college studies in St. Paul's College,
now Divine Word University of Tacloban, where she earned her degree in Education. Thereafter, she
taught in the Leyte Chinese High School, still in Tacloban City. In 1952 she went to Manila to work
with her cousin, the late Speaker Daniel Z. Romualdez in his office in the House of Representatives.
In 1954, she married ex-president Ferdinand Marcos when he was still a congressman of Ilocos
Norte. She lived with him in Batac, Ilocos Norte and registered there as a voter. When her husband
was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal
where she registered as a voter. In 1965 when her husband was elected President of the Republic of
the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel,
Manila.

During the Marcos presidency, respondent served as a Member of the Batasang Pambansa,
Minister of Human Settlements and Governor of Metro Manila. She claimed that in February 1986,
she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came
home to Manila. In 1992 respondent ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San
Juan, Metro Manila. On August 24, 1994, respondent filed a letter with the election officer of San
Juan, Metro Manila, requesting for cancellation of her registration in the Permanent List of Voters in
Precinct No. 157 of San Juan, Metro Manila, in order that she may be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994, respondent filed her Sworn
Application for Cancellation of Voter's Previous Registration (Annex 2-C, Answer) stating that she is
a duly registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she intends to register at
Brgy. Olot, Tolosa, Leyte.

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte.
She filed with the Board of Election Inspectors CE Form No. 1, Voter Registration Record No. 94-
3349772, wherein she alleged that she has resided in the municipality of Tolosa for a period of 6
months (Annex A, Petition).

On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a
Certificate of Candidacy for the position of Representative of the First District of Leyte wherein she
also alleged that she has been a resident in the constituency where she seeks to be elected for a
period of 7 months. The pertinent entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social

Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte

Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte

9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE

ELECTED IMMEDIATELY PRECEDING ELECTION: ________
Years Seven Months

10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO,

A FOREIGN COUNTRY.
 THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the Republic
of the Philippines and will maintain true faith and allegiance thereto; That I will obey the laws, legal
orders and decrees promulgated by the duly-constituted authorities; That the obligation imposed by
my oath is assumed voluntarily, without mental reservation or purpose of evasion; and That the facts
stated herein are true to the best of my knowledge.

(Sgd.) Imelda Romualdez-Marcos

(Signature of Candidate) 2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or seed of
her disqualification. It is contained in her answer under oath of "seven months" to the query of "residence in the
constituency wherein I seek to be elected immediately preceding the election."

It follows from all the above that the Comelec committed no grave abuse of discretion in holding that petitioner is
disqualified from the position of representative for the 1st congressional district of Leyte in the elections of
8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st district, Leyte)
immediately preceding the day of election
(8 May 1995)."

Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next important
issue to resolve is whether or not the Comelec can order the Board of Canvassers to determine and proclaim the
winner out of the remaining qualified candidates for representative in said district.

I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564, August 1,
1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil.
238 that:

. . . . Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the election.
(20 Corpus Juris 2nd, S 243, p. 676)

The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote
the winner into office or maintain him there. However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere
belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or
meaningless.

Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes) (84
O.G. 905, 22 February 1988) it is provided that:

. . . — Any candidate who has been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the trial and hearing
of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may, during
the pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong.

There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the provision
quoted above. As the law now stands, the legislative policy does not limit its concern with the effect of a final
judgement of disqualification only before the election, but even during or after the election. The law is clear that in all
situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The law has also validated the
jurisdiction of the Court or Commission on Election to continue hearing the petition for disqualification in case a
candidate is voted for and receives the highest number of votes, if for any reason, he is not declared by final
judgment before an election to be disqualified.

Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his guilt
is strong) is also explicit under the law. What happens then when after the elections are over, one is declared
disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the
highest number of votes.

It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a
"winning candidate is disqualified," but that the law considers him as the candidate who had obtained the highest
number of votes as a result of the votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-
examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications
prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through
the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution.

ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to
proclaim the candidate receiving the highest number of votes, from among the qualified candidates, as the duly
elected representative of the 1st district of Leyte.

Hermosisima, Jr. J., dissent.

REGALADO, J., dissenting:

While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same
conclusion drawn therefrom Hence, this dissent which assuredly is not formulated "on the basis of the personality of
a petitioner in a case."

I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this case, and
which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she
being a legitimate daughter of parents who appear to have taken up permanent residence therein.
She also went to school there and, for a time, taught in one of the schools in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte,
by operation of law she acquired a new domicile in that place in 1954.

3. In the successive years and during the events that happened thereafter, her husband having been
elected as a Senator and then as President, she lived with him and their family in San Juan, Rizal
and then in Malacanang Palace in San Miguel, Manila.

4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San
Juan, Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right of suffrage.

5. It does not appear that her husband, even after he had assumed those lofty positions
successively, ever abandoned his domicile of origin in Batac, Ilocos Norte where he maintained his
residence and invariably voted in all elections.

6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family
in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and resided in
different places which she claimed to have been merely temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of
candidacy she indicated that she was then a registered voter and resident of San Juan, Metro
Manila.

8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent List
of Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up with her Sworn
Application for Cancellation of Voter's Previous Registration wherein she stated that she was a
registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she
intended to register in Brgy. Olot, Tolosa, Leyte.

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte,
for which purpose she filed with the therein Board of Election Inspectors a voter's registration record
form alleging that she had resided in that municipality for six months.

10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative
of the First District of Leyte wherein she alleged that she had been a resident for "Seven Months" of
the constituency where she sought to be elected.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her
answer in the original certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK, TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or
replaced with a new entry reading "SINCE CHILDHOOD."

The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the residency
requirement of one year as mandated by no less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the difference between residence
and domicile. We have had enough of that and I understand that for purposes of political law and, for that matter of
international law, residence is understood to be synonymous with domicile. That is so understood in our
jurisprudence and in American Law, in contradistinction to the concept of residence for purposes of civil, commercial
and procedural laws whenever an issue thereon is relevant or controlling.

Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable from
her domicile, I am addressing the issue from the standpoint of the concept of the latter term, specifically its
permutations into the domicile of origin, domicile of choice and domicile by operation of law, as understood in
American law from which for this case we have taken our jurisprudential bearings.

My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of origin,"
constitutes the domicile of an infant until abandoned, or until the acquisition of a new domicile in a different place. In1

the instant case, we may grant that petitioner's domicile of origin, at least as of 1938, was what is now Tacloban
2

City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by choice,
and domicile by operation of law. The first is the common case of the place of birth or domicilium originis, the
second is that which is voluntarily acquired by a party or domicilium propio motu; the last which is consequential, as
that of a wife arising from marriage, is sometimes called domicilium necesarium. There is no debate that the
3

domicile of origin can be lost or replaced by a domicile of choice or a domicile by operation of law subsequently
acquired by the party.

When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or
American but of our own enactment, she acquired her husband's domicile of origin in Batac, Ilocos Norte and
4

correspondingly lost her own domicile of origin in Tacloban City.

Her subsequent changes of residence — to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu,
Hawaii, and back to now San Juan, Metro Manila — do not appear to have resulted in her thereby acquiring new
domiciles of choice. In fact, it appears that her having resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the assumption of new official positions or the loss of them.
Her residence in Honolulu and, of course, those after her return to the Philippines were, as she claimed, against her
will or only for transient purposes which could not have invested them with the status of domiciles of choice. 5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency in
Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other domicile of
choice which could have resulted in the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we
note the majority's own submission that, to successfully effect a change of domicile, one must demonstrate (a) an
6

actual removal or an actual change of domicile, (b) a bona fide intention of abandoning the former place of
residence and establishing a new one, and (c) acts which correspond with the purpose.

We consequently have to also note that these requirements for the acquisition of a domicile of choice apply whether
what is sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile by operation of
law (domicilium necesarium). Since petitioner had lost her domicilium originis which had been replaced by
her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if at all, can be the
object of legal change under the contingencies of the case at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E.
Maambong in SPA 95-009 of the Commission on Elections, and advances this novel proposition.
7

It may be said that petitioner lost her domicile of origin by operation of law as a result of her marriage
to the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law (domicilium
necesarium), her legal domicile at the time of her marriage became Batac, Ilocos Norte although
there were no indications of an intention on her part to abandon her domicile of origin. Because of
her husband's subsequent death and through the operation of the provisions of the New Family
Code already in force at the time, however, her legal domicile automatically reverted to her domicile
of origin. . . . (Emphasis supplied).

Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in Batac,
Ilocos Norte, the majority insists on making a qualification that she did not intend to abandon her domicile of origin. I
find this bewildering since, in this situation, it is the law that declares where petitioner's domicile is at any given time,
and not her self-serving or putative intent to hold on to her former domicile. Otherwise, contrary to their own
admission that one cannot have more than one domicile at a time, the majority would be suggesting that petitioner
8

retained Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent of what is fancied
as a reserved, dormant, potential, or residual domicile.

Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law.
However, we are here being titillated with the possibility of an automatic reversion to or reacquisition of a domicile of
origin after the termination of the cause for its loss by operation of law. The majority agrees that since petitioner lost
her domicile of origin by her marriage, the termination of the marriage also terminates that effect thereof. I am
impressed by the ingeniousness of this theory which proves that, indeed, necessity is the mother of inventions.
Regretfully, I find some difficulty in accepting either the logic or the validity of this argument.

If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons the
former in favor of the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover his original
domicile unless, by subsequent acts legally indicative thereof, he evinces his intent and desire to establish the same
as his new domicile, which is precisely what petitioner belatedly and, evidently just for purposes of her candidacy,
unsuccessfully tried to do.

One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin, not
only because there is no legal authority therefor but because it would be absurd Pursued to its logical consequence,
that theory of ipso jure reversion would rule out the fact that said party could already very well have obtained
another domicile, either of choice or by operation of law, other than his domicile of origin. Significantly and obviously
for this reason, the Family Code, which the majority inexplicably invokes, advisedly does not regulate this
contingency since it would impinge on one's freedom of choice.

Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume that
she entered into the marital state against her will) but, on top of that, such abandonment was further affirmed
through her acquisition of a new domicile by operation of law. In fact, this is even a case of
both voluntary and legal abandonment of a domicile of origin. With much more reason, therefore, should we reject
the proposition that with the termination of her marriage in 1989, petitioner had supposedly per se and ipso
facto reacquired her domicile of origin which she lost in 1954. Otherwise, this would be tantamount to saying that
during the period of marital coverture, she was simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.

Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to elect
her own domicile, she nevertheless retains the last domicile of her deceased husband until she makes an actual
9

change. In the absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal
10

residence follows that of her husband and will continue after his death. 11

I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the
Family Code. All that is of any relevance therein is that under this new code, the right and power to fix the family
domicile is now shared by the spouses. I cannot perceive how that joint right, which in the first place was never
exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long
prior thereto. It is true that a wife now has the coordinate power to determine the conjugal or family domicile, but
that has no bearing on this case. With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no longer called for or
material in the present factual setting of this controversy. Instead, what is of concern in petitioner's case was the
matter of her having acquired or not her own domicile of choice.

I agree with the majority's discourse on the virtues of the growing and expanded participation of women in the affairs
of the nation, with equal rights and recognition by Constitution and statutory conferment. However, I have searched
in vain for a specific law or judicial pronouncement which either expressly or by necessary implication supports the
majority's desired theory of automatic reacquisition of or reversion to the domicilium originis of petitioner. Definitely,
as between the settled and desirable legal norms that should govern this issue, there is a world of difference; and,
unquestionably, this should be resolved by legislative articulation but not by the eloquence of the well-turned
phrase.

In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically
reacquired any domicile therein, she cannot legally claim that her residency in the political constituency of which it is
a part continued since her birth up to the present. Respondent commission was, therefore, correct in rejecting her
pretension to that effect in her amended/corrected certificate of candidacy, and in holding her to her admission in
the original certificate that she had actually resided in that constituency for only seven months prior to the election.
These considerations render it unnecessary to further pass upon the procedural issues raised by petitioner.

ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.

DAVIDE, JR., J., dissenting:

I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more particularly
on the issue of the petitioner's qualification.

Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC may be
brought to this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs.
COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of jurisdiction or
with grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly,
jurisdiction over the private respondent's petition, the only issue left is whether it acted with grave abuse of
discretion in disqualifying the petitioner.

My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division
and the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less grave abuse
thereof. The resolution of the Second Division dispassionately and objectively discussed in minute details the facts
which established beyond cavil that herein petitioner was disqualified as a candidate on the ground of lack of
residence in the First Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood
facts or circumstances of substance pertinent to the issue of her residence.

The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner has
abandoned Tolosa as her domicile of origin, which is allegedly within the First Congressional District of Leyte.

I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by documentary
evidence, overwhelming proof of the loss or abandonment of her domicile of origin, which is Tacloban City and not
Tolosa, Leyte. Assuming that she decided to live again in her domicile of origin, that became her second domicile of
choice, where her stay, unfortunately, was for only seven months before the day of the election. She was then
disqualified to be a candidate for the position of Representative of the First Congressional District of Leyte. A
holding to the contrary would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime in May 1954 upon her marriage to the then Congressman
(later, President) Ferdinand E. Marcos. A domicile by operation of law is that domicile which the law attributes to a
person, independently of his own intention or actual residence, as results from legal domestic relations as that of the
wife arising from marriage (28 C.J.S. Domicile § 7, 11). Under the governing law then, Article 110 of the Civil Code,
her new domicile or her domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said
Article reads as follows:

Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from
living with the husband if he should live abroad unless in the service of the Republic.

Commenting thereon, civilist Arturo M. Tolentino states:

Although the duty of the spouses to live together is mutual, the husband has a predominant right
because he is empowered by law to fix the family residence. This right even predominates over
some rights recognized by law in the wife. For instance, under article 117 the wife may engage in
business or practice a profession or occupation. But because of the power of the husband to fix
the family domicile he may fix it at such a place as would make it impossible for the wife to continue
in business or in her profession. For justifiable reasons, however, the wife may be exempted from
living in the residence chosen by the husband. The husband cannot validly allege desertion by the
wife who refuses to follow him to a new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice of a different home is not made in
good faith. (Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed.,
339).

Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires that of
her husband, no matter where the wife actually lives or what she believes or intends. Her domicile is fixed in the
sense that it is declared to be the same as his, and subject to certain limitations, he can change her domicile by
changing his own (25 Am Jur 2d Domicile § 48, 37).

It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is no
longer the sole prerogative of the husband, but is now a joint decision of the spouses, and in case of disagreement
the court shall decide. The said article uses the term "family domicile," and not family residence, as "the spouses
may have multiple residences, and the wife may elect to remain in one of such residences, which may destroy the
duty of the spouses to live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the
Family Code of the Philippines, [1988], 102).

The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the
majority opinion adopts to overcome the legal effect of the petitioner's marriage on her domicile, is unsupported by
law and by jurisprudence. The settled doctrine is that after the husband's death the wife has a right to elect her own
domicile, but she retains the last domicile of her husband until she makes an actual change (28 C.J.S. Domicile §
12, 27). Or, on the death of the husband, the power of the wife to acquire her own domicile is revived, but until she
exercises the power her domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile § 62,
45). Note that what is revived is not her domicile of origin but her power to acquire her own domicile.

Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of his
death — which was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel, Manila,
were their residences for convenience to enable her husband to effectively perform his official duties. Their
residence in San Juan was a conjugal home, and it was there to which she returned in 1991 when she was already
a widow. In her sworn certificate of candidacy for the Office of the President in the synchronized elections of May
1992, she indicated therein that she was a resident of San Juan, Metro Manila. She also voted in the said elections
in that place.

On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to acquire her
own domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San Juan, Metro
Manila, to cancel her registration in the permanent list of voters in Precinct 157 thereat and praying that she be "re-
registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy
of Exhibit "B," attached as Annex "2" of private respondent Montejo's Comment). Notably, she contradicted this
sworn statement regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992 (photocopy of
Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn to on 28 January 1995 (photocopy of
Exhibit "E," attached as Annex "5," Id.), and her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of
Exhibit "A," attached as Annex "1," Id.), she solemnly declared that she was born in Manila.

The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the affidavit
attached to her Answer to the petition for disqualification (Annex "I" of Petition), she declared under oath that her
"domicile or residence is Tacloban City." If she did intend to return to such domicile or residence of origin why did
she inform the Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's
Registration Record and in her certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this
uncertainty is not important insofar as residence in the congressional district is concerned, it nevertheless proves
that forty-one years had already lapsed since she had lost or abandoned her domicile of origin by virtue of marriage
and that such length of time diminished her power of recollection or blurred her memory.

I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the
subsequent cases which established the principle that absence from original residence or domicile of origin to
pursue studies, practice one's profession, or engage in business in other states does not constitute loss of such
residence or domicile. So is the reliance on Section 117 of the Omnibus Election Code which provides that transfer
of residence to any other place by reason of one's "occupation; profession; employment in private and public
service; educational activities; work in military or naval reservations; service in the army, navy or air force, the
constabulary or national police force; or confinement or detention in government institutions in accordance with law"
is not deemed as loss of original residence. Those cases and legal provision do not include marriage of a woman.
The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the intention of this Court or of the
legislature to consider the marriage of a woman as a circumstance which would not operate as an abandonment of
domicile (of origin or of choice), then such cases and legal provision should have expressly mentioned the same.

This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A" of her
Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban
City," and that she "never intended to abandon this domicile or residence of origin to which [she] always intended to
return whenever absent." Such a claim of intention cannot prevail over the effect of Article 110 of the Civil Code.
Besides, the facts and circumstances or the vicissitudes of the petitioner's life after her marriage in 1954
conclusively establish that she had indeed abandoned her domicile of origin and had acquired a new one animo et
facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).

Neither should this Court place complete trust on the petitioner's claim that she "merely committed an honest
mistake" in writing down the word "seven" in the space provided for the residency qualification requirement in the
certificate of candidacy. Such a claim is self-serving and, in the light of the foregoing disquisitions, would be all
sound and fury signifying nothing. To me, she did not commit any mistake, honest or otherwise; what she stated
was the truth.

The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of an issue
has the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp.
vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the
petitioner could not deny the legal consequence thereof on the change of her domicile to that of her husband. The
majority opinion rules or at least concludes that "[b]y operation of law (domicilium necesarium), her legal domicile at
the time of her marriage automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110 of
the Civil Code. Since she is presumed to retain her deceased husband's domicile until she exercises her revived
power to acquire her own domicile, the burden is upon her to prove that she has exercised her right to acquire her
own domicile. She miserably failed to discharge that burden.

I vote to deny the petition.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are unalike
should be treated unalike in proportion to their unalikeness. Like other candidates, petitioner has clearly met the
1

residence requirement provided by Section 6, Article VI of the Constitution. We cannot disqualify her and treat her
2
unalike, for the Constitution guarantees equal protection of the law. I proceed from the following factual and legal
propositions:

First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in
Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school
and thereafter worked there. I consider Tacloban as her initial domicile, both her domicile of origin and her domicile
of choice. Her domicile of origin as it was the domicile of her parents when she was a minor; and her domicile of
choice, as she continued living there even after reaching the age of majority.

Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E. Marcos. By
contracting marriage, her domicile became subject to change by law, and the right to change it was given by Article
110 of the Civil Code provides:

Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from
living with the husband if he should live abroad unless in the service of the Republic. (Emphasis
3

supplied)

In De la Viña v. Villareal and Geopano, this Court explained why the domicile of the wife ought to follow that
4

of the husband. We held: "The reason is founded upon the theoretic identity of person and interest between
the husband and the wife, and the presumption that, from the nature of the relation, the home of one is the
home of the other. It is intended to promote, strengthen, and secure their interests in this relation, as it
ordinarily exists, where union and harmony prevail." In accord with this objective, Article 109 of the Civil
5

Code also obligated the husband and wife "to live together."

Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos ipso
facto resulted in the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone did not
cause her to lose her Tacloban domicile. Article 110 of the Civil Code merely gave the husband the right to fix the
domicile of the family. In the exercise of the right, the husband may explicitly choose the prior domicile of his wife, in
which case, the wife's domicile remains unchanged. The husband can also implicitly acquiesce to his wife's prior
domicile even if it is different. So we held in de la Viña,
6

. . . . When married women as well as children subject to parental authority live, with the
acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have
their own independent domicile. . . .

It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the husband
that will change the domicile of a wife from what it was prior to their marriage. The domiciliary decision made
by the husband in the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any and
all acts of a wife during her coverture contrary to the domiciliary choice of the husband cannot change in any
way the domicile legally fixed by the husband. These acts are void not only because the wife lacks the
capacity to choose her domicile but also because they are contrary to law and public policy.

In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family domicile and
established it in Batac, Ilocos Norte, where he was then the congressman. At that particular point of time and
throughout their married life, petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has
been fixed by operation of law, it was not affected in 1959 when her husband was elected as Senator, when they
lived in San Juan, Rizal and where she registered as a voter. It was not also affected in 1965 when her husband
was elected President, when they lived in Malacañang Palace, and when she registered as a voter in San Miguel,
Manila. Nor was it affected when she served as a member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila during the incumbency of her husband as President of the nation. Under
Article 110 of the Civil Code, it was only her husband who could change the family domicile in Batac and the
evidence shows he did not effect any such change. To a large degree, this follows the common law that "a woman
on her marriage loses her own domicile and by operation of law, acquires that of her husband, no matter where the
wife actually lives or what she believes or intends."7

Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former President
Marcos on petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools of
thought contend for acceptance. One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily
relying on American authorities. He echoes the theory that after the husband's death, the wife retains the last
8

domicile of her husband until she makes an actual change.

I do not subscribe to this submission. The American case law that the wife still retains her dead husband's domicile
is based on ancient common law which we can no longer apply in the Philippine setting today. The common law
identified the domicile of a wife as that of the husband and denied to her the power of acquiring a domicile of her
own separate and apart from him. Legal scholars agree that two (2) reasons support this common law doctrine.
9

The first reason as pinpointed by the legendary Blackstone is derived from the view that "the very being or legal
existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the husband." The second reason lies in "the
10

desirability of having the interests of each member of the family unit governed by the same
law." The presumption that the wife retains the domicile of her deceased husband is an extension of this common
11

law concept. The concept and its extension have provided some of the most iniquitous jurisprudence against
women. It was under common law that the 1873 American case of Bradwell v. Illinois was decided where women
12

were denied the right to practice law. It was unblushingly ruled that "the natural and proper timidity and delicacy
which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . This is the law of the
Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS and AM JUR 2d are American state court
13 14

decisions handed down between the years 1917 and 1938, or before the time when women were accorded
15 16

equality of rights with men. Undeniably, the women's liberation movement resulted in far-ranging state legislations in
the United States to eliminate gender inequality. Starting in the decade of the seventies, the courts likewise
17

liberalized their rulings as they started invalidating laws infected with gender-bias. It was in 1971 when the US
Supreme Court in Reed v. Reed, struck a big blow for women equality when it declared as unconstitutional an
18

Idaho law that required probate courts to choose male family members over females as estate administrators. It held
that mere administrative inconvenience cannot justify a sex-based distinction. These significant changes both in law
and in case law on the status of women virtually obliterated the iniquitous common law surrendering the rights of
married women to their husbands based on the dubious theory of the parties' theoretic oneness. The Corpus Juris
Secundum editors did not miss the relevance of this revolution on women's right as they observed: "However, it has
been declared that under modern statutes changing the status of married women and departing from the common
law theory of marriage, there is no reason why a wife may not acquire a separate domicile for every purpose known
to the law." In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable
19

American Law Institute also categorically stated that the view of Blackstone ". . . is no longer held. As the result of
statutes and court decisions, a wife now possesses practically the same rights and powers as her unmarried
sister." 20

In the case at bench, we have to decide whether we should continue clinging to the anachronistic common law that
demeans women, especially married women. I submit that the Court has no choice except to break away from this
common law rule, the root of the many degradations of Filipino women. Before 1988, our laws particularly the Civil
Code, were full of gender discriminations against women. Our esteemed colleague, Madam Justice Flerida Ruth
Romero, cited a few of them as follows: 21

xxx xxx xxx

Legal Disabilities Suffered by Wives

Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or
disabilities. For instance, the wife cannot accept gifts from others, regardless of the sex of the giver
or the value of the gift, other than from her very close relatives, without her husband's consent. She
may accept only from, say, her parents, parents-in-law, brothers, sisters and the relatives within the
so-called fourth civil degree. She may not exercise her profession or occupation or engage in
business if her husband objects on serious grounds or if his income is sufficient to support their
family in accordance with their social standing. As to what constitutes "serious grounds" for
objecting, this is within the discretion of the husband.

xxx xxx xxx

Because of the present inequitable situation, the amendments to the Civil Law being proposed by
the University of the Philippines Law Center would allow absolute divorce which severes the
matrimonial ties, such that the divorced spouses are free to get married a year after the divorce is
decreed by the courts. However, in order to place the husband and wife on an equal footing insofar
as the bases for divorce are concerned, the following are specified as the grounds for absolute
divorce: (1) adultery or having a paramour committed by the respondent in any of the ways specified
in the Revised Penal Code or (2) an attempt by the respondent against the life of the petitioner which
amounts to attempted parricide under the Revised Penal Code; (3) abandonment of the petitioner by
the respondent without just cause for a period of three consecutive years; or (4) habitual
maltreatment.

With respect to property relations, the husband is automatically the administrator of the conjugal
property owned in common by the married couple even if the wife may be the more astute or
enterprising partner. The law does not leave it to the spouses to decide who shall act as such
administrator. Consequently, the husband is authorized to engage in acts and enter into transactions
beneficial to the conjugal partnership. The wife, however, cannot similarly bind the partnership
without the husband's consent.

And while both exercise joint parental authority over their children, it is the father whom the law
designates as the legal administrator of the property pertaining to the unemancipated child.

Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate
inequality between men and women in our land. The watershed came on August 3, 1988 when our Family
Code took effect which, among others, terminated the unequal treatment of husband and wife as to their
rights and responsibilities.22
The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-based
privileges of husbands. Among others, married women are now given the joint right to administer the family
property, whether in the absolute community system or in the system of conjugal partnership; joint parental
23

authority over their minor children, both over their persons as well as their properties; joint responsibility for the
24

support of the family; the right to jointly manage the household; and, the right to object to their husband's exercise
25 26

of profession, occupation, business or activity. Of particular relevance to the case at bench is Article 69 of the
27

Family Code which took away the exclusive right of the husband to fix the family domicile and gave it jointly to the
husband and the wife, thus:

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall
decide.

The court may exempt one spouse from living with the other if the latter should live abroad or there
are other valid and compelling reasons for the exemption. However, such exemption shall not apply
if the same is not compatible with the solidarity of the family. (Emphasis supplied)

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to live
together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances when a
wife may now refuse to live with her husband, thus: 28

(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases like:

(a) If the place chosen by the husband as family residence is dangerous to her Life;

(b) If the husband subjects her to maltreatment or abusive conduct or insults, making
common life impossible;

(c) If the husband compels her to live with his parents, but she cannot get along with
her mother-in-law and they have constant quarrels (Del Rosario v. Del Rosario, CA,
46 OG 6122);

(d) Where the husband has continuously carried illicit relations for 10 years with
different women and treated his wife roughly and without consideration. (Dadivas v.
Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving no money to his family for
food and necessities, and at the same time insulting his wife and laying hands on
her. (Panuncio v. Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1
Manresa 329);

(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38

La. Ann. 70).

The inescapable conclusion is that our Family Code has completely emancipated the wife from the control
of the husband, thus abandoning the parties' theoretic identity of interest. No less than the late revered Mr.
Justice J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law Center gave this
insightful view in one of his rare lectures after retirement: 29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as to emancipate the wife from the
exclusive control of the husband and to place her at parity with him insofar as the family is
concerned. The wife and the husband are now placed on equal standing by the Code. They are now
joint administrators of the family properties and exercise joint authority over the persons and
properties of their children. This means a dual authority in the family. The husband will no longer
prevail over the wife but she has to agree on all matters concerning the family. (Emphasis supplied)

In light of the Family Code which abrogated the inequality between husband and wife as started and
perpetuated by the common law, there is no reason in espousing the anomalous rule that the wife still
retains the domicile of her dead husband. Article 110 of the Civil Code which provides the statutory support
for this stance has been repealed by Article 69 of the Family Code. By its repeal, it becomes a dead-letter
law, and we are not free to resurrect it by giving it further effect in any way or manner such as by ruling that
the petitioner is still bound by the domiciliary determination of her dead husband.

Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of due
process and equal protection of
law. It can hardly be doubted that the common law imposition on a married woman of her dead husband's domicile
30

even beyond his grave is patently discriminatory to women. It is a gender-based discrimination and is not rationally
related to the objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed, compared
with our previous fundamental laws, the 1987 Constitution is more concerned with equality between sexes as it
explicitly commands that the State ". . . shall ensure fundamental equality before the law of women and men." To be
exact, section 14, Article II provides: "The State recognizes the role of women in nation building, and shall ensure
fundamental equality before the law of women and men. We shall be transgressing the sense and essence of this
constitutional mandate if we insist on giving our women the caveman's treatment.

Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her
Tacloban domicile upon the death of her husband in 1989. This is the necessary consequence of the view that
petitioner's Batac dictated domicile did not continue after her husband's death; otherwise, she would have no
domicile and that will violate the universal rule that no person can be without a domicile at any point of time. This
stance also restores the right of petitioner to choose her domicile before it was taken away by Article 110 of the Civil
Code, a right now recognized by the Family Code and protected by the Constitution. Likewise, I cannot see the
fairness of the common law requiring petitioner to choose again her Tacloban domicile before she could be released
from her Batac domicile. She lost her Tacloban domicile not through her act but through the act of her deceased
husband when he fixed their domicile in Batac. Her husband is dead and he cannot rule her beyond the grave. The
law disabling her to choose her own domicile has been repealed. Considering all these, common law should not put
the burden on petitioner to prove she has abandoned her dead husband's domicile. There is neither rhyme nor
reason for this gender-based burden.

But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her Tacloban
domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted to the respondent
COMELEC, petitioner averred:

xxx xxx xxx

36. In November, 1991, I came home to our beloved country, after several requests for my return
were denied by President Corazon C. Aquino, and after I filed suits for our Government to issue me
my passport.

37. But I came home without the mortal remains of my beloved husband, President Ferdinand E.
Marcos, which the Government considered a threat to the national security and welfare.

38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in
Olot, Tolosa, Leyte, even if my residences there were not livable as they had been destroyed and
cannibalized. The PCGG, however, did not permit and allow me.

39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a
friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter rented, and
Pacific Plaza, all in Makati.

40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San
Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered
residences in Tacloban City and Barangay Olot, Tolosa, Leyte.

40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year,
I renovated my parents' burial grounds and entombed their bones which had been
excalvated, unearthed and scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for
permissions to —

. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . .

. to make them livable for us the Marcos family to have a home in our own
motherland.

xxx xxx xxx

42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col.
Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my Leyte
residences. I quote part of his letter:

Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends
to visit our sequestered properties in Leyte, please allow her access thereto. She
may also cause repairs and renovation of the sequestered properties, in which event,
 it shall be understood that her undertaking said repairs is not authorization for her to
take over said properties, and that all expenses shall be for her account and not
reimbursable. Please extend the necessary courtesy to her.

xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Niño Shrine residence in Tacloban City
where I wanted to stay and reside, after repairs and renovations were completed. In August 1994, I
transferred from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when
PCGG permitted me to stay and live there.

It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not disputed
that in 1992, she first lived at the house of her brother in San Jose, Tacloban City and later, in August 1994,
she transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of
Olot are within the First District of Leyte. Since petitioner reestablished her old domicile in 1992 in the First
District of Leyte, she more than complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e., the May 8,
1995 elections.

The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He presented
petitioner's Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay Olot,
Tolosa, Leyte wherein she stated that her period of residence in said barangay was six (6) months as of the date of
her filing of said Voter's Registration Record on January 28, 1995. This statement in petitioner's Voter's
31

Registration Record is a non-prejudicial admission. The Constitution requires at least one (1) year residence in
the district in which the candidate shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioner's statement proved that she resided in Olot six (6) months before January 28, 1995 but did not
disprove that she has also resided in Tacloban City starting 1992. As aforestated, Olot and Tacloban City are both
within the First District of Leyte, hence, her six (6) months residence in Olot should be counted not against, but in
her favor. Private respondent also presented petitioner's Certificate of Candidacy filed on March 8, 1995 where she
32

placed seven (7) months after Item No. 8 which called for information regarding "residence in the constituency
where I seek to be elected immediately preceding the election." Again, this original certificate of candidacy has no
evidentiary value because an March 1, 1995 it was corrected by petitioner. In her Amended/Corrected Certificate of
Candidacy, petitioner wrote "since childhood" after Item No. 8. The amendment of a certificate of candidacy to
33

correct a bona fide mistake has been allowed by this Court as a matter of course and as a matter of right. As we
held in Alialy v. COMELEC, viz.:
34

xxx xxx xxx

The absence of the signature of the Secretary of the local chapter N.P in the original certificate of
candidacy presented before the deadline September 11, 1959, did not render the certificate
invalid. The amendment of the certificate, although at a date after the deadline, but before the
election, was substantial compliance with the law, and the defect was cured.

It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995 cannot be
used as evidence against her. Private respondent's petition for the disqualification of petitioner rested alone
on these two (2) brittle pieces of documentary evidence — petitioner's Voter's Registration Record and her
original Certificate of Candidacy. Ranged against the evidence of the petitioner showing her ceaseless
contacts with Tacloban, private respondent's two (2) pieces of evidence are too insufficient to disqualify
petitioner, more so, to deny her the right to represent the people of the First District of Leyte who have
overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office shall be
free from any form of harassment and discrimination." A detached reading of the records of the case at bench will
35

show that all forms of legal and extra-legal obstacles have been thrown against petitioner to prevent her from
running as the people's representative in the First District of Leyte. In petitioner's Answer to the petition to disqualify
her, she averred: 36

xxx xxx xxx

10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is devious.
When respondent (petitioner herein) announced that she was intending to register as a voter in
Tacloban City and run for Congress in the First District of Leyte, petitioner (Montejo) immediately
opposed her intended registration by writing a letter stating that "she is not a resident of said city but
of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent
(petitioner herein) had registered as a voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer the town of
Tolosa from the First District to the Second District and pursued such move up to the Supreme Court
in G.R. No. 118702, his purpose being to remove respondent (petitioner herein) as petitioner's
(Montejo's) opponent in the congressional election in the First District. He also filed a bill, along with
 other Leyte Congressmen, seeking to create another legislative district, to remove the town of
Tolosa out of the First District and to make it a part of the new district, to achieve his purpose.
However, such bill did not pass the Senate. Having, failed on such moves, petitioner now filed the
instant petition, for the same objective, as it is obvious that he is afraid to submit himself along with
respondent (petitioner herein) for the judgment and verdict of the electorate of the First District of
Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995.

These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion, held: 37

xxx xxx xxx

Prior to the registration date — January 28, 1995 the petitioner (herein private respondent Montejo)
wrote the Election Officer of Tacloban City not to allow respondent (petitioner herein) to register
thereat since she is a resident of Tolosa and not Tacloban City. The purpose of this move of the
petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the matter of the
Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New
Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G.
Montejo, Representative, First District of Leyte, wanted the Municipality of Tolosa, in the First District
of Leyte, transferred to the Second District of Leyte. The Hon. Sergio A.F. Apostol, Representative of
the Second District of Leyte, opposed the move of the petitioner (Montejo). Under Comelec
Resolution No. 2736 (December 29, 1994), the Commission on Elections refused to make the
proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995.
Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo Roy G.
Montejo vs. Commission on Elections, G.R. No. 118702) questioning the resolution of the
Commission. Believing that he could get a favorable ruling from the Supreme Court, petitioner
(Montejo) tried to make sure that the respondent (petitioner herein) will register as a voter in Tolosa
so that she will be forced to run as Representative not in the First but in the Second District.

It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a
"Decision," penned by Associate Justice Reynato S. Puno, the dispositive portion of which reads:

IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the

municipality of Capoocan of the Second District and the municipality of Palompon of
the Fourth District to the Third District of the province of Leyte, is annulled and set
aside. We also deny the Petition praying for the transfer of the municipality of Tolosa
from the First District to the Second District of the province of Leyte. No costs.

Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was constrained to
register in the Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In
any case, both Tacloban City and Tolosa are in the First Legislative District.

All these attempts to misuse our laws and legal processes are forms of rank harassments and invidious
discriminations against petitioner to deny her equal access to a public office. We cannot commit any
hermeneutic violence to the Constitution by torturing the meaning of equality, the end result of which will
allow the harassment and discrimination of petitioner who has lived a controversial life, a past of alternating
light and shadow. There is but one Constitution for all Filipinos. Petitioner cannot be adjudged by a
"different" Constitution, and the worst way to interpret the Constitution is to inject in its interpretation, bile
and bitterness.

Sixth. In Gallego v. Vera, we explained that the reason for this residence requirement is "to exclude a stranger or
38

newcomer, unacquainted, with the conditions and needs of a community and not identified with the latter, from an
elective office to serve that community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be
contested. Nobody can claim that she is not acquainted with its problems because she is a stranger to the place.
None can argue she cannot satisfy the intent of the Constitution.

Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the electorate.
The election results show that petitioner received Seventy Thousand Four Hundred Seventy-one (70,471) votes,
while private respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is
clearly the overwhelming choice of the electorate of the First District of Leyte and this is not a sleight of statistics.
We cannot frustrate this sovereign will on highly arguable technical considerations. In case of doubt, we should lean
towards a rule that will give life to the people's political judgment.

A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status
between women and men by rejecting the iniquitous common law precedents on the domicile of married women and
by redefining domicile in accord with our own culture, law, and Constitution. To rule that a married woman is
eternally tethered to the domicile dictated by her dead husband is to preserve the anachronistic and anomalous
balance of advantage of a husband over his wife. We should not allow the dead to govern the living even if the
glories of yesteryears seduce us to shout long live the dead! The Family Code buried this gender-based
discrimination against married women and we should not excavate what has been entombed. More importantly, the
Constitution forbids it.

I vote to grant the petition.

Bellosillo and Melo, JJ., concur.

FRANCISCO, J., concurring:

I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of the
First Congressional District of Leyte. I wish, however, to express a few comments on the issue of petitioner's
domicile.

Domicile has been defined as that place in which a person's habitation is fixed, without any present intention of
removing therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode,
or habitation, not for a mere special or temporary purpose, but with a present intention of making it his permanent
home (28 C.J.S. §1). It denotes a fixed permanent residence to which when absent for business, or pleasure, or for
like reasons one intends to return, and depends on facts and circumstances, in the sense that they disclose intent.
(Ong Huan Tin v. Republic, 19 SCRA 966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a domicile
of origin, which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally
dependent at the time of his birth. While the domicile of origin is generally the place where one is born or reared, it
maybe elsewhere (28 C.J.S. §5). Domicile of choice, on the other hand, is the place which the person has elected
and chosen for himself to displace his previous domicile; it has for its true basis or foundation the intention of the
person (28 C.J.S. §6). In order to hold that a person has abandoned his domicile and acquired a new one called
domicile of choice, the following requisites must concur, namely, (a) residence or bodily presence in the new locality,
(b) intention to remain there or animus manendi, and (c) an intention to abandon the old domicile or animus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A third classification is domicile by
operation of law which attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the relation of a parent
and a child (28 C.J.S. §7).

In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral
Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind,
public respondent Commission on Elections misapplied this concept, of domicile which led to petitioner's
disqualification by ruling that petitioner failed to comply with the constitutionally mandated one-year residence
requirement. Apparently, public respondent Commission deemed as conclusive petitioner's stay and registration as
voter in many places as conduct disclosing her intent to abandon her established domicile of origin in Tacloban,
Leyte. In several decisions, though, the Court has laid down the rule that registration of a voter in a place other than
his place of origin is not sufficient to constitute abandonment or loss of such residence (Faypon v. Quirino, 96 Phil.
294, 300). Respondent Commission offered no cogent reason to depart from this rule except to surmise petitioner's
intent of abandoning her domicile of origin.

It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her marriage, a
domicile by operation of law. The proposition is that upon the death of her husband in 1989 she retains her
husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual change thereof. I find this proposition quite
untenable.

Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac, Ilocos
Norte, upon her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the domicile of her
husband. In my view, the reason for the law is for the spouses to fully and effectively perform their marital duties and
obligations to one another. The question of domicile, however, is not affected by the fact that it was the legal or
1

moral duty of the individual to reside in a given place (28 C.J.S. §11). Thus, while the wife retains her marital
domicile so long as the marriage subsists, she automatically loses it upon the latter's termination, for the reason
behind the law then ceases. Otherwise, petitioner, after her marriage was ended by the death of her husband, would
be placed in a quite absurd and unfair situation of having been freed from all wifely obligations yet made to hold on
to one which no longer serves any meaningful purpose.

It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death
without even signifying her intention to that effect. It is for the private respondent to prove, not for petitioner to
disprove, that petitioner has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other
place/s. The clear rule is that it is the party (herein private respondent) claiming that a person has abandoned or lost
his residence of origin who must show and prove preponderantly such abandonment or loss (Faypon v.
Quirino, supra at 298; 28 C.J.S. §16), because the presumption is strongly in favor of an original or former domicile,
as against an acquired one (28 C.J.S. §16). Private respondent unfortunately failed to discharge this burden as the
record is devoid of convincing proof that petitioner has acquired whether voluntarily or involuntarily, a new domicile
to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year residence
requirement. After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the
Presidential Commission on Good Government which sequestered her residential house and other properties
forbade her necessitating her transient stay in various places in Manila (Affidavit p.6, attached as Annex I of the
Petition). In 1992, she ran for the position of president writing in her certificate of candidacy her residence as San
Juan, Metro Manila. After her loss therein, she went back to Tacloban City, acquired her residence certificate and 2

resided with her brother in San Jose. She resided in San Jose, Tacloban City until August of 1994 when she was
allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte (Annex I, p.
6). It was in the same month of August when she applied for the cancellation of her previous registration in San
3

Juan, Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on January 28, 1995.
From this sequence of events, I find it quite improper to use as the reckoning period of the one-year residence
requirement the date when she applied for the cancellation of her previous registration in San Juan, Metro Manila.
The fact which private respondent never bothered to disprove is that petitioner transferred her residence after the
1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and resided therein until August
of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa,
Leyte are within the First Congressional District of Leyte, it indubitably stands that she had more than a year of
residence in the constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied with the
one-year qualification required by the 1987 Constitution.

I vote to grant the petition.

ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running for
Representative of her District and that, in the event that she should, nevertheless, muster a majority vote, her
proclamation should be suspended. Not by a straightforward ruling did the COMELEC pronounce its decision as has
been its unvarying practice in the past, but by a startling succession of "reverse somersaults." Indicative of its
shifting stance vis-a-vis petitioner's certificate of candidacy were first, the action of its Second Division disqualifying
her and canceling her original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the
COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then because she
persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the canvass
should show that she obtained the highest number of votes (obviously noting that petitioner had won
overwhelmingly over her opponent), but almost simultaneously reversing itself by directing that even if she wins, her
proclamation should nonetheless be suspended.

Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to be given
to the one-year residency requirement imposed by the Constitution on aspirants for a Congressional seat. 1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election purposes, it is
important to determine whether petitioner's domicile was in the First District of Leyte and if so, whether she had
resided there for at least a period of one year. Undisputed is her domicile of origin, Tacloban, where her parents
lived at the time of her birth. Depending on what theory one adopts, the same may have been changed when she
married Ferdinand E. Marcos, then domiciled in Batac, by operation of law. Assuming it did, his death certainly
released her from the obligation to live with him at the residence fixed by him during his lifetime. What may confuse
the layman at this point is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice," or
"domicile by operation of law," which subject we shall not belabor since it has been amply discussed by
the ponente and in the other separate opinions.

In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's death on
the domicile of the widow. Some scholars opine that the widow's domicile remains unchanged; that the deceased
husband's wishes perforce still bind the wife he has left behind. Given this interpretation, the widow cannot possibly
go far enough to sever the domiciliary tie imposed by her husband.

It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile of the
family, as laid down in the Civil Code, but to continue giving obeisance to his wishes even after the rationale
2

underlying the mutual duty of the spouses to live together has ceased, is to close one's eyes to the stark realities of
the present.

At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the demise of
her husband. Does the law so abhor a vacuum that the widow has to be endowed somehow with a domicile? To
answer this question which is far from rhetorical, one will have to keep in mind the basic principles of domicile.
Everyone must have a domicile. Then one must have only a single domicile for the same purpose at any given time.
Once established, a domicile remains until a new one is acquired, for no person lives who has no domicile, as
defined by the law be is subject to.

At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky by the
conflicting opinions of foreign legal authorities. This being the state of things, it is imperative as it is opportune to
illumine the darkness with the beacon light of truth, as dictated by experience and the necessity of according
petitioner her right to choose her domicile in keeping with the enlightened global trend to recognize and protect the
human rights of women, no less than men.

Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are concerned, is
a relatively recent phenomenon that took seed only in the middle of this century. It is a historical fact that for over
three centuries, the Philippines had been colonized by Spain, a conservative, Catholic country which transplanted to
our shores the Old World cultures, mores and attitudes and values. Through the imposition on our government of
the Spanish Civil Code in 1889, the people, both men and women, had no choice but to accept such concepts as
the husband's being the head of the family and the wife's subordination to his authority. In such role, his was the
right to make vital decisions for the family. Many instances come to mind, foremost being what is related to the issue
before us, namely, that "the husband shall fix the residence of the family." Because he is made responsible for the
3

support of the wife and the rest of the family, he is also empowered to be the administrator of the conjugal property,
4

with a few exceptions and may, therefore, dispose of the conjugal partnership property for the purposes
5

specified under the law; whereas, as a general rule, the wife cannot bind the conjugal partnership without
6

the husband's consent. As regards the property pertaining to the children under parental authority, the
7

father is the legal administrator and only in his absence may the mother assume his powers. Demeaning to 8

the wife's dignity are certain strictures on her personal freedoms, practically relegating her to the position
of minors and disabled persons. To illustrate a few: The wife cannot, without the husband's consent,
acquire any gratuitous title, except from her ascendants, descendants, parents-in-law, and collateral
relatives within the fourth degree. With respect to her employment, the husband wields a veto power in the
9

case the wife exercises her profession or occupation or engages in business, provided his income is
sufficient for the family, according to its social standing and his opposition is founded on serious and valid
grounds. Most offensive, if not repulsive, to the liberal-minded is the effective prohibition upon a widow to
10

get married till after three hundred days following the death of her husband, unless in the meantime, she
has given birth to a child. The mother who contracts a subsequent marriage loses the parental authority
11

over her children, unless the deceased husband, father of the latter, has expressly provided in his will that
his widow might marry again, and has ordered that in such case she should keep and exercise parental
authority over their children. Again, an instance of a husband's overarching influence from beyond the
12

grave.

All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from
them until the concept of human rights and equality between and among nations and individuals found
hospitable lodgment in the United Nations Charter of which the Philippines was one of the original
signatories. By then, the Spanish "conquistadores" had been overthrown by the American forces at the turn
of the century. The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and
women." (Emphasis supplied)

It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning
of the feminist movement. What may be regarded as the international bill of rights for women was
implanted in the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) adopted by the U.N. General Assembly which entered into force as an international treaty
on September 3, 1981. In ratifying the instrument, the Philippines bound itself to implement its
liberating spirit and letter, for its Constitution, no less, declared that "The Philippines. . . adopts the
generally accepted principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all nations." One such
13

principle embodied in the CEDAW is granting to men and women "the same rights with regard to the
law relating to the movement of persons and the freedom to choose their residence and
domicile." (Emphasis supplied).
14

CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987
Constitution of the Philippines and later, in the Family Code, both of which were speedily approved by the
15

first lady President of the country, Corazon C. Aquino. Notable for its emphasis on the human rights of all
individuals and its bias for equality between the sexes are the following provisions: "The State values the
dignity of every human person and guarantees full respect for human rights" and "The State recognizes
16

the role of women in nation-building, and shall ensure the fundamental equality before the law of women
and men." 17

A major accomplishment of women in their quest for equality with men and the elimination of discriminatory
provisions of law was the deletion in the Family Code of almost all of the unreasonable strictures on wives and the
grant to them of personal rights equal to that of their husbands. Specifically, the husband and wife are now
given the right jointly to fix the family domicile; concomitant to the spouses' being jointly responsible for the support
18

of the family is the right and duty of both spouses to manage the household; the administration and the enjoyment
19

of the community property shall belong to both spouses jointly; the father and mother shall now jointly exercise
20

legal guardianship over the property of their unemancipated common child and several others.
21

Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress passed a
law popularly known as "Women in Development and Nation Building Act" Among the rights given to married
22

women evidencing their capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements under
the same conditions as men;

(2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans
and non material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and

(4) Married women shall have rights equal to those of married men in applying for passports, secure visas and other
travel documents, without need to secure the consent of their spouses.

As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the first
to respond to its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's full
participation in decision-making at all levels, including the family" should be removed. Having been herself a
Member of the Philippine Delegation to the International Women's Year Conference in Mexico in 1975, this writer is
only too keenly aware of the unremitting struggle being waged by women the world over, Filipino women not
excluded, to be accepted as equals of men and to tear down the walls of discrimination that hold them back from
their proper places under the sun.

In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights
to women hitherto denied them and eliminating whatever pockets of discrimination still exist in their civil, political and
social life, can it still be insisted that widows are not at liberty to choose their domicile upon the death of their
husbands but must retain the same, regardless?

I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the domicile of the
departed husband, if at all she was before. Neither does she automatically revert to her domicile of origin, but
exercising free will, she may opt to reestablish her domicile of origin. In returning to Tacloban and subsequently, to
Barangay Olot, Tolosa, both of which are located in the First District of Leyte, petitioner amply demonstrated by
overt acts, her election of a domicile of choice, in this case, a reversion to her domicile of origin. Added together, the
time when she set up her domicile in the two places sufficed to meet the one-year requirement to run as
Representative of the First District of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.

VITUG, J., separate opinion:

The case at bench deals with explicit Constitutional mandates.

The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and
render steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A
compliant transience of a constitution belittles its basic function and weakens its goals. A constitution may well
become outdated by the realities of time. When it does, it must be changed but while it remains, we owe it respect
and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the answer to perceived transitory
needs, let alone societal attitudes, or the Constitution might lose its very essence.

Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by
necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).

The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These
provisions read:

Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born

citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to
read and write, and, except the party-list representatives, a registered voter in the district in which he
shall be elected, and a resident thereof for a period of not less than one year immediately preceding
the day of the election.

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and
regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to
the contrary, should include its authority to pass upon the qualification and disqualification prescribed by law
of candidates to an elective office. Indeed, pre-proclamation controversies are expressly placed under the
COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).

The matter before us specifically calls for the observance of the constitutional one-year residency requirement. The
issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least
inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long
established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion,"
are not reviewable by this Court.

I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term
"residence" has a broader connotation that may mean permanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For
civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a
natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling
rule is that heretofore announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226
SCRA 408, 409); thus:

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term
"residence" as used in the election law is synonymous with "domicile," which imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention." "Domicile" denotes a fixed permanent residence to which when absent
for business or pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new
domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an
intention to remain there, and (3) an intention to abandon the old domicile. In other words, there
must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or
at the domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual.

Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave
abuse of discretion in its assailed resolution.

The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral
Tribunal concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since
become a "member" of the Senate or the House of Representatives. The question can be asked on whether or not
the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the
number of votes cast in an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of
which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC, in its
particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be
required by law before a proclamation is properly done.

The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of
authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their
exclusive domain. The nagging question, if it were otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to
the election, returns and qualification" of its members.

Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of
Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly:

REPUBLIC ACT NO. 6646

xxx xxx xxx

Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.

BATAS PAMBANSA BLG. 881

xxx xxx xxx

Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give
priority to cases of disqualification by reason of violation of this Act to the end that a final decision
 shall be rendered not later than seven days before the election in which the disqualification is
sought.

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not
declared by final, judgment before an election to be disqualified, and he is voted for and receives the
winning number of votes in such election, his violation of the provisions of the preceding sections
shall not prevent his proclamation and assumption to office.

I realize that in considering the significance of the law, it may be preferable to look for not so much the specific
instances they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that
it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as
such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated in the case
of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA
687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case
of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253
[1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito
vs. Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa,
Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices
Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labo decision:

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he was obviously not the choice of
the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740)
decided in 1985. In that case, the candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were
all disregard as stray. In effect, the second placer won by default. That decision was supported by
eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin,
Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee,
Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana
and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and
democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio
v. Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with
Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and
Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.)
another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion,
Jr., J.) There the Court held:

. . . it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that
they do not choose him.

Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)

The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote
the winner into office or maintain him there. However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere
belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or
meaningless. (at pp. 20-21)

Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J., separate opinion:

In my view the issue in this case is whether the Commission on Elections has the power to disqualify candidates on
the ground that they lack eligibility for the office to which they seek to be elected. I think that it has none and that the
qualifications of candidates may be questioned only in the event they are elected, by filing a petition for quo
warranto or an election protest in the appropriate forum, not necessarily in the COMELEC but, as in this case, in the
House of Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in the
COMELEC is of no moment. Such proceedings were unauthorized and were not rendered valid by their agreement
to submit their dispute to that body.

The various election laws will be searched in vain for authorized proceedings for determining a candidate's
qualifications for an office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the
Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166).
There are, in other words, no provisions for pre-proclamation contests but only election protests or quo
warranto proceedings against winning candidates.

To be sure, there are provisions denominated for "disqualification," but they are not concerned with a declaration of
the ineligibility of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence or
conviction of an offense) of a person either to be a candidate or to continue as a candidate for public office. There is
also a provision for the denial or cancellation of certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated in the certificates.

These provisions are found in the following parts of the Omnibus Election Code:

§ 12. Disqualifications. — Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for
any offense for which he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless
he has been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis added)

§ 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is

declared by final decision of a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence requirement provided for
in the election laws. (Emphasis added)

§ 78. Petition to deny due course to or cancel a certificate of

candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election. (Emphasis added)

the Electoral Reforms Law of 1987 (R.A. No. 6646):

§ 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest and; upon motion for the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Emphasis added).

§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure

hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of
candidacy as provided in Section 78 of Batas Pambansa Blg. 881.
 and the Local Government Code of 1991 (R.A. No. 7160):

§ 40. Disqualifications. — The following persons are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of on administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad
and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation and
Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made material
representations in her certificate of candidacy which were false, it sought her disqualification on the ground that "on
the basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified from running for the
position of Representative, considering that on election day, May 8, 1995, [she] would have resided less than ten
(10) months in the district where she is seeking to be elected." For its part, the COMELEC's Second Division, in its
resolution of April 24, 1995, cancelled her certificate of candidacy and corrected certificate of candidacy on the basis
of its finding that petitioner is "not qualified to run for the position of Member of the House of Representatives for the
First Legislative District of Leyte" and not because of any finding that she had made false representations as to
material matters in her certificate of candidacy.

Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy
under § 78 of the Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It is
important to note this, because, as will presently be explained, proceedings under § 78 have for their purpose to
disqualify a person from being a candidate, whereas quo warranto proceedings have for their purpose to disqualify
a person from holding public office. Jurisdiction over quo warranto proceedings involving members of the House of
Representatives is vested in the Electoral Tribunal of that body.

Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of candidacy, the
allegations were that the respondent candidates had made false representations in their certificates of candidacy
with regard to their citizenship, age, or residence. But in the generality of cases in which this Court passed upon
1 2 3

the qualifications of respondents for office, this Court did so in the context of election protests or quo
4

warranto proceedings filed after the proclamation of the respondents or protestees as winners.
5

Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the
qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his
eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting
election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification is being sought. That is
why it is provided that if the grounds for disqualification are established, a candidate will not be voted for; if he has
been voted for, the votes in his favor will not be counted; and if for some reason he has been voted for and he has
won, either he will not be proclaimed or his proclamation will be set aside. 6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his
domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination
of Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to
the summary character of proceedings relating to certificates of candidacy. That is why the law makes the receipt of
certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state
7

in their certificates of candidacy that they are eligible for the position which they seek to fill, leaving the
determination of their qualifications to be made after the election and only in the event they are elected. Only in
cases involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice
President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to
preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election, returns and qualifications of members of Congress or of the President
and Vice President, as the case may be.

By providing in § 253 for the remedy of quo warranto for determining an elected official's qualifications after the
results of elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the
same ground, the Omnibus Election Code, or OEC, by its silence underscores the policy of not authorizing any
inquiry into the qualifications of candidates unless they have been elected.

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in Rule 25, § 1 the following:

Grounds for disqualification. — Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such
an act is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the
exercise of its rulemaking power under Art. IX, A, § 6 of the Constitution, cannot do. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the right to vote, which
essentially involves an inquiry into qualifications based on age, residence and citizenship of voters. (Art. IX, C, §
2(3))

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in their grounds but also in their consequences are
proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in §§ 12 and 68 of the Omnibus Election Code and
in § 40 of the Local Government Code and are for the purpose of barring an individual from becoming a candidate
or from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the
race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is not
disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this
sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in § 2 of
the law does not imply that he does not suffer from any of disqualifications provided in § 4.

Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or
offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the proclamation
and prolonging the election protest," through the use of "manufactured" election returns or resort to other trickery for
8

the purpose of altering the results of the election. This rationale does not apply to cases for determining a
candidate's qualifications for office before the election. To the contrary, it is the candidate against whom a
proceeding for disqualification is brought who could be prejudiced because he could be prevented from assuming
office even though in end he prevails.

To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or action
for quo warranto filed pursuant to § 253 of the Omnibus Election Code within 10 days after his proclamation. With
respect to elective local officials (e.g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.)
such petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as
provided in Art. IX, C, § 2(2) of the Constitution. In the case of the President and Vice President, the petition must be
filed with the Presidential Electoral Tribunal (Art. VII, § 4, last paragraph), and in the case of the Senators, with the
Senate Electoral Tribunal, and in the case of Congressmen, with the House of Representatives Electoral Tribunal.
(Art. VI, § 17) There is greater reason for not allowing before the election the filing of disqualification proceedings
based on alleged ineligibility in the case of candidates for President, Vice President, Senators and members of the
House of Representatives, because of the same policy prohibiting the filing of pre-proclamation cases against such
candidates.

For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its
proceedings in that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda
Romualdez-Marcos for the office of Representative of the First District of Leyte may only be inquired into by the
HRET.

Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA No. 95-
009, including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring
petitioner Imelda Romualdez-Marcos ineligible and ordering her proclamation as Representative of the First District
of Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the
disqualification of candidates on the ground of ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of petitioner.

Narvasa, C.J., concurs.

PADILLA, J., dissenting:

I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice Kapunan.

As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the provision
itself. The controversy should not be blurred by what, to me, are academic disquisitions. In this particular
controversy, the Constitutional provision on point states that — "no person shall be a member of the House of
Representatives unless he is a natural-born citizen of the Philippines, and on the day of the election, is at least
twenty-five (25) years of age, able to read and write, and except the party list representatives, a registered voter in
the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately
preceding the day of the election." (Article VI, section 6)

It has been argued that for purposes of our election laws, the term residence has been understood as synonymous
with domicile. This argument has been validated by no less than the Court in numerous cases where significantly
1

the factual circumstances clearly and convincingly proved that a person does not effectively lose his domicile of
origin if the intention to reside therein is manifest with his personal presence in the place, coupled with conduct
indicative of such intention.

With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the phrase "a
resident thereof (meaning, the legislative district) for a period of not less than one year" would fit.

The first instance is where a person's residence and domicile coincide in which case a person only has to prove that
he has been domiciled in a permanent location for not less than a year before the election.

A second situation is where a person maintains a residence apart from his domicile in which case he would have the
luxury of district shopping, provided of course, he satisfies the one-year residence period in the district as the
minimum period for eligibility to the position of congressional representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to his
domicile of origin, or better still, domicile of choice; neither would one be disqualified for abandoning altogether his
domicile in favor of his residence in the district where he desires to be a candidate.

The most extreme circumstance would be a situation wherein a person maintains several residences in different
districts. Since his domicile of origin continues as an option as long as there is no effective abandonment (animus
non revertendi), he can practically choose the district most advantageous for him.

All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of not less
than one year immediately preceding the day of the election", he must be a resident in the district where he desires
to be elected.

To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to be
synonymous with "domicile." In other words, the candidate's intent and actual presence in one district must
in all situations satisfy the length of time prescribed by the fundamental law. And this, because of a definite
Constitutional purpose. He must be familiar with the environment and problems of a district he intends to represent
in Congress and the one-year residence in said district would be the minimum period to acquire such familiarity, if
not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed decision of
the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc) —

In or about 1938 when respondent was a little over 8 years old, she established her domicile in
Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to
1948 when she graduated from high school. She pursued her college studies in St. Paul's College,
now Divine Word University of Tacloban, where she earned her degree in Education. Thereafter, she
taught in the Leyte Chinese High School, still in Tacloban City. In 1952 she went to Manila to work
with her cousin, the late Speaker Daniel Z. Romualdez in his office in the House of Representatives.
In 1954, she married ex-president Ferdinand Marcos when he was still a congressman of Ilocos
Norte. She lived with him in Batac, Ilocos Norte and registered there as a voter. When her husband
was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal
where she registered as a voter. In 1965 when her husband was elected President of the Republic of
the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel,
Manila.

During the Marcos presidency, respondent served as a Member of the Batasang Pambansa,
Minister of Human Settlements and Governor of Metro Manila. She claimed that in February 1986,
 she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came
home to Manila. In 1992 respondent ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San
Juan, Metro Manila. On August 24, 1994, respondent filed a letter with the election officer of San
Juan, Metro Manila, requesting for cancellation of her registration in the Permanent List of Voters in
Precinct No. 157 of San Juan, Metro Manila, in order that she may be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994, respondent filed her Sworn
Application for Cancellation of Voter's Previous Registration (Annex 2-C, Answer) stating that she is
a duly registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she intends to register at
Brgy. Olot, Tolosa, Leyte.

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte.
She filed with the Board of Election Inspectors CE Form No. 1, Voter Registration Record No. 94-
3349772, wherein she alleged that she has resided in the municipality of Tolosa for a period of 6
months (Annex A, Petition).

On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a
Certificate of Candidacy for the position of Representative of the First District of Leyte wherein she
also alleged that she has been a resident in the constituency where she seeks to be elected for a
period of 7 months. The pertinent entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social

Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte

Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte

9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE

ELECTED IMMEDIATELY PRECEDING ELECTION: ________
Years Seven Months

10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO,

A FOREIGN COUNTRY.

THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the Republic
of the Philippines and will maintain true faith and allegiance thereto; That I will obey the laws, legal
orders and decrees promulgated by the duly-constituted authorities; That the obligation imposed by
my oath is assumed voluntarily, without mental reservation or purpose of evasion; and That the facts
stated herein are true to the best of my knowledge.

(Sgd.) Imelda Romualdez-Marcos

(Signature of Candidate) 2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or seed of
her disqualification. It is contained in her answer under oath of "seven months" to the query of "residence in the
constituency wherein I seek to be elected immediately preceding the election."

It follows from all the above that the Comelec committed no grave abuse of discretion in holding that petitioner is
disqualified from the position of representative for the 1st congressional district of Leyte in the elections of 8 May
1995, for failure to meet the "not less than one-year residence in the constituency (1st district, Leyte) immediately
preceding the day of election (8 May 1995)."

Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next important
issue to resolve is whether or not the Comelec can order the Board of Canvassers to determine and proclaim the
winner out of the remaining qualified candidates for representative in said district.

I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564, August 1,
1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil.
238 that:

. . . . Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the election.
(20 Corpus Juris 2nd, S 243, p. 676)

The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
 candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote
the winner into office or maintain him there. However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere
belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or
meaningless.

Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes) (84
O.G. 905, 22 February 1988) it is provided that:

. . . — Any candidate who has been declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the trial and hearing
of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may, during
the pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong.

There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the provision
quoted above. As the law now stands, the legislative policy does not limit its concern with the effect of a final
judgement of disqualification only before the election, but even during or after the election. The law is clear that in all
situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The law has also validated the
jurisdiction of the Court or Commission on Election to continue hearing the petition for disqualification in case a
candidate is voted for and receives the highest number of votes, if for any reason, he is not declared by final
judgment before an election to be disqualified.

Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his guilt
is strong) is also explicit under the law. What happens then when after the elections are over, one is declared
disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the
highest number of votes.

It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a
"winning candidate is disqualified," but that the law considers him as the candidate who had obtained the highest
number of votes as a result of the votes cast for the disqualified candidate not being counted or considered.

As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-
examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications
prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through
the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution.

ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to
proclaim the candidate receiving the highest number of votes, from among the qualified candidates, as the duly
elected representative of the 1st district of Leyte.

Hermosisima, Jr. J., dissent.

REGALADO, J., dissenting:

While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same
conclusion drawn therefrom Hence, this dissent which assuredly is not formulated "on the basis of the personality of
a petitioner in a case."

I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this case, and
which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she
being a legitimate daughter of parents who appear to have taken up permanent residence therein.
She also went to school there and, for a time, taught in one of the schools in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte,
by operation of law she acquired a new domicile in that place in 1954.

3. In the successive years and during the events that happened thereafter, her husband having been
elected as a Senator and then as President, she lived with him and their family in San Juan, Rizal
and then in Malacanang Palace in San Miguel, Manila.

4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San
Juan, Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right of suffrage.
 5. It does not appear that her husband, even after he had assumed those lofty positions
successively, ever abandoned his domicile of origin in Batac, Ilocos Norte where he maintained his
residence and invariably voted in all elections.

6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family
in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and resided in
different places which she claimed to have been merely temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of
candidacy she indicated that she was then a registered voter and resident of San Juan, Metro
Manila.

8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent List
of Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up with her Sworn
Application for Cancellation of Voter's Previous Registration wherein she stated that she was a
registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she
intended to register in Brgy. Olot, Tolosa, Leyte.

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte,
for which purpose she filed with the therein Board of Election Inspectors a voter's registration record
form alleging that she had resided in that municipality for six months.

10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative
of the First District of Leyte wherein she alleged that she had been a resident for "Seven Months" of
the constituency where she sought to be elected.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her
answer in the original certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY
WHERE I SEEK, TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or
replaced with a new entry reading "SINCE CHILDHOOD."

The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the residency
requirement of one year as mandated by no less than Section 6, Article VI of the 1987 Constitution.

I do not intend to impose upon the time of my colleagues with a dissertation on the difference between residence
and domicile. We have had enough of that and I understand that for purposes of political law and, for that matter of
international law, residence is understood to be synonymous with domicile. That is so understood in our
jurisprudence and in American Law, in contradistinction to the concept of residence for purposes of civil, commercial
and procedural laws whenever an issue thereon is relevant or controlling.

Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable from
her domicile, I am addressing the issue from the standpoint of the concept of the latter term, specifically its
permutations into the domicile of origin, domicile of choice and domicile by operation of law, as understood in
American law from which for this case we have taken our jurisprudential bearings.

My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of origin,"
constitutes the domicile of an infant until abandoned, or until the acquisition of a new domicile in a different place. In
1

the instant case, we may grant that petitioner's domicile of origin, at least as of 1938, was what is now Tacloban
2

City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by choice,
and domicile by operation of law. The first is the common case of the place of birth or domicilium originis, the
second is that which is voluntarily acquired by a party or domicilium propio motu; the last which is consequential, as
that of a wife arising from marriage, is sometimes called domicilium necesarium. There is no debate that the
3

domicile of origin can be lost or replaced by a domicile of choice or a domicile by operation of law subsequently
acquired by the party.

When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or
American but of our own enactment, she acquired her husband's domicile of origin in Batac, Ilocos Norte and
4

correspondingly lost her own domicile of origin in Tacloban City.

Her subsequent changes of residence — to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu,
Hawaii, and back to now San Juan, Metro Manila — do not appear to have resulted in her thereby acquiring new
domiciles of choice. In fact, it appears that her having resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the assumption of new official positions or the loss of them.
Her residence in Honolulu and, of course, those after her return to the Philippines were, as she claimed, against her
will or only for transient purposes which could not have invested them with the status of domiciles of choice. 5
After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency in
Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other domicile of
choice which could have resulted in the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we
note the majority's own submission that, to successfully effect a change of domicile, one must demonstrate (a) an
6

actual removal or an actual change of domicile, (b) a bona fide intention of abandoning the former place of
residence and establishing a new one, and (c) acts which correspond with the purpose.

We consequently have to also note that these requirements for the acquisition of a domicile of choice apply whether
what is sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile by operation of
law (domicilium necesarium). Since petitioner had lost her domicilium originis which had been replaced by
her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if at all, can be the
object of legal change under the contingencies of the case at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E.
Maambong in SPA 95-009 of the Commission on Elections, and advances this novel proposition.
7

It may be said that petitioner lost her domicile of origin by operation of law as a result of her marriage
to the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law (domicilium
necesarium), her legal domicile at the time of her marriage became Batac, Ilocos Norte although
there were no indications of an intention on her part to abandon her domicile of origin. Because of
her husband's subsequent death and through the operation of the provisions of the New Family
Code already in force at the time, however, her legal domicile automatically reverted to her domicile
of origin. . . . (Emphasis supplied).

Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in Batac,
Ilocos Norte, the majority insists on making a qualification that she did not intend to abandon her domicile of origin. I
find this bewildering since, in this situation, it is the law that declares where petitioner's domicile is at any given time,
and not her self-serving or putative intent to hold on to her former domicile. Otherwise, contrary to their own
admission that one cannot have more than one domicile at a time, the majority would be suggesting that petitioner
8

retained Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent of what is fancied
as a reserved, dormant, potential, or residual domicile.

Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law.
However, we are here being titillated with the possibility of an automatic reversion to or reacquisition of a domicile of
origin after the termination of the cause for its loss by operation of law. The majority agrees that since petitioner lost
her domicile of origin by her marriage, the termination of the marriage also terminates that effect thereof. I am
impressed by the ingeniousness of this theory which proves that, indeed, necessity is the mother of inventions.
Regretfully, I find some difficulty in accepting either the logic or the validity of this argument.

If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons the
former in favor of the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover his original
domicile unless, by subsequent acts legally indicative thereof, he evinces his intent and desire to establish the same
as his new domicile, which is precisely what petitioner belatedly and, evidently just for purposes of her candidacy,
unsuccessfully tried to do.

One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin, not
only because there is no legal authority therefor but because it would be absurd Pursued to its logical consequence,
that theory of ipso jure reversion would rule out the fact that said party could already very well have obtained
another domicile, either of choice or by operation of law, other than his domicile of origin. Significantly and obviously
for this reason, the Family Code, which the majority inexplicably invokes, advisedly does not regulate this
contingency since it would impinge on one's freedom of choice.

Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume that
she entered into the marital state against her will) but, on top of that, such abandonment was further affirmed
through her acquisition of a new domicile by operation of law. In fact, this is even a case of
both voluntary and legal abandonment of a domicile of origin. With much more reason, therefore, should we reject
the proposition that with the termination of her marriage in 1989, petitioner had supposedly per se and ipso
facto reacquired her domicile of origin which she lost in 1954. Otherwise, this would be tantamount to saying that
during the period of marital coverture, she was simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.

Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to elect
her own domicile, she nevertheless retains the last domicile of her deceased husband until she makes an actual
9

change. In the absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal
10

residence follows that of her husband and will continue after his death. 11

I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the
Family Code. All that is of any relevance therein is that under this new code, the right and power to fix the family
domicile is now shared by the spouses. I cannot perceive how that joint right, which in the first place was never
exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long
prior thereto. It is true that a wife now has the coordinate power to determine the conjugal or family domicile, but
that has no bearing on this case. With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no longer called for or
material in the present factual setting of this controversy. Instead, what is of concern in petitioner's case was the
matter of her having acquired or not her own domicile of choice.

I agree with the majority's discourse on the virtues of the growing and expanded participation of women in the affairs
of the nation, with equal rights and recognition by Constitution and statutory conferment. However, I have searched
in vain for a specific law or judicial pronouncement which either expressly or by necessary implication supports the
majority's desired theory of automatic reacquisition of or reversion to the domicilium originis of petitioner. Definitely,
as between the settled and desirable legal norms that should govern this issue, there is a world of difference; and,
unquestionably, this should be resolved by legislative articulation but not by the eloquence of the well-turned
phrase.

In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically
reacquired any domicile therein, she cannot legally claim that her residency in the political constituency of which it is
a part continued since her birth up to the present. Respondent commission was, therefore, correct in rejecting her
pretension to that effect in her amended/corrected certificate of candidacy, and in holding her to her admission in
the original certificate that she had actually resided in that constituency for only seven months prior to the election.
These considerations render it unnecessary to further pass upon the procedural issues raised by petitioner.

ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.

DAVIDE, JR., J., dissenting:

I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more particularly
on the issue of the petitioner's qualification.

Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC may be
brought to this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs.
COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of jurisdiction or
with grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly,
jurisdiction over the private respondent's petition, the only issue left is whether it acted with grave abuse of
discretion in disqualifying the petitioner.

My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division
and the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less grave abuse
thereof. The resolution of the Second Division dispassionately and objectively discussed in minute details the facts
which established beyond cavil that herein petitioner was disqualified as a candidate on the ground of lack of
residence in the First Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood
facts or circumstances of substance pertinent to the issue of her residence.

The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner has
abandoned Tolosa as her domicile of origin, which is allegedly within the First Congressional District of Leyte.

I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by documentary
evidence, overwhelming proof of the loss or abandonment of her domicile of origin, which is Tacloban City and not
Tolosa, Leyte. Assuming that she decided to live again in her domicile of origin, that became her second domicile of
choice, where her stay, unfortunately, was for only seven months before the day of the election. She was then
disqualified to be a candidate for the position of Representative of the First Congressional District of Leyte. A
holding to the contrary would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte.
Nevertheless, she lost it by operation of law sometime in May 1954 upon her marriage to the then Congressman
(later, President) Ferdinand E. Marcos. A domicile by operation of law is that domicile which the law attributes to a
person, independently of his own intention or actual residence, as results from legal domestic relations as that of the
wife arising from marriage (28 C.J.S. Domicile § 7, 11). Under the governing law then, Article 110 of the Civil Code,
her new domicile or her domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said
Article reads as follows:

Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from
living with the husband if he should live abroad unless in the service of the Republic.

Commenting thereon, civilist Arturo M. Tolentino states:

 Although the duty of the spouses to live together is mutual, the husband has a predominant right
because he is empowered by law to fix the family residence. This right even predominates over
some rights recognized by law in the wife. For instance, under article 117 the wife may engage in
business or practice a profession or occupation. But because of the power of the husband to fix
the family domicile he may fix it at such a place as would make it impossible for the wife to continue
in business or in her profession. For justifiable reasons, however, the wife may be exempted from
living in the residence chosen by the husband. The husband cannot validly allege desertion by the
wife who refuses to follow him to a new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice of a different home is not made in
good faith. (Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed.,
339).

Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires that of
her husband, no matter where the wife actually lives or what she believes or intends. Her domicile is fixed in the
sense that it is declared to be the same as his, and subject to certain limitations, he can change her domicile by
changing his own (25 Am Jur 2d Domicile § 48, 37).

It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is no
longer the sole prerogative of the husband, but is now a joint decision of the spouses, and in case of disagreement
the court shall decide. The said article uses the term "family domicile," and not family residence, as "the spouses
may have multiple residences, and the wife may elect to remain in one of such residences, which may destroy the
duty of the spouses to live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the
Family Code of the Philippines, [1988], 102).

The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the
majority opinion adopts to overcome the legal effect of the petitioner's marriage on her domicile, is unsupported by
law and by jurisprudence. The settled doctrine is that after the husband's death the wife has a right to elect her own
domicile, but she retains the last domicile of her husband until she makes an actual change (28 C.J.S. Domicile §
12, 27). Or, on the death of the husband, the power of the wife to acquire her own domicile is revived, but until she
exercises the power her domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile § 62,
45). Note that what is revived is not her domicile of origin but her power to acquire her own domicile.

Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of his
death — which was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel, Manila,
were their residences for convenience to enable her husband to effectively perform his official duties. Their
residence in San Juan was a conjugal home, and it was there to which she returned in 1991 when she was already
a widow. In her sworn certificate of candidacy for the Office of the President in the synchronized elections of May
1992, she indicated therein that she was a resident of San Juan, Metro Manila. She also voted in the said elections
in that place.

On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to acquire her
own domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San Juan, Metro
Manila, to cancel her registration in the permanent list of voters in Precinct 157 thereat and praying that she be "re-
registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy
of Exhibit "B," attached as Annex "2" of private respondent Montejo's Comment). Notably, she contradicted this
sworn statement regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992 (photocopy of
Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn to on 28 January 1995 (photocopy of
Exhibit "E," attached as Annex "5," Id.), and her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of
Exhibit "A," attached as Annex "1," Id.), she solemnly declared that she was born in Manila.

