G..R. No. 132424 May 2, 2006
That despite plaintiffs’ referral of the matter to the
SPOUSES BONIFACIO R. VALDEZ, JR. and VENIDA M.
VALDEZ, Petitioners, vs.HON. COURT OF APPEALS, SPOUSES
GABRIEL FABELLA and FRANCISCA FABELLA, Respondents.
This petition for review under Rule 45 of the Rules of Court, filed by
petitioners spouses Bonifacio R. Valdez, Jr. and Venida M. Valdez,
seeks to nullify and set aside the 22 April 1997 decision 1 and 30
January 1998 resolution of the Court of Appeals in CA-G.R. SP No.
43492, which reversed the judgment, dated 8 January 1997, of the
Regional Trial Court of Antipolo, Rizal, Branch 74, in Civil Case No.
3607, which, in turn, affirmed in toto the decision rendered by the
Municipal Trial Court of Antipolo, Rizal, Branch II, in Civil Case No.
2547.
This case originated from a complaint for unlawful detainer filed by
petitioners Bonifacio and Venida Valdez against private respondents
Gabriel and Francisca Fabella before the Municipal Trial Court of
Antipolo, Rizal. The complaint alleges these material facts:
2. That plaintiffs are the registered owner[s] of a piece of
residential lot denominated as Lot [N]o. 3 Blk 19 located at
Carolina Executive Village, Brgy. Sta. Cruz, Antipolo, Rizal
which [they] acquired from Carolina Realty, Inc. Sometime [i]n
November 1992 by virtue of Sales Contract, xerox copy of
which is hereto attached marked as Annex "A" and the xerox
copy of the Torrens Certificate of Title in her name marked as
Annex "B";
3. That defendants, without any color of title whatsoever
occupie[d] the said lot by building their house in the said lot
thereby depriving the herein plaintiffs rightful possession
thereof;
4. That for several times, plaintiffs orally asked the herein
defendants to peacefully surrender the premises to them, but
the latter stubbornly refused to vacate the lot they unlawfully
occupied;
5.
Barangay, defendants still refused to heed the plea of the
former to surrender the lot peacefully;
6. That because of the unfounded refusal of the herein
defendants to settle the case amicably, the Barangay Captain
was forced to issue the necessary Certification to File Action
in favor of the herein plaintiffs in order that the necessary
cause of action be taken before the proper court, xerox copy
of which is hereto attached marked as Annex "C";
7. That by reason of the deliberate, malicious and unfounded
refusal of the defendants to vacate/surrender the premises in
question, the herein plaintiffs were constrained to engage the
professional services of counsel thus incurring expenses
amounting to TEN THOUSAND PESOS (P10,000.00)
representing acceptance fee and additional ONE
THOUSAND PESOS (P1,000.00) per appearance, who on
July 12, 1994 sent a formal demand was likewise ignored,
(sic) copy of which is hereto attached as Annex "D";
8. That likewise by virtue of the adamant refusal of the
defendants to vacate/surrender the said premises in question,
plaintiff[s] suffered serious anxiety, sleepless nights, mental
torture and moral erosion; x x x2
In their answer, private respondents contended that the complaint
failed to state that petitioners had prior physical possession of the
property or that they were the lessors of the former. In the alternative,
private respondents claimed ownership over the land on the ground
that they had been in open, continuous, and adverse possession
thereof for more than thirty years, as attested by an ocular inspection
report from the Department of Environment and Natural Resources.
They also stressed that the complaint failed to comply with Supreme
Court Circular No. 28-91 regarding affidavits against non-forum
shopping.
The Municipal Trial Court (MTC) rendered a decision in favor of the
petitioners, ordering private respondents to vacate the property and to
pay rent for the use and occupation of the same plus attorney’s fees.
Private respondents appealed the MTC’s decision to the Regional
Trial Court (RTC). The RTC, in a decision dated 8 January 1997,
affirmed in toto the decision of the MTC.
Undeterred, the private respondents filed a petition for review with the
Court of Appeals on 10 March 1997 questioning the decision of the
RTC.
In a decision dated 22 April 1997, the Court of Appeals reversed and
set aside the decision of the RTC. It held that petitioners failed to make
a case for unlawful detainer because they failed to show that they had
given the private respondents the right to occupy the premises or that
they had tolerated private respondents’ possession of the same, which
is a requirement in unlawful detainer cases. It added that the
allegations in petitioners’ complaint lack jurisdictional elements for
forcible entry which requires an allegation of prior material possession.
The Court of Appeals ratiocinated thus:
An examination of the complaint reveals that key jurisdictional
allegations that will support an action for ejectment are conspicuously
lacking. In particular, an allegation of prior material possession is
mandatory in forcible entry, xxx and the complaint is deficient in this
respect. On the other hand, neither does there appear to be a case of
unlawful detainer, since the private respondents failed to show that
they had given the petitioners the right to occupy the premises, which
right has now [been] extinguished.
xxx
In light of the foregoing, the conclusion is inevitable that the Municipal
Trial Court before which the action for ejectment was filed had no
jurisdiction over the case. Consequently, the dismissal thereof is in
order.
WHEREFORE, the Petition is hereby GIVEN DUE COURSE, and
GRANTED. The decision dated 08 January 1997 rendered by the
respondent court is hereby REVERSED and SET ASIDE, and
judgment is hereby rendered DISMISSING the complaint in Civil Case
No. 2547 of the Municipal Trial Court of Antipolo, Rizal for lack of
jurisdiction.3
Petitioners filed a motion for reconsideration which was denied in a
resolution dated 30 January 1998.4
Hence, the instant petition.