The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the affidavit
attached to her Answer to the petition for disqualification (Annex "I" of Petition), she declared under oath that her
"domicile or residence is Tacloban City." If she did intend to return to such domicile or residence of origin why did
she inform the Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's
Registration Record and in her certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this
uncertainty is not important insofar as residence in the congressional district is concerned, it nevertheless proves
that forty-one years had already lapsed since she had lost or abandoned her domicile of origin by virtue of marriage
and that such length of time diminished her power of recollection or blurred her memory.

I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the
subsequent cases which established the principle that absence from original residence or domicile of origin to
pursue studies, practice one's profession, or engage in business in other states does not constitute loss of such
residence or domicile. So is the reliance on Section 117 of the Omnibus Election Code which provides that transfer
of residence to any other place by reason of one's "occupation; profession; employment in private and public
service; educational activities; work in military or naval reservations; service in the army, navy or air force, the
constabulary or national police force; or confinement or detention in government institutions in accordance with law"
is not deemed as loss of original residence. Those cases and legal provision do not include marriage of a woman.
The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the intention of this Court or of the
legislature to consider the marriage of a woman as a circumstance which would not operate as an abandonment of
domicile (of origin or of choice), then such cases and legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A" of her
Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban
City," and that she "never intended to abandon this domicile or residence of origin to which [she] always intended to
return whenever absent." Such a claim of intention cannot prevail over the effect of Article 110 of the Civil Code.
Besides, the facts and circumstances or the vicissitudes of the petitioner's life after her marriage in 1954
conclusively establish that she had indeed abandoned her domicile of origin and had acquired a new one animo et
facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).

Neither should this Court place complete trust on the petitioner's claim that she "merely committed an honest
mistake" in writing down the word "seven" in the space provided for the residency qualification requirement in the
certificate of candidacy. Such a claim is self-serving and, in the light of the foregoing disquisitions, would be all
sound and fury signifying nothing. To me, she did not commit any mistake, honest or otherwise; what she stated
was the truth.

The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of an issue
has the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp.
vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the
petitioner could not deny the legal consequence thereof on the change of her domicile to that of her husband. The
majority opinion rules or at least concludes that "[b]y operation of law (domicilium necesarium), her legal domicile at
the time of her marriage automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110 of
the Civil Code. Since she is presumed to retain her deceased husband's domicile until she exercises her revived
power to acquire her own domicile, the burden is upon her to prove that she has exercised her right to acquire her
own domicile. She miserably failed to discharge that burden.

I vote to deny the petition.

- Philsec Investment et al vs. Court of Appeals, G.R. No. 103493, June 19, 1997

G.R. No. 103493 June 19, 1997

PHILSEC INVESTMENT CORPORATION, BPI-INTERNATIONAL FINANCE LIMITED, and ATHONA HOLDINGS,

N.V., petitioners,
vs.
THE HONORABLE COURT OF APPEALS, 1488, INC., DRAGO DAIC, VENTURA O. DUCAT, PRECIOSO R.
PERLAS, and WILLIAM H. CRAIG, respondents.

MENDOZA, J.:

This case presents for determination the conclusiveness of a foreign judgment upon the rights of the parties under
the same cause of action asserted in a case in our local court. Petitioners brought this case in the Regional Trial
Court of Makati, Branch 56, which, in view of the pendency at the time of the foreign action, dismissed Civil Case
No. 16563 on the ground of litis pendentia, in addition to forum non conveniens. On appeal, the Court of Appeals
affirmed. Hence this petition for review on certiorari.

The facts are as follows:

On January 15, 1983, private respondent Ventura O. Ducat obtained separate loans from petitioners Ayala
International Finance Limited (hereafter called AYALA) and Philsec Investment Corporation (hereafter called
1

PHILSEC) in the sum of US$2,500,000.00, secured by shares of stock owned by Ducat with a market value of
P14,088,995.00. In order to facilitate the payment of the loans, private respondent 1488, Inc., through its president,
private respondent Drago Daic, assumed Ducat's obligation under an Agreement, dated January 27, 1983, whereby
1488, Inc. executed a Warranty Deed with Vendor's Lien by which it sold to petitioner Athona Holdings, N.V.
(hereafter called ATHONA) a parcel of land in Harris County, Texas, U.S.A., for US$2,807,209.02, while PHILSEC
and AYALA extended a loan to ATHONA in the amount of US$2,500,000.00 as initial payment of the purchase
price. The balance of US$307,209.02 was to be paid by means of a promissory note executed by ATHONA in favor
of 1488, Inc. Subsequently, upon their receipt of the US$2,500,000.00 from 1488, Inc., PHILSEC and AYALA
released Ducat from his indebtedness and delivered to 1488, Inc. all the shares of stock in their possession
belonging to Ducat.

As ATHONA failed to pay the interest on the balance of US$307,209.02, the entire amount covered by the note
became due and demandable. Accordingly, on October 17, 1985, private respondent 1488, Inc. sued petitioners
PHILSEC, AYALA, and ATHONA in the United States for payment of the balance of US$307,209.02 and for
damages for breach of contract and for fraud allegedly perpetrated by petitioners in misrepresenting the
marketability of the shares of stock delivered to 1488, Inc. under the Agreement. Originally instituted in the United
States District Court of Texas, 165th Judicial District, where it was docketed as Case No. 85-57746, the venue of
the action was later transferred to the United States District Court for the Southern District of Texas, where 1488,
Inc. filed an amended complaint, reiterating its allegations in the original complaint. ATHONA filed an answer with
counterclaim, impleading private respondents herein as counterdefendants, for allegedly conspiring in selling the
property at a price over its market value. Private respondent Perlas, who had allegedly appraised the property, was
later dropped as counterdefendant. ATHONA sought the recovery of damages and excess payment allegedly made
to 1488, Inc. and, in the alternative, the rescission of sale of the property. For their part, PHILSEC and AYALA filed
a motion to dismiss on the ground of lack of jurisdiction over their person, but, as their motion was denied, they later
filed a joint answer with counterclaim against private respondents and Edgardo V. Guevarra, PHILSEC's own former
president, for the rescission of the sale on the ground that the property had been overvalued. On March 13, 1990,
the United States District Court for the Southern District of Texas dismissed the counterclaim against Edgardo V.
Guevarra on the ground that it was "frivolous and [was] brought against him simply to humiliate and embarrass him."
For this reason, the U.S. court imposed so-called Rule 11 sanctions on PHILSEC and AYALA and ordered them to
pay damages to Guevarra.

On April 10, 1987, while Civil Case No. H-86-440 was pending in the United States, petitioners filed a complaint "For
Sum of Money with Damages and Writ of Preliminary Attachment" against private respondents in the Regional Trial
Court of Makati, where it was docketed as Civil Case No. 16563. The complaint reiterated the allegation of
petitioners in their respective counterclaims in Civil Action No. H-86-440 of the United States District Court of
Southern Texas that private respondents committed fraud by selling the property at a price 400 percent more than
its true value of US$800,000.00. Petitioners claimed that, as a result of private respondents' fraudulent
misrepresentations, ATHONA, PHILSEC, and AYALA were induced to enter into the Agreement and to purchase
the Houston property. Petitioners prayed that private respondents be ordered to return to ATHONA the excess
payment of US$1,700,000.00 and to pay damages. On April 20, 1987, the trial court issued a writ of preliminary
attachment against the real and personal properties of private respondents. 2

Private respondent Ducat moved to dismiss Civil Case No. 16563 on the grounds of (1) litis pendentia, vis-a-vis Civil
Action No. H-86-440 filed by 1488, Inc. and Daic in the U.S., (2) forum non conveniens, and (3) failure of petitioners
PHILSEC and BPI-IFL to state a cause of action. Ducat contended that the alleged overpricing of the property
prejudiced only petitioner ATHONA, as buyer, but not PHILSEC and BPI-IFL which were not parties to the sale and
whose only participation was to extend financial accommodation to ATHONA under a separate loan agreement. On
the other hand, private respondents 1488, Inc. and its president Daic filed a joint "Special Appearance and Qualified
Motion to Dismiss," contending that the action being in personam, extraterritorial service of summons by publication
was ineffectual and did not vest the court with jurisdiction over 1488, Inc., which is a non-resident foreign
corporation, and Daic, who is a non-resident alien.

On January 26, 1988, the trial court granted Ducat's motion to dismiss, stating that "the evidentiary requirements of
the controversy may be more suitably tried before the forum of the litis pendentia in the U.S., under the principle in
private international law of forum non conveniens," even as it noted that Ducat was not a party in the U.S. case.

A separate hearing was held with regard to 1488, Inc. and Daic's motion to dismiss. On March 9, 1988, the trial
court granted the motion to dismiss filed by 1488, Inc. and Daic on the ground of litis pendentia considering that
3

the "main factual element" of the cause of action in this case which is the validity of the sale of real
property in the United States between defendant 1488 and plaintiff ATHONA is the subject matter of
the pending case in the United States District Court which, under the doctrine of forum non
conveniens, is the better (if not exclusive) forum to litigate matters needed to determine the
assessment and/or fluctuations of the fair market value of real estate situated in Houston, Texas,
U.S.A. from the date of the transaction in 1983 up to the present and verily, . . . (emphasis by trial
court)

The trial court also held itself without jurisdiction over 1488, Inc. and Daic because they were non-residents
and the action was not an action in rem or quasi in rem, so that extraterritorial service of summons was
ineffective. The trial court subsequently lifted the writ of attachment it had earlier issued against the shares
of stocks of 1488, Inc. and Daic.

Petitioners appealed to the Court of Appeals, arguing that the trial court erred in applying the principle of litis
pendentia and forum non conveniens and in ruling that it had no jurisdiction over the defendants, despite the
previous attachment of shares of stocks belonging to 1488, Inc. and Daic.

On January 6, 1992, the Court of Appeals affirmed the dismissal of Civil Case No. 16563 against Ducat, 1488, Inc.,
4

and Daic on the ground of litis pendentia, thus:

The plaintiffs in the U.S. court are 1488 Inc. and/or Drago Daic, while the defendants are Philsec, the
Ayala International Finance Ltd. (BPI-IFL's former name) and the Athona Holdings, NV. The case at
bar involves the same parties. The transaction sued upon by the parties, in both cases is the
Warranty Deed executed by and between Athona Holdings and 1488 Inc. In the U.S. case, breach of
contract and the promissory note are sued upon by 1488 Inc., which likewise alleges fraud employed
by herein appellants, on the marketability of Ducat's securities given in exchange for the Texas
property. The recovery of a sum of money and damages, for fraud purportedly committed by
appellees, in overpricing the Texas land, constitute the action before the Philippine court, which
likewise stems from the same Warranty Deed.
 The Court of Appeals also held that Civil Case No. 16563 was an action in personam for the recovery of a
sum of money for alleged tortious acts, so that service of summons by publication did not vest the trial court
with jurisdiction over 1488, Inc. and Drago Daic. The dismissal of Civil Case No. 16563 on the ground
of forum non conveniens was likewise affirmed by the Court of Appeals on the ground that the case can be
better tried and decided by the U.S. court:

The U.S. case and the case at bar arose from only one main transaction, and involve foreign
elements, to wit: 1) the property subject matter of the sale is situated in Texas, U.S.A.; 2) the seller,
1488 Inc. is a non-resident foreign corporation; 3) although the buyer, Athona Holdings, a foreign
corporation which does not claim to be doing business in the Philippines, is wholly owned by Philsec,
a domestic corporation, Athona Holdings is also owned by BPI-IFL, also a foreign corporation; 4) the
Warranty Deed was executed in Texas, U.S.A.

In their present appeal, petitioners contend that:

1. THE DOCTRINE OF PENDENCY OF ANOTHER ACTION BETWEEN THE SAME PARTIES FOR
THE SAME CAUSE (LITIS PENDENTIA) RELIED UPON BY THE COURT OF APPEALS IN
AFFIRMING THE TRIAL COURT'S DISMISSAL OF THE CIVIL ACTION IS NOT APPLICABLE.

2. THE PRINCIPLE OF FORUM NON CONVENIENS ALSO RELIED UPON BY THE COURT OF
APPEALS IN AFFIRMING THE DISMISSAL BY THE TRIAL COURT OF THE CIVIL ACTION IS
LIKEWISE NOT APPLICABLE.

3. AS A COROLLARY TO THE FIRST TWO GROUNDS, THE COURT OF APPEALS ERRED IN

NOT HOLDING THAT PHILIPPINE PUBLIC POLICY REQUIRED THE ASSUMPTION, NOT THE
RELINQUISHMENT, BY THE TRIAL COURT OF ITS RIGHTFUL JURISDICTION IN THE CIVIL
ACTION FOR THERE IS EVERY REASON TO PROTECT AND VINDICATE PETITIONERS'
RIGHTS FOR TORTIOUS OR WRONGFUL ACTS OR CONDUCT PRIVATE RESPONDENTS
(WHO ARE MOSTLY NON-RESIDENT ALIENS) INFLICTED UPON THEM HERE IN THE
PHILIPPINES.

We will deal with these contentions in the order in which they are made.

First. It is important to note in connection with the first point that while the present case was pending in the Court of
Appeals, the United States District Court for the Southern District of Texas rendered judgment in the case before it.
5

The judgment, which was in favor of private respondents, was affirmed on appeal by the Circuit Court of
Appeals. Thus, the principal issue to be resolved in this case is whether Civil Case No. 16536 is barred by the
6

judgment of the U.S. court.

Private respondents contend that for a foreign judgment to be pleaded as res judicata, a judgment admitting the
foreign decision is not necessary. On the other hand, petitioners argue that the foreign judgment cannot be given
the effect of res judicata without giving them an opportunity to impeach it on grounds stated in Rule 39, §50 of the
Rules of Court, to wit: "want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact."

Petitioners' contention is meritorious. While this Court has given the effect of res judicata to foreign judgments in
several cases, it was after the parties opposed to the judgment had been given ample opportunity to repel them on
7

grounds allowed under the law. It is not necessary for this purpose to initiate a separate action or proceeding for
8

enforcement of the foreign judgment. What is essential is that there is opportunity to challenge the foreign judgment,
in order for the court to properly determine its efficacy. This is because in this jurisdiction, with respect to actions in
personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of
the justness of the claim of a party and, as such, is subject to proof to the contrary. Rule 39, §50 provides:
9

Sec. 50. Effect of foreign judgments. — The effect of a judgment of a tribunal of a foreign country,
having jurisdiction to pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;

(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title; but the judgment may be
repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.

Thus, in the case of General Corporation of the Philippines v. Union Insurance Society of Canton, Ltd., which 10

private respondents invoke for claiming conclusive effect for the foreign judgment in their favor, the foreign judgment
was considered res judicata because this Court found "from the evidence as well as from appellant's own
pleadings" that the foreign court did not make a "clear mistake of law or fact" or that its judgment was void for want
11

of jurisdiction or because of fraud or collusion by the defendants. Trial had been previously held in the lower court
and only afterward was a decision rendered, declaring the judgment of the Supreme Court of the State of
Washington to have the effect of res judicata in the case before the lower court. In the same vein, in Philippines
International Shipping Corp. v. Court of Appeals, this Court held that the foreign judgment was valid and
12

enforceable in the Philippines there being no showing that it was vitiated by want of notice to the party, collusion,
fraud or clear mistake of law or fact. The prima facie presumption under the Rule had not been rebutted.

In the case at bar, it cannot be said that petitioners were given the opportunity to challenge the judgment of the U.S.
court as basis for declaring it res judicata or conclusive of the rights of private respondents. The proceedings in the
trial court were summary. Neither the trial court nor the appellate court was even furnished copies of the pleadings
in the U.S. court or apprised of the evidence presented thereat, to assure a proper determination of whether the
issues then being litigated in the U.S. court were exactly the issues raised in this case such that the judgment that
might be rendered would constitute res judicata. As the trial court stated in its disputed order dated March 9, 1988.

On the plaintiff's claim in its Opposition that the causes of action of this case and the pending case in
the United States are not identical, precisely the Order of January 26, 1988 never found that the
causes of action of this case and the case pending before the USA Court, were identical. (emphasis
added)

It was error therefore for the Court of Appeals to summarily rule that petitioners' action is barred by the
principle of res judicata. Petitioners in fact questioned the jurisdiction of the U.S. court over their persons,
but their claim was brushed aside by both the trial court and the Court of Appeals. 13

Moreover, the Court notes that on April 22, 1992, 1488, Inc. and Daic filed a petition for the enforcement of
judgment in the Regional Trial Court of Makati, where it was docketed as Civil Case No. 92-1070 and assigned to
Branch 134, although the proceedings were suspended because of the pendency of this case. To sustain the
appellate court's ruling that the foreign judgment constitutes res judicata and is a bar to the claim of petitioners
would effectively preclude petitioners from repelling the judgment in the case for enforcement. An absurdity could
then arise: a foreign judgment is not subject to challenge by the plaintiff against whom it is invoked, if it is pleaded to
resist a claim as in this case, but it may be opposed by the defendant if the foreign judgment is sought to be
enforced against him in a separate proceeding. This is plainly untenable. It has been held therefore that:

[A] foreign judgment may not be enforced if it is not recognized in the jurisdiction where affirmative
relief is being sought. Hence, in the interest of justice, the complaint should be considered as a
petition for the recognition of the Hongkong judgment under Section 50 (b), Rule 39 of the Rules of
Court in order that the defendant, private respondent herein, may present evidence of lack of
jurisdiction, notice, collusion, fraud or clear mistake of fact and law, if applicable.
14

Accordingly, to insure the orderly administration of justice, this case and Civil Case No. 92-1070 should be
consolidated. After all, the two have been filed in the Regional Trial Court of Makati, albeit in different salas, this
15

case being assigned to Branch 56 (Judge Fernando V. Gorospe), while Civil Case No. 92-1070 is pending in Branch
134 of Judge Ignacio Capulong. In such proceedings, petitioners should have the burden of impeaching the foreign
judgment and only in the event they succeed in doing so may they proceed with their action against private
respondents.

Second. Nor is the trial court's refusal to take cognizance of the case justifiable under the principle of forum non
conveniens. First, a motion to dismiss is limited to the grounds under Rule 16, §1, which does not include forum non
conveniens. The propriety of dismissing a case based on this principle requires a factual determination, hence, it is
16

more properly considered a matter of defense. Second, while it is within the discretion of the trial court to abstain
from assuming jurisdiction on this ground, it should do so only after "vital facts are established, to determine whether
special circumstances" require the court's desistance. 17

In this case, the trial court abstained from taking jurisdiction solely on the basis of the pleadings filed by private
respondents in connection with the motion to dismiss. It failed to consider that one of the plaintiffs (PHILSEC) is a
domestic corporation and one of the defendants (Ventura Ducat) is a Filipino, and that it was the extinguishment of
the latter's debt which was the object of the transaction under litigation. The trial court arbitrarily dismissed the case
even after finding that Ducat was not a party in the U.S. case.

Third. It was error we think for the Court of Appeals and the trial court to hold that jurisdiction over 1488, Inc. and
Daic could not be obtained because this is an action in personam and summons were served by extraterritorial
service. Rule 14, §17 on extraterritorial service provides that service of summons on a non-resident defendant may
be effected out of the Philippines by leave of Court where, among others, "the property of the defendant has been
attached within the Philippines." It is not disputed that the properties, real and personal, of the private respondents
18

had been attached prior to service of summons under the Order of the trial court dated April 20, 1987. 19

Fourth. As for the temporary restraining order issued by the Court on June 29, 1994, to suspend the proceedings in
Civil Case No. 92-1445 filed by Edgardo V. Guevarra to enforce so-called Rule 11 sanctions imposed on the
petitioners by the U.S. court, the Court finds that the judgment sought to be enforced is severable from the main
judgment under consideration in Civil Case No. 16563. The separability of Guevara's claim is not only admitted by
petitioners, it appears from the pleadings that petitioners only belatedly impleaded Guevarra as defendant in Civil
20

Case No. 16563. Hence, the TRO should be lifted and Civil Case No. 92-1445 allowed to proceed.
21
WHEREFORE, the decision of the Court of Appeals is REVERSED and Civil Case No. 16563 is REMANDED to the
Regional Trial Court of Makati for consolidation with Civil Case No. 92-1070 and for further proceedings in
accordance with this decision. The temporary restraining order issued on June 29, 1994 is hereby LIFTED.

SO ORDERED.

Regalado, Romero, Puno and Torres, Jr., JJ., concur.

- Keeton vs. Hustler Magazine, Inc. et al, 465 U.S. 770, Decided March 20, 1984
Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984)
Keeton v. Hustler Magazine, Inc.
No. 82-485
Argued November 8, 1983
Decided March 20, 1984
465 U.S. 770
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
Syllabus
Petitioner, a resident of New York, brought a libel suit against respondent magazine
publisher (hereafter respondent), an Ohio corporation, in Federal District Court in New
Hampshire, alleging jurisdiction by reason of diversity of citizenship. Petitioner's only
connection with New Hampshire is the circulation there of a magazine that she assists in
producing. Respondent's contacts with New Hampshire consist of monthly sales of some
10,000 to 15,000 copies of its nationally published magazine. The District Court
dismissed the suit on the ground that the Due Process Clause of the Fourteenth
Amendment forbade application of New Hampshire's long-arm statute in order to acquire
personal jurisdiction over respondent. The Court of Appeals affirmed, holding that
petitioner's lack of contact with New Hampshire rendered that State's interest in
redressing the tort of libel to petitioner too attenuated for an assertion of personal
jurisdiction over respondent, and that, in view of the "single publication rule," which
would require an award of damages caused in all States, as well as New Hampshire's
unusually long (6-year) limitation period for libel actions, it would be "unfair" to assert
jurisdiction over respondent.
Held: Respondent's regular circulation of magazines in the forum State is sufficient to
support an assertion of jurisdiction in a libel action based on the contents of the
magazine. Pp. 465 U. S. 773-781.
(a) New Hampshire jurisdiction over a complaint based on this circulation of magazines
satisfies the Due Process Clause's requirement that a State's assertion of personal
jurisdiction over a nonresident defendant be predicated on "minimum contacts" between
the defendant and the State. Pp. 465 U. S. 774-775.
(b) In judging minimum contacts, a court properly focuses on "the relationship among
the defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U. S. 186, 433 U. S.
204. Thus, it is relevant to the jurisdictional inquiry here that petitioner is seeking to
recover damages suffered in all States in one suit. The contacts between respondent and
the forum must be judged in light of that claim, rather than a claim only for damages
sustained in New Hampshire. P. 465 U. S. 775.
(c) The combination of New Hampshire's interest in redressing injuries that occur within
the State and its interest in cooperating with other States in applying the "single
publication rule" demonstrates the propriety
Page 465 U. S. 771
of requiring respondent to answer a multistate libel action in New Hampshire. Pp. 465 U.
S. 775-778.
(d) Any potential unfairness in applying New Hampshire's statute of limitations to all
aspects of this nationwide suit has nothing to do with jurisdiction to adjudicate the claim.
And the chance duration of statutes of limitations of nonforum States has nothing to do
with the contacts among respondent, New Hampshire, and the suit. Pp. 465 U. S. 778-
779.
(e) The fact that petitioner has very limited contacts with New Hampshire does not
defeat jurisdiction, since a plaintiff is not required to have "minimum contacts" with the
forum State before that State is permitted to assert personal jurisdiction over a
nonresident defendant. A plaintiff's residence in the forum State is not a separate
jurisdictional requirement, and lack of residence will not defeat jurisdiction established
on the basis of the defendant's contacts. The victim of a libel, like the victim of any other
tort, may choose to bring suit in any forum with which the defendant has
"certain minimum contacts . . . such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice.'"
International Shoe Co. v. Washington, 326 U. S. 310, 326 U. S. 316. Pp. 465 U. S. 779-
781.
(f) Here, where respondent has continuously and deliberately exploited the New
Hampshire market, it must reasonably anticipate being haled into court there in a libel
action based on the contents of its magazine. And, since respondent can be charged with
knowledge of the "single publication rule," it must anticipate that such a suit will seek
nationwide damages. There is no unfairness in calling respondent to answer for the
contents of its national publication wherever a substantial number of copies are regularly
sold and distributed. P. 465 U. S. 781.
682 F.2d 33, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE,
MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed
an opinion concurring in the judgment,post, p. 465 U. S. 782.
Page 465 U. S. 772
JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Kathy Keeton sued respondent Hustler Magazine, Inc., and other defendants in
the United States District Court for the District of New Hampshire, alleging jurisdiction
over her libel complaint by reason of diversity of citizenship. The District Court dismissed
her suit because it believed that the Due Process Clause of the Fourteenth Amendment
to the United States Constitution forbade the application of New Hampshire's long-arm
statute in order to acquire personal jurisdiction over respondent. The Court of Appeals
for the First Circuit affirmed, 682 F.2d 33 (1982), summarizing its concerns with the
statement that "the New Hampshire tail is too small to wag so large an out-of-state
dog." Id. at 36. We granted certiorari, 459 U.S. 1169 (1983), and we now reverse.
Petitioner Keeton is a resident of New York. Her only connection with New Hampshire is
the circulation there of copies of a magazine that she assists in producing. The magazine
bears petitioner's name in several places crediting her with editorial and other work.
Respondent Hustler Magazine, Inc., is an Ohio corporation, with its principal place of
business in California. Respondent's contacts with New Hampshire consist of the sale of
some 10,000 to 15,000 copies of Hustler Magazine in that State each month. See App.
81a-86a. Petitioner claims to have been libeled in five separate issues of respondent's
magazine published between September, 1975 and May, 1976. [Footnote 1]
Page 465 U. S. 773
The Court of Appeals, in its opinion affirming the District Court's dismissal of petitioner's
complaint, held that petitioner's lack of contacts with New Hampshire rendered the
State's interest in redressing the tort of libel to petitioner too attenuated for an assertion
of personal jurisdiction over respondent. The Court of Appeals observed that the "single
publication rule" ordinarily applicable in multistate libel cases would require it to award
petitioner "damages caused in all states" should she prevail in her suit, even though the
bulk of petitioner's alleged injuries had been sustained outside New Hampshire. 682 F.2d
at 35. [Footnote 2] The court also stressed New Hampshire's unusually long (6-year)
limitations period for libel actions. New Hampshire was the only State where petitioner's
suit would not have been time-barred when it was filed. Under these circumstances, the
Court of Appeals concluded that it would be "unfair" to assert jurisdiction over
respondent. New Hampshire has a minimal interest in applying its unusual statute of
limitations to, and awarding damages for, injuries to a nonresident occurring outside the
State, particularly since petitioner suffered such a small proportion of her total claimed
injury within the State. Id. at 35-36.
We conclude that the Court of Appeals erred when it affirmed the dismissal of
petitioner's suit for lack of personal jurisdiction. Respondent's regular circulation of
magazines in the forum State is sufficient to support an assertion of jurisdiction
Page 465 U. S. 774
in a libel action based on the contents of the magazine. This is so even if New Hampshire
courts, and thus the District Court, under Klaxon Co. v. Stentor Co., 313 U. S. 487 (1941),
would apply the so-called "single publication rule" to enable petitioner to recover in the
New Hampshire action her damages from "publications" of the alleged libel throughout
the United States. [Footnote 3]
The District Court found that
"[t]he general course of conduct in circulating magazines throughout the state was
purposefully directed at New Hampshire, and inevitably affected persons in the state."
App. to Pet. for Cert. 5a. Such regular monthly sales of thousands of magazines cannot
by any stretch of the imagination be characterized as random, isolated, or fortuitous. It
is, therefore, unquestionable that New Hampshire jurisdiction over a complaint based on
those contacts would ordinarily satisfy the requirement of the Due Process Clause that a
State's assertion of personal jurisdiction over a nonresident defendant be predicated on
"minimum contacts" between the defendant and the State. See World-Wide Volkswagen
Corp. v. Woodson, 444 U. S. 286, 444 U. S. 297-298 (1980); International Shoe Co. v.
Washington, 326 U. S. 310, 326 U. S. 317 (1945). And, as the Court of Appeals
acknowledged, New Hampshire has adopted a "long-arm" statute authorizing service of
process on nonresident corporations whenever permitted by the Due Process Clause.
682 F.2d at 33. [Footnote 4] Thus, all the requisites for personal jurisdiction
Page 465 U. S. 775
over Hustler Magazine, Inc., in New Hampshire are present.
We think that the three concerns advanced by the Court of Appeals, whether considered
singly or together, are not sufficiently weighty to merit a different result. The "single
publication rule," New Hampshire's unusually long statute of limitations, and plaintiff's
lack of contacts with the forum State do not defeat jurisdiction otherwise proper under
both New Hampshire law and the Due Process Clause.
In judging minimum contacts, a court properly focuses on "the relationship among the
defendant, the forum, and the litigation." Shaffer v. Heitner, 433 U. S. 186, 433 U. S.
204 (1977). See also Rush v. Savchuk, 444 U. S. 320, 444 U. S. 332 (1980). Thus, it is
certainly relevant to the jurisdictional inquiry that petitioner is seeking to recover
damages suffered in all States in this one suit. The contacts between respondent and the
forum must be judged in the light of that claim, rather than a claim only for damages
sustained in New Hampshire. That is, the contacts between respondent and New
Hampshire must be such that it is "fair" to compel respondent to defend a multistate
lawsuit in New Hampshire seeking nationwide damages for all copies of the five issues in
question, even though only a small portion of those copies were distributed in New
Hampshire.
The Court of Appeals expressed the view that New Hampshire's "interest" in asserting
jurisdiction over plaintiff's multistate claim was minimal. We agree that the "fairness" of
Page 465 U. S. 776
haling respondent into a New Hampshire court depends to some extent on whether
respondent's activities relating to New Hampshire are such as to give that State a
legitimate interest in holding respondent answerable on a claim related to those
activities. See World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 292; McGee
v. International Life Ins. Co., 355 U. S. 220, 355 U. S. 223 (1957). But insofar as the
State's "interest" in adjudicating the dispute is a part of the Fourteenth Amendment due
process equation, as a surrogate for some of the factors already mentioned, see
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 456 U. S.
702-703, n. 10 (1982), we think the interest is sufficient.
The Court of Appeals acknowledged that petitioner was suing, at least in part, for
damages suffered in New Hampshire. 682 F.2d at 34. And it is beyond dispute that New
Hampshire has a significant interest in redressing injuries that actually occur within the
State.
"'A state has an especial interest in exercising judicial jurisdiction over those who commit
torts within its territory. This is because torts involve wrongful conduct which a state
seeks to deter, and against which it attempts to afford protection, by providing that a
tortfeasor shall be liable for damages which are the proximate result of his tort.'"
Leeper v. Leeper, 114 N.H. 294, 298, 319 A.2d 626, 629 (1974) (quoting Restatement
(Second) of Conflict of Laws § 36, Comment c (1971)). This interest extends to libel
actions brought by nonresidents. False statements of fact harm both the subject of the
falsehood and the readers of the statement. New Hampshire may rightly employ its libel
laws to discourage the deception of its citizens. There is "no constitutional value in false
statements of fact." Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 340 (1974).
New Hampshire may also extend its concern to the injury that in-state libel causes within
New Hampshire to a nonresident.
Page 465 U. S. 777
The tort of libel is generally held to occur wherever the offending material is circulated.
Restatement (Second) of Torts § 577A, Comment a (1977). The reputation of the libel
victim may suffer harm even in a State in which he has hitherto been anonymous.
[Footnote 5] The communication of the libel may create a negative reputation among the
residents of a jurisdiction where the plaintiff's previous reputation was, however small, at
least unblemished.
New Hampshire has clearly expressed its interest in protecting such persons from libel,
as well as in safeguarding its populace from falsehoods. Its criminal defamation statute
bears no restriction to libels of which residents are the victim. [Footnote 6] Moreover, in
1971, New Hampshire specifically deleted from its long-arm statute the requirement that
a tort be committed "against a resident of New Hampshire." [Footnote 7]
New Hampshire also has a substantial interest in cooperating with other States, through
the "single publication rule," to provide a forum for efficiently litigating all issues and
damages claims arising out of a libel in a unitary proceeding. [Footnote 8] This rule
reduces the potential serious drain of libel cases on judicial resources. It also serves to
protect defendants from harassment resulting from multiple suits. Restatement (Second)
of Torts § 577A, Comment f (1977). In sum, the combination of New Hampshire's interest
in redressing injuries that occur within the State and its interest in cooperating
Page 465 U. S. 778
with other States in the application of the "single publication rule" demonstrates the
propriety of requiring respondent to answer to a multistate libel action in New
Hampshire. [Footnote 9]
The Court of Appeals also thought that there was an element of due process "unfairness"
arising from the fact that the statutes of limitations in every jurisdiction except New
Hampshire had run on the plaintiff's claim in this case. [Footnote 10] Strictly speaking,
however, any potential unfairness in applying New Hampshire's statute of limitations to
all aspects of this nationwide suit has nothing to do with the jurisdiction of the court to
adjudicate the claims. "The issue is personal jurisdiction, not choice of law." Hanson v.
Denckla, 357 U. S. 235, 357 U. S. 254 (1958). The question of the applicability of New
Hampshire's statute of limitations to claims for out-of-state damages presents itself in
the course of litigation only after jurisdiction over respondent is established, and we do
not think that such choice of law concerns should complicate or distort the jurisdictional
inquiry.
Page 465 U. S. 779
The chance duration of statutes of limitations in nonforum jurisdictions has nothing to do
with the contacts among respondent, New Hampshire, and this multistate libel action.
Whether Ohio's limitations period is six months or six years does not alter the
jurisdictional calculus in New Hampshire. Petitioner's successful search for a State with a
lengthy statute of limitations is no different from the litigation strategy of countless
plaintiffs who seek a forum with favorable substantive or procedural rules or sympathetic
local populations. Certainly Hustler Magazine, Inc., which chose to enter the New
Hampshire market, can be charged with knowledge of its laws, and no doubt would have
claimed the benefit of them if it had a complaint against a subscriber, distributor, or
other commercial partner.
Finally, implicit in the Court of Appeals' analysis of New Hampshire's interest is an
emphasis on the extremely limited contacts of the plaintiff with New Hampshire. But we
have not to date required a plaintiff to have "minimum contacts" with the forum State
before permitting that State to assert personal jurisdiction over a nonresident defendant.
On the contrary, we have upheld the assertion of jurisdiction where such contacts were
entirely lacking. In Perkins v. Benguet Mining Co., 342 U. S. 437 (1952), none of the
parties was a resident of the forum State; indeed, neither the plaintiff nor the subject
matter of his action had any relation to that State. Jurisdiction was based solely on the
fact that the defendant corporation had been carrying on in the forum "a continuous and
systematic, but limited, part of its general business." Id. at 342 U. S. 438. In the instant
case, respondent's activities in the forum may not be so substantial as to support
jurisdiction over a cause of action unrelated to those activities. [Footnote 11] But
Page 465 U. S. 780
respondent is carrying on a "part of its general business" in New Hampshire, and that is
sufficient to support jurisdiction when the cause of action arises out of the very activity
being conducted, in part, in New Hampshire.
The plaintiff's residence is not, of course, completely irrelevant to the jurisdictional
inquiry. As noted, that inquiry focuses on the relations among the defendant, the forum,
and the litigation. Plaintiff's residence may well play an important role in determining the
propriety of entertaining a suit against the defendant in the forum. That is, plaintiff's
residence in the forum may, because of defendant's relationship with the plaintiff,
enhance defendant's contacts with the forum. Plaintiff's residence may be the focus of
the activities of the defendant out of which the suit arises. See Calder v. Jones,
post at 465 U. S. 788-789; McGee v. International Life Ins. Co., 355 U. S. 220 (1957). But
plaintiff's residence in the forum State is not a separate requirement, and lack of
residence will not defeat jurisdiction established on the basis of defendant's contacts.
It is undoubtedly true that the bulk of the harm done to petitioner occurred outside New
Hampshire. But that will be true in almost every libel action brought somewhere other
than the plaintiff's domicile. There is no justification for restricting libel actions to the
plaintiff's home forum. [Footnote 12] The victim of a libel, like the victim of any other
tort, may choose to bring suit in any forum with which the defendant has
"certain minimum contacts . . . such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial
Page 465 U. S. 781
justice.' Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463 [(1940)]."
International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 316.
Where, as in this case, respondent Hustler Magazine, Inc., has continuously and
deliberately exploited the New Hampshire market, it must reasonably anticipate being
haled into court there in a libel action based on the contents of its magazine. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 297-298. And, since respondent can
be charged with knowledge of the "single publication rule," it must anticipate that such a
suit will seek nationwide damages. Respondent produces a national publication aimed at
a nationwide audience. There is no unfairness in calling it to answer for the contents of
that publication wherever a substantial number of copies are regularly sold and
distributed.
The judgment of the Court of Appeals is reversed, [Footnote 13] and the cause is
remanded for proceedings consistent with this opinion.
It is so ordered.
Page 465 U. S. 782
[Footnote 1]
Initially, petitioner brought suit for libel and invasion of privacy in Ohio, where the
magazine was published. Her libel claim, however, was dismissed as barred by the Ohio
statute of limitations, and her invasion of privacy claim was dismissed as barred by the
New York statute of limitations, which the Ohio court considered to be "migratory."
Petitioner then filed the present action in October, 1980.
[Footnote 2]
The "single publication rule" has been summarized as follows:
"As to any single publication, (a) only one action for damages can be maintained; (b) all
damages suffered in all jurisdictions can be recovered in the one action; and (c) a
judgment for or against the plaintiff upon the merits of any action for damages bars any
other action for damages between the same parties in all jurisdictions."
Restatement (Second) of Torts § 577A(4) (1977).
[Footnote 3]
"It is the general rule that each communication of the same defamatory matter by the
same defamer, whether to a new person or to the same person, is a separate and
distinct publication, for which a separate cause of action arises."
Id. § 577A, Comment a. The "single publication rule" is an exception to this general rule.
[Footnote 4]
New Hampshire Rev.Stat.Ann. § 300:14 (1977) provides in relevant part:
"If a foreign corporation . . . commits a tort in whole or in part in New Hampshire, such
ac[t] shall be deemed to be doing business in New Hampshire by such foreign
corporation and shall be deemed equivalent to the appointment by such foreign
corporation of the secretary of the state of New Hampshire and his successors to be its
true and lawful attorney upon whom may be served all lawful process in any actions or
proceedings against such foreign corporation arising from or growing out of such . . .
tort."
This statute has been construed in the New Hampshire courts to extend jurisdiction over
nonresident corporations to the fullest extent permitted under the Federal
Constitution. See, e.g., Roy v. North American Newspaper Alliance, Inc., 106 N.H. 92, 95,
205 A.2d 844, 846 (1964).
[Footnote 5]
We do not, therefore, rely for our holding on the fact that petitioner's name appears in
fine print in several places in a magazine circulating in New Hampshire.
[Footnote 6]
New Hampshire Rev.Stat.Ann. § 644:11(1) (1974) makes it a misdemeanor for anyone to
"purposely communicat[e] to any person, orally or in writing, any information which he
knows to be false and knows will tend to expose any other living person to public hatred,
contempt or ridicule."
(Emphasis added.)
[Footnote 7]
See N.H.Rev.Stat.Ann. § 300:14 (1977), History.
[Footnote 8]
The great majority of the States now follow the "single publication rule." Restatement
(Second) of Torts § 577A, Appendix, Reporter's Note (1977).
[Footnote 9]
Of course, to conclude that petitioner may properly seek multistate damages in this New
Hampshire suit is not to conclude that such damages should, in fact, be awarded if
petitioner makes out her case for libel. The actual applicability of the "single publication
rule" in the peculiar circumstances of this case is a matter of substantive law, not
personal jurisdiction. We conclude only that the District Court has jurisdiction to
entertain petitioner's multistate libel suit.
[Footnote 10]
Under traditional choice of law principles, the law of the forum State governs on matters
of procedure. See Restatement (Second) of Conflict of Laws § 122 (1971). In New
Hampshire, statutes of limitations are considered procedural. Gordon v. Gordon, 118
N.H. 366, 360, 387 A.2d 339, 342 (1978); Barrett v. Boston & Maine R. Co., 104 N.H. 70,
178 A.2d 291 (1962). There has been considerable academic criticism of the rule that
permits a forum State to apply its own statute of limitations regardless of the
significance of contacts between the forum State and the litigation. See, e.g., R.
Weintraub, Commentary on the Conflict of Laws § 9.2B, p. 517 (2d ed.1980); Martin,
Constitutional Limitations on Choice of Law, 61 Cornell L.Rev. 185, 221 (1976);
Comment, The Statute of Limitations and the Conflict of Laws, 28 Yale L.J. 492, 496-497
(1919). But we find it unnecessary to express an opinion at this time as to whether any
arguable unfairness rises to the level of a due process violation.
[Footnote 11]
The defendant corporation's contacts with the forum State in Perkins were more
substantial than those of respondent with New Hampshire in this case. In Perkins, the
corporation's mining operations, located in the Philippine Islands, were completely halted
during the Japanese occupation. The president, who was also general manager and
principal stockholder of the company, returned to his home in Ohio, where he carried on
"a continuous and systematic supervision of the necessarily limited wartime activities of
the company." 342 U.S. at 342 U. S. 448. The company's files were kept in Ohio, several
directors' meetings were held there, substantial accounts were maintained in Ohio
banks, and all key business decisions were made in the State. Ibid. In those
circumstances, Ohio was the corporation's principal, if temporary, place of business, so
that Ohio jurisdiction was proper even over a cause of action unrelated to the activities
in the State.
[Footnote 12]
As noted in Calder v. Jones, post at 465 U. S. 790-791, we reject categorically the
suggestion that invisible radiations from the First Amendment may defeat jurisdiction
otherwise proper under the Due Process Clause.
[Footnote 13]
In addition to Hustler Magazine, Inc., Larry Flynt, the publisher, editor, and owner of the
magazine, and L. F. P., Inc., Hustler's holding company, were named as defendants in the
District Court. It does not, of course, follow from the fact that jurisdiction may be
asserted over Hustler Magazine, Inc., that jurisdiction may also be asserted over either of
the other defendants. In Calder v. Jones, post at 465 U. S. 790, we today reject the
suggestion that employees who act in their official capacity are somehow shielded from
suit in their individual capacity. But jurisdiction over an employee does not automatically
follow from jurisdiction over the corporation which employs him; nor does jurisdiction
over a parent corporation automatically establish jurisdiction over a wholly owned
subsidiary. Consolidated Textile Co. v. Gregory, 289 U. S. 85, 289 U. S.
88 (1933); Peterson v. Chicago, R. I. & P. R. Co., 205 U. S. 364, 205 U. S. 391 (1907).
Each defendant's contacts with the forum State must be assessed individually. See Rush
v. Savchuk, 444 U. S. 320, 444 U. S. 332 (1980) ("The requirements of International
Shoe . . . must be met as to each defendant over whom a state court exercises
jurisdiction"). Because the Court of Appeals concluded that jurisdiction could not be had
even against Hustler Magazine, Inc., it did not inquire into the propriety of jurisdiction
over the other defendants. Such inquiry is, of course, open upon remand.
JUSTICE BRENNAN, concurring in the judgment.
I agree with the Court that
"[r]espondent's regular circulation of magazines in the forum State is sufficient to
support an assertion of jurisdiction in a libel action based on the contents of the
magazine."
Ante at 465 U. S. 773-774. These contacts between the respondent and the forum State
are sufficiently important and sufficiently related to the underlying cause of action to
foreclose any concern that the constitutional limits of the Due Process Clause are being
violated. This is so, moreover, irrespective of the State's interest in enforcing its
substantive libel laws or its unique statute of limitations. Indeed, as we recently
explained in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S.
694 (1982), these interests of the State should be relevant only to the extent that they
bear upon the liberty interests of the respondent that are protected by the Fourteenth
Amendment.
"The restriction on state sovereign power described in World-Wide Volkswagen Corp. [v.
Woodson, 444 U. S. 286, 444 U. S. 291-292 (1980)] must be seen as ultimately a function
of the individual liberty interest preserved by the Due Process Clause. That Clause is the
only source of the personal jurisdiction requirement and the Clause itself makes no
mention of federalism concerns."
Id. at 456 U. S. 702-703, n. 10.

- World-wide Volkswagen Corp. vs. Woodson, 444 U.S. 286 (1980)

United States Supreme Court

WORLD-WIDE VOLKSWAGEN CORP. v. WOODSON(1980)

No. 78-1078

Argued: October 03, 1979Decided: January 21, 1980

A products-liability action was instituted in an Oklahoma state court by respondents

husband and wife to recover for personal injuries sustained in Oklahoma in an accident
involving an automobile that had been purchased by them in New York while they were
New York residents and that was being driven through Oklahoma at the time of the
accident. The defendants included the automobile retailer and its wholesaler
(petitioners), New York corporations that did no business in Oklahoma. Petitioners
entered special appearances, claiming that Oklahoma's exercise of jurisdiction over
them would offend limitations on the State's jurisdiction imposed by the Due Process
Clause of the Fourteenth Amendment. The trial court rejected petitioners' claims, and
they then sought, but were denied, a writ of prohibition in the Oklahoma Supreme Court
to restrain respondent trial judge from exercising in personam jurisdiction over them.

Held:

Consistently with the Due Process Clause, the Oklahoma trial court may not exercise in
personam jurisdiction over petitioners. Pp. 291-299.
 (a) A state court may exercise personal jurisdiction over a nonresident defendant
only so long as there exist "minimum contacts" between the defendant and the
forum State. International Shoe Co. v. Washington, 326 U.S. 310 . The defendant's
contacts with the forum State must be such that maintenance of the suit does not
offend traditional notions of fair play and substantial justice, id., at 316, and the
relationship between the defendant and the forum must be such that it is
"reasonable . . . to require the corporation to defend the particular suit which is
brought there," id., at 317. The Due Process Clause "does not contemplate that a
state may make binding a judgment in personam against an individual or
corporate defendant with which the state has no contacts, ties, or relations." Id., at
319. Pp. 291-294.
(b) Here, there is a total absence in the record of those affiliating circumstances
that are a necessary predicate to any exercise of state-court jurisdiction.
Petitioners carry on no activity whatsoever in Oklahoma; they close no sales and
perform no services there, avail [444 U.S. 286, 287] themselves of none of the
benefits of Oklahoma law, and solicit no business there either through
salespersons or through advertising reasonably calculated to reach that State. Nor
does the record show that they regularly sell cars to Oklahoma residents or that
they indirectly, through others, serve or seek to serve the Oklahoma market.
Although it is foreseeable that automobiles sold by petitioners would travel to
Oklahoma and that the automobile here might cause injury in Oklahoma,
"foreseeability" alone is not a sufficient benchmark for personal jurisdiction under
the Due Process Clause. The foreseeability that is critical to due process analysis is
not the mere likelihood that a product will find its way into the forum State, but
rather is that the defendant's conduct and connection with the forum are such that
he should reasonably anticipate being haled into court there. Nor can jurisdiction
be supported on the theory that petitioners earn substantial revenue from goods
used in Oklahoma. Pp. 295-299.
585 P.2d 351, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART,
POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion,
post, p. 299. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J., joined,
post, p. 313 BLACKMUN, J., filed a dissenting opinion, post, p. 317.

Herbert Rubin argued the cause for petitioners. With him on the briefs were Dan A.
Rogers, Bernard J. Wald, and Ian Ceresney.

Jefferson G. Greer argued the cause for respondents. With him on the brief was Charles
A. Whitebook.

MR. JUSTICE WHITE delivered the opinion of the Court.

The issue before us is whether, consistently with the Due Process Clause of the
Fourteenth Amendment, an Oklahoma court may exercise in personam jurisdiction over
a nonresident automobile retailer and its wholesale distributor in a products-liability
action, when the defendants' only connection with Oklahoma is the fact that an
automobile sold in New York to New York residents became involved in an accident in
Oklahoma. [444 U.S. 286, 288]

Respondents Harry and Kay Robinson purchased a new Audi automobile from petitioner
Seaway Volkswagen, Inc. (Seaway), in Massena, N. Y., in 1976. The following year the
Robinson family, who resided in New York, left that State for a new home in Arizona. As
they passed through the State of Oklahoma, another car struck their Audi in the rear,
causing a fire which severely burned Kay Robinson and her two children. 1

The Robinsons 2 subsequently brought a products-liability action in the District Court for
Creek County, Okla., claiming that their injuries resulted from defective design and
placement of the Audi's gas tank and fuel system. They joined as defendants the
automobile's manufacturer, Audi NSU Auto Union Aktiengesellschaft (Audi); its importer,
Volkswagen of America, Inc. (Volkswagen); its regional distributor, petitioner World-Wide
Volkswagen Corp. (World-Wide); and its retail dealer, petitioner Seaway. Seaway and
World-Wide entered special appearances, 3 claiming that Oklahoma's exercise of
jurisdiction over them would offend the limitations on the State's jurisdiction imposed by
the Due Process Clause of the Fourteenth Amendment. 4

The facts presented to the District Court showed that World-Wide is incorporated and has
its business office in New [444 U.S. 286, 289] York. It distributes vehicles, parts, and
accessories, under contract with Volkswagen, to retail dealers in New York, New Jersey,
and Connecticut. Seaway, one of these retail dealers, is incorporated and has its place of
business in New York. Insofar as the record reveals, Seaway and World-Wide are fully
independent corporations whose relations with each other and with Volkswagen and Audi
are contractual only. Respondents adduced no evidence that either World-Wide or
Seaway does any business in Oklahoma, ships or sells any products to or in that State,
has an agent to receive process there, or purchases advertisements in any media
calculated to reach Oklahoma. In fact, as respondents' counsel conceded at oral
argument, Tr. of Oral Arg. 32, there was no showing that any automobile sold by World-
Wide or Seaway has ever entered Oklahoma with the single exception of the vehicle
involved in the present case.

Despite the apparent paucity of contacts between petitioners and Oklahoma, the District
Court rejected their constitutional claim and reaffirmed that ruling in denying petitioners'
motion for reconsideration. 5 Petitioners then sought a writ of prohibition in the Supreme
Court of Oklahoma to restrain the District Judge, respondent Charles S. Woodson, from
exercising in personam jurisdiction over them. They renewed their contention that,
because they had no "minimal contacts," App. 32, with the State of Oklahoma, the
actions of the District Judge were in violation of their rights under the Due Process
Clause.

The Supreme Court of Oklahoma denied the writ, 585 P.2d 351 (1978), 6 holding that
personal jurisdiction over petitioners was authorized by Oklahoma's "long-arm"
statute, [444 U.S. 286, 290] Okla. Stat., Tit. 12, 1701.03 (a) (4) (1971). 7 Although the
court noted that the proper approach was to test jurisdiction against both statutory and
constitutional standards, its analysis did not distinguish these questions, probably
because 1701.03 (a) (4) has been interpreted as conferring jurisdiction to the limits
permitted by the United States Constitution. 8 The court's rationale was contained in the
following paragraph, 585 P.2d, at 354:

"In the case before us, the product being sold and distributed by the petitioners is
by its very design and purpose so mobile that petitioners can foresee its possible
use in Oklahoma. This is especially true of the distributor, who has the exclusive
right to distribute such automobile in New York, New Jersey and Connecticut. The
evidence presented below demonstrated that goods sold and distributed by the
petitioners were used in the State of Oklahoma, and under the facts we believe it
reasonable to infer, given the retail value of the automobile, that the petitioners
derive substantial income from automobiles which from time to time are used in
the State of Oklahoma. This being the case, we hold that under the facts
presented, the trial court was justified in concluding [444 U.S. 286, 291] that the
petitioners derive substantial revenue from goods used or consumed in this State."
We granted certiorari, 440 U.S. 907 (1979), to consider an important constitutional
question with respect to state-court jurisdiction and to resolve a conflict between the
Supreme Court of Oklahoma and the highest courts of at least four other States. 9 We
reverse.

II

The Due Process Clause of the Fourteenth Amendment limits the power of a state court
to render a valid personal judgment against a nonresident defendant. Kulko v. California
Superior Court, 436 U.S. 84, 91 (1978). A judgment rendered in violation of due process
is void in the rendering State and is not entitled to full faith and credit elsewhere.
Pennoyer v. Neff, 95 U.S. 714, 732 -733 (1878). Due process requires that the defendant
be given adequate notice of the suit, Mullane v. Central Hanover Trust Co., 339 U.S. 306,
313 -314 (1950), and be subject to the personal jurisdiction of the court, International
Shoe Co. v. Washington, 326 U.S. 310 (1945). In the present case, it is not contended
that notice was inadequate; the only question is whether these particular petitioners
were subject to the jurisdiction of the Oklahoma courts.

As has long been settled, and as we reaffirm today, a state court may exercise personal
jurisdiction over a nonresident defendant only so long as there exist "minimum contacts"
between the defendant and the forum State. International Shoe Co. v. Washington,
supra, at 316. The concept of minimum contacts, in turn, can be seen to perform two
related, but [444 U.S. 286, 292] distinguishable, functions. It protects the defendant
against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure
that the States, through their courts, do not reach out beyond the limits imposed on
them by their status as coequal sovereigns in a federal system.

The protection against inconvenient litigation is typically described in terms of

"reasonableness" or "fairness." We have said that the defendant's contacts with the
forum State must be such that maintenance of the suit "does not offend `traditional
notions of fair play and substantial justice.'" International Shoe Co. v. Washington, supra,
at 316, quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940). The relationship between
the defendant and the forum must be such that it is "reasonable . . . to require the
corporation to defend the particular suit which is brought there." 326 U.S., at 317 .
Implicit in this emphasis on reasonableness is the understanding that the burden on the
defendant, while always a primary concern, will in an appropriate case be considered in
light of other relevant factors, including the forum State's interest in adjudicating the
dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957); the plaintiff's
interest in obtaining convenient and effective relief, see Kulko v. California Superior
Court, supra, at 92, at least when that interest is not adequately protected by the
plaintiff's power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186, 211 , n. 37
(1977); the interstate judicial system's interest in obtaining the most efficient resolution
of controversies; and the shared interest of the several States in furthering fundamental
substantive social policies, see Kulko v. California Superior Court, supra, at 93, 98.

The limits imposed on state jurisdiction by the Due Process Clause, in its role as a
guarantor against inconvenient litigation, have been substantially relaxed over the
years. As we noted in McGee v. International Life Ins. Co., supra, at 222-223 [444 U.S. 286,
293] this trend is largely attributable to a fundamental transformation in the American
economy:

"Today many commercial transactions touch two or more States and may involve
parties separated by the full continent. With this increasing nationalization of
commerce has come a great increase in the amount of business conducted by mail
across state lines. At the same time modern transportation and communication
have made it much less burdensome for a party sued to defend himself in a State
where he engages in economic activity."
The historical developments noted in McGee, of course, have only accelerated in the
generation since that case was decided.

Nevertheless, we have never accepted the proposition that state lines are irrelevant for
jurisdictional purposes, nor could we, and remain faithful to the principles of interstate
federalism embodied in the Constitution. The economic interdependence of the States
was foreseen and desired by the Framers. In the Commerce Clause, they provided that
the Nation was to be a common market, a "free trade unit" in which the States are
debarred from acting as separable economic entities. H. P. Hood & Sons, Inc. v. Du
Mond, 336 U.S. 525, 538 (1949). But the Framers also intended that the States retain
many essential attributes of sovereignty, including, in particular, the sovereign power to
try causes in their courts. The sovereignty of each State, in turn, implied a limitation on
the sovereignty of all of its sister States - a limitation express or implicit in both the
original scheme of the Constitution and the Fourteenth Amendment.
Hence, even while abandoning the shibboleth that "[t]he authority of every tribunal is
necessarily restricted by the territorial limits of the State in which it is established,"
Pennoyer v. Neff, supra, at 720, we emphasized that the reasonableness of asserting
jurisdiction over the defendant must be assessed "in the context of our federal system of
government," [444 U.S. 286, 294] International Shoe Co. v. Washington, 326 U.S., at 317 ,
and stressed that the Due Process Clause ensures not only fairness, but also the "orderly
administration of the laws," id., at 319. As we noted in Hanson v. Denckla, 357 U.S. 235,
250 -251 (1958):

"As technological progress has increased the flow of commerce between the
States, the need for jurisdiction over nonresidents has undergone a similar
increase. At the same time, progress in communications and transportation has
made the defense of a suit in a foreign tribunal less burdensome. In response to
these changes, the requirements for personal jurisdiction over nonresidents have
evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714 , to the flexible
standard of International Shoe Co. v. Washington, 326 U.S. 310 . But it is a mistake
to assume that this trend heralds the eventual demise of all restrictions on the
personal jurisdiction of state courts. [Citation omitted.] Those restrictions are more
than a guarantee of immunity from inconvenient or distant litigation. They are a
consequence of territorial limitations on the power of the respective States."
Thus, the Due Process Clause "does not contemplate that a state may make binding a
judgment in personam against an individual or corporate defendant with which the state
has no contacts, ties, or relations." International Shoe Co. v. Washington, supra, at 319.
Even if the defendant would suffer minimal or no inconvenience from being forced to
litigate before the tribunals of another State; even if the forum State has a strong
interest in applying its law to the controversy; even if the forum State is the most
convenient location for litigation, the Due Process Clause, acting as an instrument of
interstate federalism, may sometimes act to divest the State of its power to render a
valid judgment. Hanson v. Denckla, supra, at 251, 254. [444 U.S. 286, 295]

III

Applying these principles to the case at hand, 10 we find in the record before us a total
absence of those affiliating circumstances that are a necessary predicate to any exercise
of state-court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma. They
close no sales and perform no services there. They avail themselves of none of the
privileges and benefits of Oklahoma law. They solicit no business there either through
salespersons or through advertising reasonably calculated to reach the State. Nor does
the record show that they regularly sell cars at wholesale or retail to Oklahoma
customers or residents or that they indirectly, through others, serve or seek to serve the
Oklahoma market. In short, respondents seek to base jurisdiction on one, isolated
occurrence and whatever inferences can be drawn therefrom: the fortuitous
circumstance that a single Audi automobile, sold in New York to New York residents,
happened to suffer an accident while passing through Oklahoma.

It is argued, however, that because an automobile is mobile by its very design and
purpose it was "foreseeable" that the Robinsons' Audi would cause injury in Oklahoma.
Yet "foreseeability" alone has never been a sufficient benchmark for personal jurisdiction
under the Due Process Clause. In Hanson v. Denckla, supra, it was no doubt foreseeable
that the settlor of a Delaware trust would subsequently move to Florida and seek to
exercise a power of appointment there; yet we held that Florida courts could not
constitutionally [444 U.S. 286, 296] exercise jurisdiction over a Delaware trustee that had
no other contacts with the forum State. In Kulko v. California Superior Court, 436 U.S. 84
(1978), it was surely "foreseeable" that a divorced wife would move to California from
New York, the domicile of the marriage, and that a minor daughter would live with the
mother. Yet we held that California could not exercise jurisdiction in a child-support
action over the former husband who had remained in New York.

If foreseeability were the criterion, a local California tire retailer could be forced to
defend in Pennsylvania when a blowout occurs there, see Erlanger Mills, Inc. v. Cohoes
Fibre Mills, Inc., 239 F.2d 502, 507 (CA4 1956); a Wisconsin seller of a defective
automobile jack could be haled before a distant court for damage caused in New Jersey,
Reilly v. Phil Tolkan Pontiac, Inc., 372 F. Supp. 1205 (NJ 1974); or a Florida soft-drink
concessionaire could be summoned to Alaska to account for injuries happening there,
see Uppgren v. Executive Aviation Services, Inc., 304 F. Supp. 165, 170-171 (Minn.
1969). Every seller of chattels would in effect appoint the chattel his agent for service of
process. His amenability to suit would travel with the chattel. We recently abandoned the
outworn rule of Harris v. Balk, 198 U.S. 215 (1905), that the interest of a creditor in a
debt could be extinguished or otherwise affected by any State having transitory
jurisdiction over the debtor. Shaffer v. Heitner, 433 U.S. 186 (1977). Having interred the
mechanical rule that a creditor's amenability to a quasi in rem action travels with his
debtor, we are unwilling to endorse an analogous principle in the present case. 11 [444
U.S. 286, 297]

This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability
that is critical to due process analysis is not the mere likelihood that a product will find
its way into the forum State. Rather, it is that the defendant's conduct and connection
with the forum State are such that he should reasonably anticipate being haled into
court there. See Kulko v. California Superior Court, supra, at 97-98; Shaffer v. Heitner,
433 U.S., at 216 ; and see id., at 217-219 (STEVENS, J., concurring in judgment). The Due
Process Clause, by ensuring the "orderly administration of the laws," International Shoe
Co. v. Washington, 326 U.S., at 319 , gives a degree of predictability to the legal system
that allows potential defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them liable to suit.

When a corporation "purposefully avails itself of the privilege of conducting activities

within the forum State," Hanson v. Denckla, 357 U.S., at 253 , it has clear notice that it is
subject to suit there, and can act to alleviate the risk of burdensome litigation by
procuring insurance, passing the expected costs on to customers, or, if the risks are too
great, severing its connection with the State. Hence if the sale of a product of a
manufacturer or distributor such as Audi or Volkswagen is not simply an isolated
occurrence, but arises from the efforts of the manufacturer or distributor to serve,
directly or indirectly, the market for its product in other States, it is not unreasonable to
subject it to suit in one of those States if its allegedly defective merchandise has there
been the source of injury to its owner or to others. The forum State does not [444 U.S. 286,
298] exceed its powers under the Due Process Clause if it asserts personal jurisdiction
over a corporation that delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum State. Cf. Gray v.
American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N. E. 2d 761 (1961).

But there is no such or similar basis for Oklahoma jurisdiction over World-Wide or
Seaway in this case. Seaway's sales are made in Massena, N. Y. World-Wide's market,
although substantially larger, is limited to dealers in New York, New Jersey, and
Connecticut. There is no evidence of record that any automobiles distributed by World-
Wide are sold to retail customers outside this tristate area. It is foreseeable that the
purchasers of automobiles sold by World-Wide and Seaway may take them to Oklahoma.
But the mere "unilateral activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the forum State." Hanson v.
Denckla, supra, at 253.

In a variant on the previous argument, it is contended that jurisdiction can be supported

by the fact that petitioners earn substantial revenue from goods used in Oklahoma. The
Oklahoma Supreme Court so found, 585 P.2d, at 354-355, drawing the inference that
because one automobile sold by petitioners had been used in Oklahoma, others might
have been used there also. While this inference seems less than compelling on the facts
of the instant case, we need not question the court's factual findings in order to reject its
reasoning.

This argument seems to make the point that the purchase of automobiles in New York,
from which the petitioners earn substantial revenue, would not occur but for the fact that
the automobiles are capable of use in distant States like Oklahoma. Respondents
observe that the very purpose of an automobile is to travel, and that travel of
automobiles sold by petitioners is facilitated by an extensive chain of Volkswagen service
centers throughout the country, including some in Oklahoma. 12 [444 U.S. 286,
299] However, financial benefits accruing to the defendant from a collateral relation to
the forum State will not support jurisdiction if they do not stem from a constitutionally
cognizable contact with that State. See Kulko v. California Superior Court, 436 U.S., at 94
-95. In our view, whatever marginal revenues petitioners may receive by virtue of the
fact that their products are capable of use in Oklahoma is far too attenuated a contact to
justify that State's exercise of in personam jurisdiction over them.

Because we find that petitioners have no "contacts, ties, or relations" with the State of
Oklahoma, International Shoe Co. v. Washington, supra, at 319, the judgment of the
Supreme Court of Oklahoma is

Reversed.

MR. JUSTICE BRENNAN, dissenting. *

The Court holds that the Due Process Clause of the Fourteenth Amendment bars the
States from asserting jurisdiction over the defendants in these two cases. In each case
the Court so decides because it fails to find the "minimum contacts" that have been
required since International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Because I
believe that the Court reads International Shoe and its progeny too narrowly, and
because I believe that the standards enunciated by those cases may already be obsolete
as constitutional boundaries, I dissent.

The Court's opinions focus tightly on the existence of contacts between the forum and
the defendant. In so doing, they accord too little weight to the strength of the forum
State's interest in the case and fail to explore whether there [444 U.S. 286, 300] would be
any actual inconvenience to the defendant. The essential inquiry in locating the
constitutional limits on state-court jurisdiction over absent defendants is whether the
particular exercise of jurisdiction offends "`traditional notions of fair play and substantial
justice.'" International Shoe, supra, at 316, quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940). The clear focus in International Shoe was on fairness and reasonableness. Kulko
v. California Superior Court, 436 U.S. 84, 92 (1978). The Court specifically declined to
establish a mechanical test based on the quantum of contacts between a State and the
defendant:

"Whether due process is satisfied must depend rather upon the quality and nature
of the activity in relation to the fair and orderly administration of the laws which it
was the purpose of the due process clause to insure. That clause does not
contemplate that a state may make binding a judgment in personam against an
individual or corporate defendant with which the state has no contacts, ties, or
relations." 326 U.S., at 319 (emphasis added).
The existence of contacts, so long as there were some, was merely one way of giving
content to the determination of fairness and reasonableness.

Surely International Shoe contemplated that the significance of the contacts necessary
to support jurisdiction would diminish if some other consideration helped establish that
jurisdiction would be fair and reasonable. The interests of the State and other parties in
proceeding with the case in a particular forum are such considerations. McGee v.
International Life Ins. Co., 355 U.S. 220, 223 (1957), for instance, accorded great
importance to a State's "manifest interest in providing effective means of redress" for its
citizens. See also Kulko v. California Superior Court, supra, at 92; Shaffer v. Heitner, 433
U.S. 186, 208 (1977); Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950).

Another consideration is the actual burden a defendant [444 U.S. 286, 301] must bear in
defending the suit in the forum. McGee, supra. Because lesser burdens reduce the
unfairness to the defendant, jurisdiction may be justified despite less significant
contacts. The burden, of course, must be of constitutional dimension. Due process limits
on jurisdiction do not protect a defendant from all inconvenience of travel, McGee, supra,
at 224, and it would not be sensible to make the constitutional rule turn solely on the
number of miles the defendant must travel to the courtroom. 1 Instead, the
constitutionally significant "burden" to be analyzed relates to the mobility of the
defendant's defense. For instance, if having to travel to a foreign forum would hamper
the defense because witnesses or evidence or the defendant himself were immobile, or if
there were a disproportionately large number of witnesses or amount of evidence that
would have to be transported at the defendant's expense, or if being away from home
for the duration of the trial would work some special hardship on the defendant, then the
Constitution would require special consideration for the defendant's interests.

That considerations other than contacts between the forum and the defendant are
relevant necessarily means that the Constitution does not require that trial be held in the
State which has the "best contacts" with the defendant. See Shaffer v. Heitner, supra, at
228 (BRENNAN, J., dissenting). The defendant has no constitutional entitlement to the
best forum or, for that matter, to any particular forum. Under even the most restrictive
view of International Shoe, several States could have jurisdiction over a particular cause
of action. We need only determine whether the forum States in these cases satisfy the
constitutional minimum. 2 [444 U.S. 286, 302]

II

In each of these cases, I would find that the forum State has an interest in permitting the
litigation to go forward, the litigation is connected to the forum, the defendant is linked
to the forum, and the burden of defending is not unreasonable. Accordingly, I would hold
that it is neither unfair nor unreasonable to require these defendants to defend in the
forum State.

In No. 78-952, a number of considerations suggest that Minnesota is an interested and

convenient forum. The action was filed by a bona fide resident of the
forum. 3 Consequently, Minnesota's interests are similar to, even if lesser than, the
interests of California in McGee, supra, "in providing a forum for its residents and in
regulating the activities of insurance companies" doing business in the State. 4 Post, at
332. Moreover, Minnesota has "attempted to assert [its] particularized interest in trying
such cases in its courts by . . . enacting a special jurisdictional statute." Kulko, supra, at
98; McGee, supra, at 221, 224. As in McGee, a resident forced to travel to a distant State
to prosecute an action [444 U.S. 286, 303] against someone who has injured him could, for
lack of funds, be entirely unable to bring the cause of action. The plaintiff's residence in
the State makes the State one of a very few convenient fora for a personal injury case
(the others usually being the defendant's home State and the State where the accident
occurred). 5

In addition, the burden on the defendant is slight. As Judge Friendly has recognized,
Shaffer emphasizes the importance of identifying the real impact of the lawsuit.
O'Connor v. Lee-Hy Paving Corp., 579 F.2d 194, 200 (CA2 1978) (upholding the
constitutionality of jurisdiction in a very similar case under New York's law after Shaffer).
Here the real impact is on the defendant's insurer, which is concededly amenable to suit
in the forum State. The defendant is carefully protected from financial liability because
the action limits the prayer for damages to the insurance policy's liability limit. 6 The
insurer will handle the case for the defendant. The defendant is only a nominal party who
need be no more active in the case than the cooperation clause of his policy requires.
Because of the ease of airline transportation, he need not lose significantly more time
than if the case were at home. Consequently, if the suit went forward [444 U.S. 286,
304] in Minnesota, the defendant would bear almost no burden or expense beyond what
he would face if the suit were in his home State. The real impact on the named
defendant is the same as it is in a direct action against the insurer, which would be
constitutionally permissible. Watson v. Employers Liability Assurance Corp., 348 U.S. 66
(1954); Minichiello v. Rosenberg, 410 F.2d 106, 109-110 (CA2 1968). The only distinction
is the formal, "analytica[l] prerequisite," post, at 331, of making the insured a named
party. Surely the mere addition of appellant's name to the complaint does not suffice to
create a due process violation. 7

Finally, even were the relevant inquiry whether there are sufficient contacts between the
forum and the named defendant, I would find that such contacts exist. The insurer's
presence in Minnesota is an advantage to the defendant that may well have been a
consideration in his selecting the policy he did. An insurer with offices in many States
makes it easier for the insured to make claims or conduct other business that may
become necessary while traveling. It is simply not true that "State Farm's decision to do
business in Minnesota was completely adventitious as far as Rush was concerned." Post,
at 328-329. By buying a State Farm policy, the defendant availed himself of the benefits
he might derive from having an insurance agent in Minnesota who could, among other
things, facilitate a suit for appellant against a Minnesota resident. It seems unreasonable
to read the Constitution as permitting one to take advantage of his nationwide insurance
network but not to be burdened by it.

In sum, I would hold that appellant is not deprived of due process by being required to
submit to trial in Minnesota, first because Minnesota has a sufficient interest in and
connection [444 U.S. 286, 305] to this litigation and to the real and nominal defendants,
and second because the burden on the nominal defendant is sufficiently slight.

In No. 78-1078, the interest of the forum State and its connection to the litigation is
strong. The automobile accident underlying the litigation occurred in Oklahoma. The
plaintiffs were hospitalized in Oklahoma when they brought suit. Essential witnesses and
evidence were in Oklahoma. See Shaffer v. Heitner, 433 U.S., at 208 . The State has a
legitimate interest in enforcing its laws designed to keep its highway system safe, and
the trial can proceed at least as efficiently in Oklahoma as anywhere else.

The petitioners are not unconnected with the forum. Although both sell automobiles
within limited sales territories, each sold the automobile which in fact was driven to
Oklahoma where it was involved in an accident. 8 It may be true, as the Court suggests,
that each sincerely intended to limit its commercial impact to the limited territory, and
that each intended to accept the benefits and protection of the laws only of those States
within the territory. But obviously these were unrealistic hopes that cannot be treated as
an automatic constitutional shield. 9 [444 U.S. 286, 306]

An automobile simply is not a stationary item or one designed to be used in one place.
An automobile is intended to be moved around. Someone in the business of selling large
numbers of automobiles can hardly plead ignorance of their mobility or pretend that the
automobiles stay put after they are sold. It is not merely that a dealer in automobiles
foresees that they will move. Ante, at 295. The dealer actually intends that the
purchasers will use the automobiles to travel to distant States where the dealer does not
directly "do business." The sale of an automobile does purposefully inject the vehicle into
the stream of interstate commerce so that it can travel to distant States. See Kulko, 436
U.S., at 94 ; Hanson v. Denckla, 357 U.S. 235, 253 (1958).

This case is similar to Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971). There we
indicated, in the course of denying leave to file an original-jurisdiction case, that
corporations having no direct contact with Ohio could constitutionally be brought to trial
in Ohio because they dumped pollutants into streams outside Ohio's limits which
ultimately, through the action of the water, reached Lake Erie and affected Ohio. No
corporate acts, only their consequences, occurred in Ohio. The stream of commerce is
just as natural a force as a stream of water, and it was equally predictable that the cars
petitioners released would reach distant States. 10

The Court accepts that a State may exercise jurisdiction over a distributor which "serves"
that State "indirectly" by "deliver[ing] its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum State." Ante, at 297-
298. It is difficult to see why the Constitution should distinguish between a case
involving [444 U.S. 286, 307] goods which reach a distant State through a chain of
distribution and a case involving goods which reach the same State because a consumer,
using them as the dealer knew the customer would, took them there. 11 In each case the
seller purposefully injects the goods into the stream of commerce and those goods
predictably are used in the forum State. 12

Furthermore, an automobile seller derives substantial benefits from States other than its
own. A large part of the value of automobiles is the extensive, nationwide network of
highways. Significant portions of that network have been constructed by and are
maintained by the individual States, including Oklahoma. The States, through their
highway programs, contribute in a very direct and important way to the value of
petitioners' businesses. Additionally, a network of other related dealerships with their
service departments operates throughout the country under the protection of the laws of
the various States, including Oklahoma, and enhances the value of petitioners'
businesses by facilitating their customers' traveling.

Thus, the Court errs in its conclusion, ante, at 299 (emphasis added), that "petitioners
have no `contacts, ties, or relations'" with Oklahoma. There obviously are contacts, and,
given Oklahoma's connection to the litigation, the contacts are sufficiently significant to
make it fair and reasonable for the petitioners to submit to Oklahoma's jurisdiction.

III

It may be that affirmance of the judgments in these cases would approach the outer
limits of International Shoe's jurisdictional [444 U.S. 286, 308] principle. But that principle,
with its almost exclusive focus on the rights of defendants, may be outdated. As MR.
JUSTICE MARSHALL wrote in Shaffer v. Heitner, 433 U.S., at 212 : "`[T]raditional notions
of fair play and substantial justice' can be as readily offended by the perpetuation of
ancient forms that are no longer justified as by the adoption of new procedures. . . ."

International Shoe inherited its defendant focus from Pennoyer v. Neff, 95 U.S. 714
(1878), and represented the last major step this Court has taken in the long process of
liberalizing the doctrine of personal jurisdiction. Though its flexible approach represented
a major advance, the structure of our society has changed in many significant ways
since International Shoe was decided in 1945. Mr. Justice Black, writing for the Court in
McGee v. International Life Ins. Co., 355 U.S. 220, 222 (1957), recognized that "a trend is
clearly discernible toward expanding the permissible scope of state jurisdiction over
foreign corporations and other nonresidents." He explained the trend as follows:

"In part this is attributable to the fundamental transformation of our national

economy over the years. Today many commercial transactions touch two or more
States and may involve parties separated by the full continent. With this increasing
nationalization of commerce has come a great increase in the amount of business
conducted by mail across state lines. At the same time modern transportation and
communication have made it much less burdensome for a party sued to defend
himself in a State where he engages in economic activity." Id., at 222-223.
As the Court acknowledges, ante, at 292-293, both the nationalization of commerce and
the ease of transportation and communication have accelerated in the generation since
1957. 13 [444 U.S. 286, 309] The model of society on which the International Shoe Court
based its opinion is no longer accurate. Business people, no matter how local their
businesses, cannot assume that goods remain in the business' locality. Customers and
goods can be anywhere else in the country usually in a matter of hours and always in a
matter of a very few days.

In answering the question whether or not it is fair and reasonable to allow a particular
forum to hold a trial binding on a particular defendant, the interests of the forum State
and other parties loom large in today's world and surely are entitled to as much weight
as are the interests of the defendant. The "orderly administration of the laws" provides a
firm basis for according some protection to the interests of plaintiffs and States as well
as of defendants. 14 Certainly, I cannot see how a defendant's right to due process is
violated if the defendant suffers no inconvenience. See ante, at 294.
The conclusion I draw is that constitutional concepts of fairness no longer require the
extreme concern for defendants that was once necessary. Rather, as I wrote in dissent
from Shaffer v. Heitner, supra, at 220 (emphasis added), minimum [444 U.S. 286,
310] contacts must exist "among the parties, the contested transaction, and the forum
State." 15 The contacts between any two of these should not be determinate. "[W]hen a
suitor seeks to lodge a suit in a State with a substantial interest in seeing its own law
applied to the transaction in question, we could wisely act to minimize conflicts,
confusion, and uncertainty by adopting a liberal view of jurisdiction, unless
considerations of fairness or efficiency strongly point in the opposite direction." 16 433
U.S., at 225 -226. Mr. Justice Black, dissenting in Hanson v. Denckla, 357 U.S., at 258 -
259, expressed similar concerns by suggesting that a State should have jurisdiction over
a case growing out of a transaction significantly related to that State "unless litigation
there would impose such a heavy and disproportionate burden on a nonresident
defendant that it would offend what this Court has referred to as `traditional notions of
fair play and substantial justice.'" 17 Assuming [444 U.S. 286, 311] that a State gives a
nonresident defendant adequate notice and opportunity to defend, I do not think the Due
Process Clause is offended merely because the defendant has to board a plane to get to
the site of the trial.

The Court's opinion in No. 78-1078 suggests that the defendant ought to be subject to a
State's jurisdiction only if he has contacts with the State "such that he should reasonably
anticipate being haled into court there." 18 Ante, at 297. There is nothing unreasonable
or unfair, however, about recognizing commercial reality. Given the tremendous mobility
of goods and people, and the inability of businessmen to control where goods are taken
by customers (or retailers), I do not think that the defendant should be in complete
control of the geographical stretch of his amenability to suit. Jurisdiction is no longer
premised on the notion that nonresident defendants have somehow impliedly consented
to suit. People should understand that they are held responsible for the consequences of
their actions and that in our society most actions have consequences affecting many
States. When an action in fact causes injury in another State, the actor should be
prepared to answer for it there unless defending in that State would be unfair for some
reason other than that a state boundary must be crossed. 19

In effect the Court is allowing defendants to assert the sovereign [444 U.S. 286, 312] rights
of their home States. The expressed fear is that otherwise all limits on personal
jurisdiction would disappear. But the argument's premise is wrong. I would not abolish
limits on jurisdiction or strip state boundaries of all significance, see Hanson, supra, at
260 (Black, J., dissenting); I would still require the plaintiff to demonstrate sufficient
contacts among the parties, the forum, and the litigation to make the forum a
reasonable State in which to hold the trial. 20

I would also, however, strip the defendant of an unjustified veto power over certain very
appropriate fora - a power the defendant justifiably enjoyed long ago when
communication and travel over long distances were slow and unpredictable and when
notions of state sovereignty were impractical and exaggerated. But I repeat that that is
not today's world. If a plaintiff can show that his chosen forum State has a sufficient
interest in the litigation (or sufficient contacts with the defendant), then the defendant
who cannot show some real injury to a constitutionally protected interest, see O'Connor
v. Lee-Hy Paving Corp., 579 F.2d, at 201, should have no constitutional excuse not to
appear. 21

The plaintiffs in each of these cases brought suit in a forum with which they had
significant contacts and which had significant contacts with the litigation. I am not
convinced that the defendants would suffer any "heavy and disproportionate burden" in
defending the suits. Accordingly, I would hold [444 U.S. 286, 313] that the Constitution
should not shield the defendants from appearing and defending in the plaintiffs' chosen
fora.

- Rush vs. Sauchuk, 444 US 320 (1980)

United States Supreme Court
RUSH v. SAVCHUK(1980)

No. 78-952

Argued: October 03, 1979Decided: January 21, 1980

While a resident of Indiana, appellee was injured in an accident in Indiana while riding as
a passenger in a car driven by appellant Rush, also an Indiana resident. After moving to
Minnesota, appellee commenced this action against Rush in a Minnesota state court,
alleging negligence and seeking damages. As Rush had no contacts with Minnesota that
would support in personam jurisdiction, appellee attempted to obtain quasi in rem
jurisdiction by garnishing the contractual obligation of State Farm Mutual Automobile
Insurance Co. (State Farm) to defend and indemnify Rush in connection with such a suit.
State Farm, which does business in Minnesota, had insured the car, owned by Rush's
father, under a liability insurance policy issued in Indiana. Rush was personally served in
Indiana, and after State Farm's response to the garnishment summons asserted that it
owed the defendant nothing, appellee moved the trial court for permission to file a
supplemental complaint making the garnishee, State Farm, a party to the action. Rush
and State Farm moved to dismiss the complaint for lack of jurisdiction over the
defendant. The trial court denied the motion to dismiss and granted the motion for leave
to file the supplemental complaint. The Minnesota Supreme Court affirmed, ultimately
holding that the assertion of quasi in rem jurisdiction under the Minnesota garnishment
statute complied with the due process standards enunciated in Shaffer v. Heitner, 433
U.S. 186 .

Held:

A State may not constitutionally exercise quasi in rem jurisdiction over a defendant who
has no forum contacts by attaching the contractual obligation of an insurer licensed to
do business in the State to defend and indemnify him in connection with the suit. Pp.
327-333.

(a) A State may exercise jurisdiction over an absent defendant only if the
defendant has certain minimum contacts with the forum such that the
maintenance of the suit does not offend traditional notions of fair play and
substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 . In
determining whether a particular exercise of state-court jurisdiction is consistent
with due process, the inquiry must focus on "the relationship among the
defendant, the forum, and the litigation." Shaffer v. Heitner, supra, at 204 P. 327.
(b) Here, the only affiliating circumstance offered to show a relationship among
Rush, Minnesota, and this lawsuit is that Rush's insurance [444 U.S. 320,
321] company does business in the State. However, the fictional presence in
Minnesota of State Farm's policy obligation to defend and indemnify Rush - derived
from combining the legal fiction that assigns a situs to a debt, for garnishment
purposes, wherever the debtor is found with the legal fiction that a corporation is
"present," for jurisdictional purposes, wherever it does business - cannot be
deemed to give the State the power to determine Rush's liability for the out-of-
state accident. The mere presence of property in a State does not establish a
sufficient relationship between the owner of the property and the State to support
the exercise of jurisdiction over an unrelated cause of action, and it cannot be said
that the defendant engaged in any purposeful activity related to the forum that
would make the exercise of jurisdiction fair, just, or reasonable merely because his
insurer does business there. Nor does the policy provide significant contacts
between the litigation and the forum, for the policy obligations pertain only to the
conduct, not the substance, of the litigation. Pp. 327-330.
(c) Moreover, the requisite minimum contacts with the forum cannot be
established under an alternative approach attributing the insurer's forum contacts
to the defendant by treating the attachment procedure as the functional
equivalent of a direct action against the insurer, and considering the insured a
"nominal defendant" in order to obtain jurisdiction over the insurer. The State's
 ability to exert its power over the "nominal defendant" is analytically prerequisite
to the insurer's entry into the case as a garnishee, and if the Constitution forbids
the assertion of jurisdiction over the insured based on the policy, then there is no
conceptual basis for bringing the "garnishee" into the action. Nor may the
Minnesota court attribute State Farm's contacts to Rush by considering the
"defending parties" together and aggregating their forum contacts in determining
whether it has jurisdiction. The parties' relationships with each other may be
significant in evaluating their ties to the forum, but the requirements of
International Shoe must be met as to each defendant over whom a state court
exercises jurisdiction. Pp. 330-332.
272 N. W. 2d 888, reversed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART,
WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., ante, p. 299, and
STEVENS, J., post, p. 333, filed dissenting opinions.

O. C. Adamson II argued the cause for appellants. With him on the briefs was James F.
Roegge. [444 U.S. 320, 322]

Edward H. Borkon argued the cause and filed a brief for appellee.

MR. JUSTICE MARSHALL delivered the opinion of the Court.

This appeal presents the question whether a State may constitutionally exercise quasi in
rem jurisdiction over a defendant who has no forum contacts by attaching the
contractual obligation of an insurer licensed to do business in the State to defend and
indemnify him in connection with the suit.

On January 13, 1972, two Indiana residents were involved in a single-car accident in
Elkhart, Ind. Appellee Savchuk, who was a passenger in the car driven by appellant Rush,
was injured. The car, owned by Rush's father, was insured by appellant State Farm
Mutual Automobile Insurance Co. (State Farm) under a liability insurance policy issued in
Indiana. Indiana's guest statute would have barred a claim by Savchuk. Ind. Code 9-3-3-1
(1976).

Savchuk moved with his parents to Minnesota in June 1973. 1 On May 28, 1974, he
commenced an action against Rush in the Minnesota state courts. 2 As Rush had no
contacts with Minnesota that would support in personam jurisdiction, Savchuk attempted
to obtain quasi in rem jurisdiction by garnishing State Farm's obligation under the
insurance policy to defend and indemnify Rush in connection with such a suit. 3 State
Farm does business in Minnesota. 4 Rush was [444 U.S. 320, 323] personally served in
Indiana. The complaint alleged negligence and sought $125,000 in damages. 5

As provided by the state garnishment statute, Savchuk moved the trial court for
permission to file a supplemental complaint making the garnishee, State Farm, a party to
the action after State Farm's response to the garnishment summons asserted that it
owed the defendant nothing. 6 Rush and State [444 U.S. 320, 324] Farm moved to dismiss
the complaint for lack of jurisdiction over the defendant. 7 The trial court denied the
motion to dismiss and granted the motion for leave to file the supplemental complaint.

On appeal, the Minnesota Supreme Court affirmed the trial court's decision. 311 Minn.
480, 245 N. W. 2d 624 (1976) (Savchuk I). It held, first, that the obligation of an
insurance company to defend and indemnify a nonresident insured under an automobile
liability insurance policy is a garnishable res in Minnesota for the purpose of obtaining
quasi in rem jurisdiction when the incident giving rise to the action occurs outside
Minnesota but the plaintiff is a Minnesota resident when the suit is filed. Second, the
court held that the assertion of jurisdiction over Rush was constitutional because he had
notice of the suit and an opportunity to defend, his liability was limited to the amount of
the policy, and the garnishment procedure may be used only by Minnesota residents.
The court expressly recognized that Rush had engaged in no voluntary activity that
would justify the exercise of in personam jurisdiction. The court found, however, that
considerations of fairness supported the exercise of quasi in rem jurisdiction because in
accident litigation the insurer controls the defense of the case, State Farm does business
in and is regulated by the State, and the State has an interest in protecting its residents
and providing them with a forum in which to litigate their claims.

Rush appealed to this Court. We vacated the judgment and remanded the cause for
further consideration in light of [444 U.S. 320, 325] Shaffer v. Heitner, 433 U.S. 186 (1977).
433 U.S. 902 (1977).

On remand, the Minnesota Supreme Court held that the assertion of quasi in rem
jurisdiction through garnishment of an insurer's obligation to an insured complied with
the due process standards enunciated in Shaffer. 272 N. W. 2d 888 (1978) (Savchuk II).
The court found that the garnishment statute differed from the Delaware stock
sequestration procedure held unconstitutional in Shaffer because the garnished property
was intimately related to the litigation and the garnishment procedure paralleled the
asserted state interest in "facilitating recoveries for resident plaintiffs." 272 N. W. 2d, at
891. 8 This appeal followed.

II

The Minnesota Supreme Court held that the Minnesota garnishment statute embodies
the rule stated in Seider v. Roth, 17 N. Y. 2d 111, 216 N. E. 2d 312 (1966), that the
contractual obligation of an insurance company to its insured under a liability insurance
policy is a debt subject to attachment under state law if the insurer does business in the
State. 9 Seider jurisdiction was upheld against a due process challenge in Simpson v.
Loehmann, 21 N. Y. 2d 305, 234 N. E. 2d 669 (1967), reargument denied, 21 N. Y. 2d
990, 238 N. E. 2d 319 (1968). The New York court relied on Harris v. Balk, 198 U.S. 215
(1905), in holding that the presence of the debt [444 U.S. 320, 326] in the State was
sufficient to permit quasi in rem jurisdiction over the absent defendant. The court also
concluded that the exercise of jurisdiction was permissible under the Due Process Clause
because, "[v]iewed realistically, the insurer in a case such as the present is in full control
of the litigation" and "where the plaintiff is a resident of the forum state and the insurer
is present in and regulated by it, the State has a substantial and continuing relation with
the controversy." Simpson v. Loehmann, supra, at 311, 234 N. E. 2d, at 672.

The United States Court of Appeals for the Second Circuit gave its approval to Seider in
Minichiello v. Rosenberg, 410 F.2d 106, adhered to en banc, 410 F.2d 117 (1968), cert.
denied, 396 U.S. 844 (1969), although on a slightly different rationale. Judge Friendly
construed Seider as "in effect a judicially created direct action statute. The insurer doing
business in New York is considered the real party in interest and the nonresident insured
is viewed simply as a conduit, who has to be named as a defendant in order to provide a
conceptual basis for getting at the insurer." 410 F.2d, at 109; see Donawitz v. Danek, 42
N. Y. 2d 138, 142, 366 N. E. 2d 253, 255 (1977). The court held that New York could
constitutionally enact a direct action statute, and that the restriction of liability to the
amount of the policy coverage made the policyholder's personal stake in the litigation so
slight that the exercise of jurisdiction did not offend due process.

New York has continued to adhere to Seider. 10 New Hampshire has followed Seider if
the defendant resides in a Seider jurisdiction, 11 but not in other cases. 12 Minnesota is
the only [444 U.S. 320, 327] other State that has adopted Seider-type jurisdiction. 13 The
Second Circuit recently reaffirmed its conclusion that Seider does not violate due process
after reconsidering the doctrine in light of Shaffer v. Heitner. O'Conner v. Lee-Hy Paving
Corp., 579 F.2d 194, cert. denied, 439 U.S. 1034 (1978).

III

In Shaffer v. Heitner we held that "all assertions of state-court jurisdiction must be

evaluated according to the standards set forth in International Shoe and its progeny."
433 U.S., at 212 . That is, a State may exercise jurisdiction over an absent defendant
only if the defendant has "certain minimum contacts with [the forum] such that the
maintenance of the suit does not offend `traditional notions of fair play and substantial
justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). In determining
whether a particular exercise of state-court jurisdiction is consistent with due process,
the inquiry must focus on "the relationship among the defendant, the forum, and the
litigation." Shaffer v. Heitner, supra, at 204.

It is conceded that Rush has never had any contacts with Minnesota, and that the auto
accident that is the subject of [444 U.S. 320, 328] this action occurred in Indiana and also
had no connection to Minnesota. The only affiliating circumstance offered to show a
relationship among Rush, Minnesota, and this lawsuit is that Rush's insurance company
does business in the State. Seider constructed an ingenious jurisdictional theory to
permit a State to command a defendant to appear in its courts on the basis of this factor
alone. State Farm's contractual obligation to defend and indemnify Rush in connection
with liability claims is treated as a debt owed by State Farm to Rush. The legal fiction
that assigns a situs to a debt, for garnishment purposes, wherever the debtor is found is
combined with the legal fiction that a corporation is "present," for jurisdictional purposes,
wherever it does business to yield the conclusion that the obligation to defend and
indemnify is located in the forum for purposes of the garnishment statute. The fictional
presence of the policy obligation is deemed to give the State the power to determine the
policy-holder's liability for the out-of-state accident. 14

We held in Shaffer that the mere presence of property in a State does not establish a
sufficient relationship between the owner of the property and the State to support the
exercise of jurisdiction over an unrelated cause of action. The ownership of property in
the State is a contact between the defendant and the forum, and it may suggest the
presence of other ties. 433 U.S., at 209 . Jurisdiction is lacking, however, unless there are
sufficient contacts to satisfy the fairness standard of International Shoe.

Here, the fact that the defendant's insurer does business in the forum State suggests no
further contacts between the defendant and the forum, and the record supplies no
evidence of any. State Farm's decision to do business in Minnesota [444 U.S. 320, 329] was
completely adventitious as far as Rush was concerned. He had no control over that
decision, and it is unlikely that he would have expected that by buying insurance in
Indiana he had subjected himself to suit in any State to which a potential future plaintiff
might decide to move. In short, it cannot be said that the defendant engaged in any
purposeful activity related to the forum that would make the exercise of jurisdiction fair,
just, or reasonable, see Kulko v. California Superior Court, 436 U.S. 84, 93 -94 (1978);
Hanson v. Denckla, 357 U.S. 235, 253 (1958), merely because his insurer does business
there.

Nor are there significant contacts between the litigation and the forum. The Minnesota
Supreme Court was of the view that the insurance policy was so important to the
litigation that it provided contacts sufficient to satisfy due process. 15 The insurance
policy is not the subject matter of the case, however, nor is it related to the operative
facts of the negligence action. The contractual arrangements between the defendant and
the insurer pertain only to the conduct, not the substance, of the litigation, and
accordingly do not affect the court's jurisdiction unless they demonstrate ties between
the defendant and the forum.

In fact, the fictitious presence of the insurer's obligation in Minnesota does not, without
more, provide a basis for concluding that there is any contact in the International Shoe
sense [444 U.S. 320, 330] between Minnesota and the insured. To say that "a debt follows
the debtor" is simply to say that intangible property has no actual situs, and a debt may
be sued on wherever there is jurisdiction over the debtor. State Farm is "found," in the
sense of doing business, in all 50 States and the District of Columbia. Under appellee's
theory, the "debt" owed to Rush would be "present" in each of those jurisdictions
simultaneously. It is apparent that such a "contact" can have no jurisdictional
significance.
An alternative approach for finding minimum contacts in Seider-type cases, referred to
with approval by the Minnesota Supreme Court, 16 is to attribute the insurer's forum
contacts to the defendant by treating the attachment procedure as the functional
equivalent of a direct action against the insurer. This approach views Seider jurisdiction
as fair both to the insurer, whose forum contacts would support in personam jurisdiction
even for an unrelated cause of action, and to the "nominal defendant." Because liability
is limited to the policy amount, the defendant incurs no personal liability, 17 and the
judgment is satisfied from the policy proceeds which are not available to the insured for
any purpose other than paying accident claims, the insured is said to have such a slight
stake in the litigation as a practical matter that it is not unfair to make him a "nominal
defendant" in order to obtain jurisdiction over the insurance company.

Seider actions are not equivalent to direct actions, however. 18 The State's ability to
exert its power over the "nominal [444 U.S. 320, 331] defendant" is analytically
prerequisite to the insurer's entry into the case as a garnishee. If the Constitution forbids
the assertion of jurisdiction over the insured based on the policy, then there is no
conceptual basis for bringing the "garnishee" into the action. Because the party with
forum contacts can only be reached through the out-of-state party, the question of
jurisdiction over the nonresident cannot be ignored. 19 Moreover, the assumption that
the defendant has no real stake in the litigation is far from self-evident. 20

The Minnesota court also attempted to attribute State Farm's contacts to Rush by
considering the "defending parties" together and aggregating their forum contacts in
determining whether it had jurisdiction. 21 The result was the [444 U.S. 320, 332] assertion
of jurisdiction over Rush based solely on the activities of State Farm. Such a result is
plainly unconstitutional. Naturally, the parties' relationships with each other may be
significant in evaluating their ties to the forum. The requirements of International Shoe,
however, must be met as to each defendant over whom a state court exercises
jurisdiction.

The justifications offered in support of Seider jurisdiction share a common characteristic:

they shift the focus of the inquiry from the relationship among the defendant, the forum,
and the litigation to that among the plaintiff, the forum, the insurer, and the litigation.
The insurer's contacts with the forum are attributed to the defendant because the policy
was taken out in anticipation of such litigation. The State's interests in providing a forum
for its residents and in regulating the activities of insurance companies are substituted
for its contacts with the defendant and the cause of action. This subtle shift in focus from
the defendant to the plaintiff is most evident in the decisions limiting Seider jurisdiction
to actions by forum residents on the ground that permitting nonresidents to avail
themselves of the procedure would be unconstitutional. 22 In other words, the plaintiff's
contacts with the forum are decisive in determining whether the defendant's due process
rights are violated.

Such an approach is forbidden by International Shoe and its progeny. If a defendant has
certain judicially cognizable ties with a State, a variety of factors relating to the
particular cause of action may be relevant to the determination whether the exercise of
jurisdiction would comport with "traditional notions of fair play and substantial justice."
See McGee v. International Life Ins. Co., 355 U.S. 220 (1957); cf. Kulko v. California
Superior Court, 436 U.S., at 98 -101. Here, however, the defendant has no contacts with
the forum, and the [444 U.S. 320, 333] Due Process Clause "does not contemplate that a
state may make binding a judgment . . . against an individual or corporate defendant
with which the state has no contacts, ties, or relations." International Shoe Co. v.
Washington, 326 U.S., at 319 . The judgment of the Minnesota Supreme Court is,
therefore,

Reversed.
[For dissenting opinion of MR. JUSTICE BRENNAN, see ante, p. 299.]

- Compuserve Inc. vs. Richard Patterson, No. 95-3452, Decided: July 22, 1996

United States Court of Appeals,Sixth Circuit.

COMPUSERVE, INCORPORATED, Plaintiff-Appellant, v. Richard S. PATTERSON,
individually, and Flashpoint Development, Defendants-Appellees.

No. 95-3452.

Decided: July 22, 1996

Before BROWN, KENNEDY, and WELLFORD, Circuit Judges.

Stephen D. Jones (argued and briefed), Roetzel & Andress, Columbus, OH and
Kent D. Stuckey, Columbus, OH, for plaintiff-appellant. Richard S. Patterson,
Houston, TX, for defendant-appellee.

In a case that requires us to consider the scope of the federal courts' jurisdictional
powers in a new context, a computer network giant, CompuServe, appeals the dismissal,
for lack of personal jurisdiction, of its complaint in which it sought a declaratory
judgment that it had not infringed on the defendants' common law copyrights or
otherwise engaged in unfair competition. The district court held that the electronic
links between the defendant Patterson, who is a Texan,1 and Ohio, where CompuServe is
headquartered, were “too tenuous to support the exercise of personal jurisdiction.” The
district court also denied CompuServe's motion for reconsideration. Because we
believe that CompuServe made a prima facie showing that the defendant's contacts with
Ohio were sufficient to support the exercise of personal jurisdiction, we REVERSE the
district court's dismissal and REMAND this case for further proceedings consistent with
this opinion.

I. BACKGROUND

CompuServe is a computer information service headquartered in Columbus, Ohio. It

contracts with individual subscribers, such as the defendant, to provide, inter alia, access
to computing and information services via the Internet, and it is the second largest such
provider currently operating on the so-called “information super highway.” 2 A
CompuServe subscriber may use the service to gain electronic access to more than 1700
information services.3

CompuServe also operates as an electronic conduit to provide its subscribers computer

software products, which may originate either from CompuServe itself or from other
parties. Computer software generated and distributed in this manner is, according to
CompuServe, often referred to as “shareware.” Shareware makes money only through
the voluntary compliance of an “end user,” that is, another CompuServe subscriber who
may or may not pay the creator's suggested licensing fee if she uses the software
beyond a specified trial period. The “end user” pays that fee directly to CompuServe in
Ohio, and CompuServe takes a 15% fee for its trouble before remitting the balance to
the shareware's creator.4

Defendant, Richard Patterson, is an attorney and a resident of Houston, Texas who

claims never to have visited Ohio. Patterson also does business as FlashPoint
Development. He subscribed to CompuServe, and he also placed items of “shareware”
on the CompuServe system for others to use and purchase. When he became a
shareware “provider,” Patterson entered into a “Shareware Registration Agreement”
(“SRA”) with CompuServe. Under the SRA, CompuServe provides its subscribers with
access to the software, or shareware, that Patterson creates. The SRA purports to
create an independent contractor relationship between Patterson and CompuServe,
whereby Patterson may place software of his creation on CompuServe's system. The
SRA does not mention Patterson's software by name; in fact, it leaves the content and
identification of that software to Patterson.
The SRA incorporates by reference two other documents: the CompuServe Service
Agreement (“Service Agreement”) and the Rules of Operation, both of which are
published on the CompuServe Information Service. Both the SRA and the Service
Agreement expressly provide that they are entered into in Ohio, and the Service
Agreement further provides that it is to “be governed by and construed in accordance
with” Ohio law. These documents appear to be standardized and entirely the product of
CompuServe. It bears noting, however, that the SRA asks a new shareware “provider”
like Patterson to type “AGREE” at various points in the document, “[i]n recognition of
your on line agreement to all the above terms and conditions.” Thus, Patterson's
assent to the SRA was first manifested at his own computer in Texas, then transmitted to
the CompuServe computer system in Ohio.

From 1991 through 1994, Patterson electronically transmitted 32 master software files to
CompuServe. These files were stored in CompuServe's system in Ohio, and they were
displayed in different services for CompuServe subscribers, who could “download” them
into their own computers and, if they chose to do so, pay for them. Patterson also
advertised his software on the CompuServe system, and he indicated a price term in at
least one of his advertisements. CompuServe asserts that Patterson marketed his
software exclusively on its system. Patterson, for his part, stated that he has sold less
than $650 worth of his software to only 12 Ohio residents via CompuServe.

Patterson's software product was, apparently, a program designed to help people

navigate their way around the larger Internet network. CompuServe began to market a
similar product, however, with markings and names that Patterson took to be too similar
to his own. Thus, in December of 1993, Patterson notified CompuServe (appropriately
via an electronic mail or “E-mail” message 5 ) that the terms “WinNAV,” “Windows
Navigator,” and “FlashPoint Windows Navigator” were common law trademarks which he
and his company owned. Patterson stated that CompuServe's marketing of its product
infringed these trademarks, and otherwise constituted deceptive trade practices.
CompuServe changed the name of its program, but Patterson continued to complain.
CompuServe asserts that, if Patterson's allegations of trademark infringement are
correct, they threaten CompuServe's software sales revenue with a loss of approximately
$10.8 million.

After Patterson demanded at least $100,000 to settle his potential claims, CompuServe
filed this declaratory judgment action in the federal district court for the Southern
District of Ohio, relying on the court's diversity subject matter jurisdiction. CompuServe
sought, among other things, a declaration that it had not infringed any common law
trademarks of Patterson or FlashPoint Development, and that it was not otherwise guilty
of unfair or deceptive trade practices. Patterson responded pro se with a consolidated
motion to dismiss on several grounds, including lack of personal jurisdiction. Patterson
also submitted a supporting affidavit, in which he denied many jurisdictional facts,
including his having ever visited Ohio. CompuServe then filed a memorandum in
opposition to Patterson's consolidated motion, along with several supporting exhibits.

The district court, considering only these pleadings and papers, granted Patterson's
motion to dismiss for lack of personal jurisdiction in a thorough and thoughtful opinion. 6
At various points in its consideration of the case, however, the district court expressly
relied on Patterson's affidavit. Joint Appendix at 97, 98, 99. The court below then
denied CompuServe's motion for a rehearing, which it construed as a motion for
reconsideration under Federal Rule of Civil Procedure 59(e). CompuServe timely
appealed. Patterson, however, filed no appellate brief, and he did not appear at oral
argument.

II. ANALYSIS

A. Standards of Review.

We conduct a plenary review of personal jurisdiction issues. E.g., Reynolds v.

International Amateur Athletic Fed'n, 23 F.3d 1110, 1117 (6th Cir.) (citing Conti v.
Pneumatic Prods., 977 F.2d 978, 985 (6th Cir.1992)), cert. denied, 513 U.S. 962, 115
S.Ct. 423, 130 L.Ed.2d 338 (1994). CompuServe, as the party seeking assertion of in
personam jurisdiction, bears the burden of showing that such jurisdiction exists. E.g.,
Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991). When, however, a district
court rules on a jurisdictional motion to dismiss made pursuant to Federal Rule of Civil
Procedure 12(b)(2) without conducting an evidentiary hearing, the court must consider
the pleadings and affidavits in a light most favorable to the plaintiff-here, CompuServe.
Id. at 1458-59. To defeat such a motion, a party in CompuServe's position need only
make a prima facie showing of jurisdiction. Id.

Furthermore, a “court disposing of a 12(b)(2) motion does not weigh the controverting
assertions of the party seeking dismissal,” Patterson in this case, because we want “to
prevent non-resident defendants from regularly avoiding personal jurisdiction simply by
filing an affidavit denying all jurisdictional facts.” Id. at 1459 (emphasis added).
Dismissal in this procedural posture is proper only if all the specific facts which the
plaintiff (CompuServe) alleges collectively fail to state a prima facie case for jurisdiction.
Id.

B. Personal Jurisdiction.

This case presents a novel question of first impression: Did CompuServe make a prima
facie showing that Patterson's contacts with Ohio, which have been almost entirely
electronic in nature, are sufficient, under the Due Process Clause, to support the district
court's exercise of personal jurisdiction over him?

The Supreme Court has noted, on more than one occasion, the confluence of the
“increasing nationalization of commerce” and “modern transportation and
communication,” and the resulting relaxation of the limits that the Due Process Clause
imposes on courts' jurisdiction. E.g., World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 293, 100 S.Ct. 559, 565, 62 L.Ed.2d 490 (1980) (quoting McGee v. International
Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957)). Simply
stated, there is less perceived need today for the federal constitution to protect
defendants from “inconvenient litigation,” because all but the most remote forums are
easily accessible for the pursuit of both business and litigation. Id. The Court has also,
however, reminded us that the due process rights of a defendant should be the courts'
primary concern where personal jurisdiction is at issue. Insurance Corp. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 n. 10, 102 S.Ct. 2099, 2104 n. 10, 72 L.Ed.2d
492 (1982).

The Internet represents perhaps the latest and greatest manifestation of these
historical, globe-shrinking trends. It enables anyone with the right equipment and
knowledge-that is, people like Patterson-to operate an international business cheaply,
and from a desktop. That business operator, however, remains entitled to the
protection of the Due Process Clause, which mandates that potential defendants be able
“to structure their primary conduct with some minimum assurance as to where the
conduct will and will not render them liable to suit.” World-Wide Volkswagen, 444 U.S.
at 297, 100 S.Ct. at 567. Thus, this case presents a situation where we must reconsider
the scope of our jurisdictional reach.

To determine whether personal jurisdiction exists over a defendant, federal courts

apply the law of the forum state, subject to the limits of the Due Process Clause of the
Fourteenth Amendment. Reynolds, 23 F.3d at 1115. “[T]he defendant must be
amenable to suit under the forum state's long-arm statute and the due process
requirements of the Constitution must be met.” Id. (citing In-Flight Devices Corp. v. Van
Dusen Air, Inc., 466 F.2d 220, 224 (6th Cir.1972)).

The Ohio long-arm statute allows an Ohio court to exercise personal jurisdiction over
nonresidents of Ohio on claims arising from, inter alia, the nonresident's transacting any
business in Ohio. Ohio Rev. Code Ann. § 2307.382(A) (Anderson 1995). It is settled
Ohio law, moreover, that the “transacting business” clause of that statute was meant to
extend to the federal constitutional limits of due process, and that as a result Ohio
personal jurisdiction cases require an examination of those limits. Reynolds, 23 F.3d at
1116 (quoting Creech v. Roberts, 908 F.2d 75, 79 (6th Cir.1990), cert. denied, 499 U.S.
975, 111 S.Ct. 1619, 113 L.Ed.2d 717 (1991)); R.L. Lipton Distrib. Co. v. Dribeck
Importers, Inc., 811 F.2d 967, 969 (6th Cir.1987).

Further, personal jurisdiction may be either general or specific in nature, depending on

the nature of the contacts in a given case. E.g., Reynolds, 23 F.3d at 1116 (citing Third
Nat'l Bank v. WEDGE Group Inc., 882 F.2d 1087, 1089 (6th Cir.1989), cert. denied, 493
U.S. 1058, 110 S.Ct. 870, 107 L.Ed.2d 953 (1990)). In the instant case, because
CompuServe bases its action on Patterson's act of sending his computer software to Ohio
for sale on its service, CompuServe seeks to establish such specific personal jurisdiction
over Patterson. Id.

As always in this context, the crucial federal constitutional inquiry is whether, given
the facts of the case, the nonresident defendant has sufficient contacts with the forum
state that the district court's exercise of jurisdiction would comport with “traditional
notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326
U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S.
457, 463, 61 S.Ct. 339, 342-43, 85 L.Ed. 278 (1940)); Reynolds, 23 F.3d at 1116;
Theunissen, 935 F.2d at 1459. This court has repeatedly employed three criteria to
make this determination:

First, the defendant must purposefully avail himself of the privilege of acting in the forum
state or causing a consequence in the forum state. Second, the cause of action must
arise from the defendant's activities there. Finally, the acts of the defendant or
consequences caused by the defendant must have a substantial enough connection with
the forum to make the exercise of jurisdiction over the defendant reasonable.

Reynolds, 23 F.3d at 1116 (quoting In-Flight Devices, 466 F.2d at 226); see also
Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir.1968) (adopting the
above test for “determining the present outerlimits of in personam jurisdiction based on
a single act”).

We conclude that Patterson has knowingly made an effort-and, in fact, purposefully

contracted-to market a product in other states, with Ohio-based CompuServe operating,
in effect, as his distribution center. Thus, it is reasonable to subject Patterson to suit in
Ohio, the state which is home to the computer network service he chose to employ.

To support this conclusion, we will address each of the above three criteria seriatim,
bearing in mind that (1) CompuServe need only make a prima facie case of personal
jurisdiction, and (2) we cannot weigh Patterson's affidavit in the analysis, given that the
district court addressed his motion to dismiss without holding an evidentiary hearing. 7
Theunissen, 935 F.2d at 1459.

1. The “purposeful availment” requirement.

This court has stated that the question of whether a defendant has purposefully
availed itself of the privilege of doing business in the forum state is “the sine qua non for
in personam jurisdiction.” Mohasco Indus., 401 F.2d at 381-82. The “purposeful
availment” requirement is satisfied when the defendant's contacts with the forum state
“proximately result from actions by the defendant himself that create a ‘substantial
connection’ with the forum State,” and when the defendant's conduct and connection
with the forum are such that he “should reasonably anticipate being haled into court
there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 2183-84,
85 L.Ed.2d 528 (1985) (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at
567); Reynolds, 23 F.3d at 1116. Courts require purposeful availment to insure that
“random,” “fortuitous,” or “attenuated” contacts do not cause a defendant to be haled
into a jurisdiction. Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183-84 (citing
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d
790 (1984)).
 This requirement does not, however, mean that a defendant must be physically
present in the forum state. As the Burger King Corp. Court stated, “So long as a
commercial actor's efforts are ‘purposefully directed’ toward residents of another State,
we have consistently rejected the notion that an absence of physical contacts can defeat
personal jurisdiction there.” Id. at 476, 105 S.Ct. at 2184. Further, as this court noted
long ago,

Physical presence of an agent is not necessary ․ for the transaction of business in a

state. The soliciting of insurance by mail, the transmission of radio broadcasts into a
state, and the sending of magazines and newspapers into a state to be sold there by
independent contractors are all accomplished without the physical presence of an agent;
yet all have been held to constitute the transaction of business in a state.

Mohasco Indus., 401 F.2d at 382 (footnotes omitted).

There is no question that Patterson himself took actions that created a connection with
Ohio in the instant case. He subscribed to CompuServe, and then he entered into the
Shareware Registration Agreement when he loaded his software onto the CompuServe
system for others to use and, perhaps, purchase. Once Patterson had done those two
things, he was on notice that he had made contracts, to be governed by Ohio law, with
an Ohio-based company. Then, he repeatedly sent his computer software, via
electronic links, to the CompuServe system in Ohio, and he advertised that software on
the CompuServe system. Moreover, he initiated the events that led to the filing of this
suit by making demands of CompuServe via electronic and regular mail messages.

The real question is whether these connections with Ohio are “substantial” enough that
Patterson should reasonably have anticipated being haled into an Ohio court. The
district court did not think so. It looked to “cases involving interstate business
negotiations and relationships” and held that the relationship between CompuServe and
Patterson, because it was marked by a “minimal course of dealing,” was insufficient to
satisfy the purposeful availment test. Compare Reynolds, 23 F.3d at 1118-21 (holding
that the contacts between an England-based association and an Ohio plaintiff in a
contract case were “superficial” where, although mail and telephone communications
had taken place, the parties had engaged in no prior negotiations and expected no
future consequences) and Health Communications, Inc. v. Mariner Corp., 860 F.2d 460,
463-65 (D.C.Cir.1988) (finding no jurisdiction over a nonresident purchaser who had
bought services from a corporation in the forum state) with Burger King Corp., 471 U.S.
at 479-82, 105 S.Ct. at 2185-87 (finding significant the defendant's reaching beyond
Michigan to negotiate with a Florida corporation for the purchase of a long-term
franchise). The district court deemed this case closer to Reynolds and Health
Communications than to Burger King Corp., and thus it found no purposeful availment on
the part of Patterson.

We disagree. The contract cases upon which the district court relied are both
distinguishable in important ways. Patterson, unlike the nonresident defendant in
Reynolds, entered into a written contract with CompuServe which provided for the
application of Ohio law, and he then purposefully perpetuated the relationship with
CompuServe via repeated communications with its system in Ohio. And, unlike the
nonresident defendant in Health Communications, Patterson was far more than a
purchaser of services; he was a third-party provider of software who used CompuServe,
which is located in Columbus, to market his wares in Ohio and elsewhere.

In fact, it is Patterson's relationship with CompuServe as a software provider and

marketer that is crucial to this case. The district court's analysis misses the mark
because it disregards the most salient facts of that relationship: that Patterson chose to
transmit his software from Texas to CompuServe's system in Ohio, that myriad others
gained access to Patterson's software via that system, and that Patterson advertised and
sold his product through that system. Though all this happened with a distinct paucity
of tangible, physical evidence, there can be no doubt that Patterson purposefully
transacted business in Ohio. See Plus System, Inc. v. New England Network, Inc., 804
F.Supp. 111, 118-19 (D.Colo.1992) (finding personal jurisdiction over a nonresident
computer network defendant because, inter alia, that defendant benefitted from the
intangible computer services provided by the plaintiff's own computer network system);
cf. United States v. Thomas, 74 F.3d 701, 706-07 (6th Cir.1996) (upholding a conviction
under federal obscenity laws where the defendants transmitted computer-generated
images across state lines, despite the defendants' argument that the images were
intangible), petition for cert. filed, 64 U.S.L.W. 3839 (U.S. June 10, 1996) (No. 95-1992).

Moreover, this was a relationship intended to be ongoing in nature; it was not a “one-
shot affair.” Mohasco Indus., 401 F.2d at 385. Patterson sent software to CompuServe
repeatedly for some three years, and the record indicates that he intended to continue
marketing his software on CompuServe. As this court has often stated,

[B]usiness is transacted in a state when obligations created by the defendant or business

operations set in motion by the defendant have a realistic impact on the commerce of
that state; and the defendant has purposefully availed himself of the opportunity of
acting there if he should have reasonably foreseen that the transaction would have
consequences in that state.

Id. at 382-83 (footnote omitted). Patterson deliberately set in motion an ongoing

marketing relationship with CompuServe, and he should have reasonably foreseen that
doing so would have consequences in Ohio.

Admittedly, merely entering into a contract with CompuServe would not, without more,
establish that Patterson had minimum contacts with Ohio. Burger King Corp., 471 U.S.
at 478, 105 S.Ct. at 2185. By the same token, Patterson's injection of his software
product into the stream of commerce, without more, would be at best a dubious ground
for jurisdiction. Compare Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112,
107 S.Ct. 1026, 1032, 94 L.Ed.2d 92 (1987) (O'Connor, J.) (plurality op.) (“The
placement of a product into the stream of commerce, without more, is not an act of the
defendant purposefully directed toward the forum State.”) with id. at 117, 107 S.Ct. at
1034-35 (Brennan, J., concurring in part) (rejecting the plurality's position on the stream
of commerce theory). Because Patterson deliberately did both of those things,
however, and because of the other factors that we discuss herein, we believe that ample
contacts exist to support the assertion of jurisdiction in this case, and certainly an
assertion of jurisdiction by the state where the computer network service in question is
headquartered.

We find support for our conclusion in the Ohio Supreme Court case of U.S. Sprint
Communications Co. Limited Partnership v. Mr. K's Foods, Inc., 68 Ohio St.3d 181, 624
N.E.2d 1048, 1052-54 (1994). In that case, the court held that a foreign corporation
“transacted business” in Ohio, and thus was subject to personal jurisdiction, where it
frequently made long-distance telephone calls to Ohio to sell its products, had
distribution facilities in Ohio for its products, and shipped goods to Ohio for ultimate sale.
Similarly, Patterson frequently contacted Ohio to sell his computer software over
CompuServe's Ohio-based system. Patterson repeatedly sent his “goods” to
CompuServe in Ohio for their ultimate sale. CompuServe, in effect, acted as Patterson's
distributor, albeit electronically and not physically.

Further, we must reject the district court's reliance on the de minimis amount of
software sales which Patterson claims he enjoyed in Ohio. As this court recently stated,
“It is the ‘quality’ of [the] contacts,” and not their number or status, that determines
whether they amount to purposeful availment. Reynolds, 23 F.3d at 1119 (emphasis
added) (quoting LAK, Inc. v. Deer Creek Enters., 885 F.2d 1293, 1301 (6th Cir.1989),
cert. denied, 494 U.S. 1056, 110 S.Ct. 1525, 108 L.Ed.2d 764 (1990)). Patterson's
contacts with CompuServe here were deliberate and repeated, even if they yielded little
revenue from Ohio itself.

Moreover, we should not focus solely on the sales that Patterson made in Ohio, because
that ignores the sales Patterson may have made through CompuServe to others
elsewhere. Patterson sought to make those sales from Texas by way of CompuServe's
system in Ohio, and the sales then involved the passage of funds through Ohio to
Patterson in Texas. This case is thus analogous to the Mohasco Industries case, 401
F.2d at 383-86, where this court held that jurisdiction was proper where a nonresident
defendant both (a) entered a licensing contract for the plaintiff to manufacture and sell
equipment in the forum state, and (b) contemplated the ongoing marketing of that
equipment in the forum state and elsewhere.

We also find instructive the Supreme Court case of McGee v. International Life Insurance
Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), which held that due process did
not prohibit California from asserting jurisdiction over a Texas insurance company based
upon its issuance of a single insurance contract in California and the receipt of premium
payments mailed from California. The McGee Court reasoned that (1) the company had
consciously sought the contract with the California insured, and (2) “the suit was based
on a contract which had substantial connection with that State.” Id. at 223, 78 S.Ct. at
201.

Similarly, in the instant case, Patterson consciously reached out from Texas to Ohio to
subscribe to CompuServe, and to use its service to market his computer software on the
Internet. He entered into a contract which expressly stated that it would be governed
by and construed in light of Ohio law. Ohio has written and interpreted its long-arm
statute, and particularly its “transacting business” subsection, with the intent of reaching
as far as the Due Process Clause will allow, and it certainly has an interest “in providing
effective means of redress for its residents.” Id. As the Burger King Corp. Court
noted, the purposeful direction of one's activities toward a state has always been
significant in personal jurisdiction cases, particularly where individuals purposefully
derive benefits from interstate activities. Burger King Corp., 471 U.S. at 472-73, 105
S.Ct. at 2181-83. Moreover, the Court continued, it could be unfair to allow individuals
who purposefully engage in interstate activities for profit to escape having to account in
other states for the proximate consequences of those activities. Id. (citing Kulko v.
Superior Court, 436 U.S. 84, 96, 98 S.Ct. 1690, 1699, 56 L.Ed.2d 132 (1978)).

Finally, we note this court's own finding of purposeful availment based (in part) on
analogous litigation threats in American Greetings Corp. v. Cohn, 839 F.2d 1164, 1170
(6th Cir.1988). The American Greetings Corp. case involved an Ohio corporation's suit,
in Ohio, against a California shareholder who had threatened to file a lawsuit to
invalidate an amendment to the company's articles of incorporation. Id. at 1165. The
district court dismissed the case, without conducting an evidentiary hearing, for lack of
personal jurisdiction, finding that the defendant merely owned stock in an Ohio company
and expressed strong reservations about a matter of shareholder interest. Id. at 1166.
This court reversed, finding purposeful availment because of the defendant's letters and
telephone calls to Ohio, in which he had threatened suit and had sought money to
release his claim. Thus, this court stated, the defendant himself had “originated and
maintained the required contacts with Ohio.” Id. at 1170.

In the instant case, the record demonstrates that Patterson not only purposefully availed
himself of CompuServe's Ohio-based services to market his software, but that he also
“originated and maintained” contacts with Ohio when he believed that CompuServe's
competing product unlawfully infringed on his own software. Patterson repeatedly sent
both electronic and regular mail messages to CompuServe about his claim, and he
posted a message on one of CompuServe's electronic forums, which outlined his case
against CompuServe for anyone who wished to read it. Moreover, the record shows
that Patterson demanded at least $100,000 to settle the matter.

Thus, we believe that the facts which CompuServe has alleged, viewed in the light most
favorable to CompuServe, support a finding that Patterson purposefully availed himself
of the privilege of doing business in Ohio. He knowingly reached out to CompuServe's
Ohio home, and he benefitted from CompuServe's handling of his software and the fees
that it generated.

2. The requirement that the cause of action arises from Patterson's activities in Ohio.
 Even though we have found that Patterson purposefully availed himself of Ohio
privileges, we must also find that CompuServe's claims against him arise out of his
activities in Ohio if we are to find the exercise of jurisdiction proper. Reynolds, 23 F.3d
at 1116-17. If a defendant's contacts with the forum state are related to the operative
facts of the controversy, then an action will be deemed to have arisen from those
contacts. Id. at 1119 (quoting Creech, 908 F.2d at 80).

The district court viewed the presence of Patterson's software on the CompuServe
system in Ohio as “entirely incidental to the alleged dispute between the parties.” In
the district court's opinion, Patterson could have claimed trademark or trade name
protection for his software against CompuServe even if he had placed his software on
another computer network altogether, or in a retail store. Patterson's discovery of the
similarity in program names may have come to his attention through the CompuServe
system, the court below noted, but it concluded that “the way in which the parties
discovered they might have a clash of legal interests is not relevant to the issue of
jurisdiction.”

Again, we must disagree with the district court's holding. The cause of action in the
instant case concerns allegations of trademark or trade name infringement and unfair
competition. Patterson's contacts with Ohio are certainly related to the operative facts
of that controversy. He placed his software on CompuServe's Ohio-based system. He
used that system to advertise his software and sell it. The proceeds of those sales
flowed to him through Ohio. According to CompuServe's allegations, Patterson has
marketed his product exclusively on their system.

As the district court points out, Patterson could have placed his software anywhere and
had the same result. Nevertheless, it is uncontroverted that Patterson placed,
marketed, and sold his software only on Ohio-based CompuServe. Thus, any common
law trademark or trade name which Patterson might have in his product would arguably
have been created in Ohio, and any violation of those alleged trademarks or trade names
by CompuServe would have occurred, at least in part, in Ohio. See United States v.
Steffens, 100 U.S. 82, 94, 25 L.Ed. 550 (1879) (stating that trademark rights, under the
common law, are appropriated only through actual prior use in commerce); Dakota
Indus. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1388 (8th Cir.1991) (stating that the
tort of trademark infringement is considered to have occurred where the passing off of
the allegedly infringing goods occurred); Tally-Ho, Inc. v. Coast Community College Dist.,
889 F.2d 1018, 1022 (11th Cir.1989) (stating that where, as here, neither party has
registered a disputed trademark with the federal government, the parties must look to
common law and state statutes to determine what protection they have); Younker v.
Nationwide Mut. Ins. Co., 175 Ohio St. 1, 191 N.E.2d 145, 148-49 (1963) (defining trade
name and trademark and stating that only the actual use of those devices in connection
with a business gives rise to legal rights); Yocono's Restaurant, Inc. v. Yocono, 100 Ohio
App.3d 11, 651 N.E.2d 1347, 1350-51 (1994) (discussing the intersection of Ohio's
Deceptive Trade Practices Act, the common law, and the federal Lanham Act).

Moreover, as noted heretofore with regard to the purposeful availment test,

CompuServe's declaratory judgment action arose in part because Patterson threatened,
via regular and electronic mail, to seek an injunction against CompuServe's sales of its
software product, or to seek damages at law if CompuServe did not pay to settle his
purported claim. Thus, Patterson's threats-which were contacts with Ohio-gave rise to
the case before us, as did the threats in the American Greetings Corp. case, 839 F.2d at
1170.

3. The reasonableness requirement.

Lastly, we consider whether exercising personal jurisdiction over Patterson would be

reasonable, i.e., whether it would “comport with ‘traditional notions of fair play and
substantial justice.’ ” Reynolds, 23 F.3d at 1117 (quoting Asahi Metal Indus., 480 U.S. at
113, 107 S.Ct. at 1032-33). We note that, if we find, as we do, the first two elements of
a prima facie case-purposeful availment and a cause of action arising from the
defendant's contacts with the forum state-then an inference arises that this third factor
is also present. American Greetings Corp., 839 F.2d at 1170 (citing First Nat'l Bank v.
J.W. Brewer Tire Co., 680 F.2d 1123, 1126 (6th Cir.1982)); Mohasco Indus., 401 F.2d at
384 & n. 30.

A court must consider several factors in this context, including “the burden on the
defendant, the interest of the forum state, the plaintiff's interest in obtaining relief, and
the interest of other states in securing the most efficient resolution of controversies.”
American Greetings Corp., 839 F.2d at 1169-70 (citing Asahi Metal Indus., 480 U.S. at
113, 107 S.Ct. at 1032-33).

The district court analogized the instant case to a standard consumer suit in which
CompuServe might have brought suit in Ohio “to collect a small amount of user fees
from a Texas resident who, while seated at his computer terminal, became a member of
the CompuServe network.”

That is not, however, the case at bar. Here, we have an entrepreneur who purposefully
employed CompuServe to market his computer software product. It may be
burdensome for Patterson to defend a suit in Ohio, but he knew when he entered into the
Shareware Registration Agreement with CompuServe that he was making a connection
with Ohio, and presumably he hoped that connection would work to his benefit.
Further, Ohio has a strong interest in resolving a dispute involving an Ohio company,
which will involve the Ohio law on common law trademarks and trade names. 8
CompuServe alleges that more than $10 million could be at stake in this case, and it also
contends that this case will have a profound impact on its relationships with other
“shareware” providers like Patterson, who also directed their activities toward Ohio-
based CompuServe. We have no reason to believe otherwise.

Again, considering the pleadings and affidavits in a light most favorable to CompuServe
(as we must), we find that, on these facts, there is a substantial enough connection
between Patterson and Ohio to make it reasonable for an Ohio court to assert personal
jurisdiction over him.9 Someone like Patterson who employs a computer network service
like CompuServe to market a product can reasonably expect disputes with that service
to yield lawsuits in the service's home state.

Finally, because of the unique nature of this case, we deem it important to note what we
do not hold. We need not and do not hold that Patterson would be subject to suit in any
state where his software was purchased or used; that is not the case before us. See
World-Wide Volkswagen, 444 U.S. at 296, 100 S.Ct. at 566-67 (rejecting the idea that a
seller of chattels could “appoint the chattel his agent for service of process”). We also
do not have before us an attempt by another party from a third state to sue Patterson in
Ohio for, say, a “computer virus” caused by his software, and thus we need not address
whether personal jurisdiction could be found on those facts. Finally, we need not and
do not hold that CompuServe may, as the district court posited, sue any regular
subscriber to its service for nonpayment in Ohio, even if the subscriber is a native
Alaskan who has never left home. Each of those cases may well arise someday, but
they are not before us now.

III. CONCLUSION

Because we believe that Patterson had sufficient contacts with Ohio to support the
exercise of personal jurisdiction over him, we REVERSE the district court's dismissal and
REMAND this case for further proceedings consistent with this opinion.