Petitioners submit the following issues for the Court’s consideration5:
A. WHETHER OR NOT THE ALLEGATIONS OF THE COMPLAINT
CLEARLY MADE OUT A CASE FOR UNLAWFUL DETAINER.
B. WHETHER OR NOT BASED ON THE ALLEGATION(S) OF THE
COMPLAINT, THE MUNICIPAL TRIAL COURT OF ANTIPOLO,
RIZAL, CLEARLY HAS ORIGINAL JURISDICTION OVER THE
INSTANT COMPLAINT FILED BEFORE IT.
Since the two issues are closely intertwined, they shall be discussed
together.
In the main, petitioners claim that the averments of their complaint
make out a case for unlawful detainer having alleged that private
respondents unlawfully withheld from them the possession of the
property in question, which allegation is sufficient to establish a case
for unlawful detainer. They further contend that the summary action
for ejectment is the proper remedy available to the owner if another
occupies the land at the former’s tolerance or permission without any
contract between the two as the latter is bound by an implied promise
to vacate the land upon demand by the owner.
The petition is not meritorious.
Under existing law and jurisprudence, there are three kinds of actions
available to recover possession of real property: (a) accion interdictal;
(b) accion publiciana; and (c) accion reivindicatoria.6
Accion interdictal comprises two distinct causes of action, namely,
forcible entry (detentacion) and unlawful detainer (desahuico).7 In
forcible entry, one is deprived of physical possession of real property
by means of force, intimidation, strategy, threats, or stealth whereas
in unlawful detainer, one illegally withholds possession after the
expiration or termination of his right to hold possession under any
contract, express or implied.8 The two are distinguished from each
other in that in forcible entry, the possession of the defendant is illegal
from the beginning, and that the issue is which party has prior de
facto possession while in unlawful detainer, possession of the
defendant is originally legal but became illegal due to the expiration or
termination of the right to possess.9
The jurisdiction of these two actions, which are summary in nature,
lies in the proper municipal trial court or metropolitan trial court. 10 Both
actions must be brought within one year from the date of actual entry
on the land, in case of forcible entry, and from the date of last demand,
in case of unlawful detainer.11 The issue in said cases is the right to
physical possession.
Accion publiciana is the plenary action to recover the right of
possession which should be brought in the proper regional trial court
when dispossession has lasted for more than one year.12 It is an
ordinary civil proceeding to determine the better right of possession of
realty independently of title.13 In other words, if at the time of the filing
of the complaint more than one year had elapsed since defendant had
turned plaintiff out of possession or defendant’s possession had
become illegal, the action will be, not one of the forcible entry or illegal
detainer, but an accionpubliciana. On the other hand, accion
reivindicatoria is an action to recover ownership also brought in the
proper regional trial court in an ordinary civil proceeding.14
To justify an action for unlawful detainer, it is essential that the
plaintiff’s supposed acts of tolerance must have been present right
from the start of the possession which is later sought to be
recovered.15 Otherwise, if the possession was unlawful from the start,
an action for unlawful detainer would be an improper remedy.16 As
explained in Sarona v. Villegas17:
But even where possession preceding the suit is by tolerance of the
owner, still, distinction should be made.
If right at the incipiency defendant’s possession was with plaintiff’s
tolerance, we do not doubt that the latter may require him to vacate
the premises and sue before the inferior court under Section 1 of Rule
70, within one year from the date of the demand to vacate.
xxxx
A close assessment of the law and the concept of the word "tolerance"
confirms our view heretofore expressed that such tolerance must be
present right from the start of possession sought to be recovered, to
categorize a cause of action as one of unlawful detainer - not of
forcible entry. Indeed, to hold otherwise would espouse a dangerous
doctrine. And for two reasons: First. Forcible entry into the land is an
open challenge to the right of the possessor. Violation of that right
authorizes the speedy redress – in the inferior court - provided for in
the rules. If one year from the forcible entry is allowed to lapse before
suit is filed, then the remedy ceases to be speedy; and the possessor
is deemed to have waived his right to seek relief in the inferior
court. Second, if a forcible entry action in the inferior court is allowed
after the lapse of a number of years, then the result may well be that
no action of forcible entry can really prescribe. No matter how long
such defendant is in physical possession, plaintiff will merely make a
demand, bring suit in the inferior court – upon a plea of tolerance to
prevent prescription to set in - and summarily throw him out of the land.
Such a conclusion is unreasonable. Especially if we bear in mind the
postulates that proceedings of forcible entry and unlawful detainer are
summary in nature, and that the one year time-bar to suit is but in
pursuance of the summary nature of the action.18 (Underlining
supplied)
It is the nature of defendant’s entry into the land which determines the
cause of action, whether it is forcible entry or unlawful detainer. If the
entry is illegal, then the action which may be filed against the intruder
is forcible entry. If, however, the entry is legal but the possession
thereafter becomes illegal, the case is unlawful detainer.
Indeed, to vest the court jurisdiction to effect the ejectment of an
occupant, it is necessary that the complaint should embody such a
statement of facts as brings the party clearly within the class of cases
for which the statutes provide a remedy, as these proceedings are
summary in nature.19 The complaint must show enough on its face the
court jurisdiction without resort to parol testimony.20
The jurisdictional facts must appear on the face of the complaint.
When the complaint fails to aver facts constitutive of forcible entry or
unlawful detainer, as where it does not state how entry was affected
or how and when dispossession started, the remedy should either be
an accion publiciana or an accion reivindicatoria in the proper regional
trial court.21 Thus, in Go, Jr. v. Court of Appeals,22 petitioners filed an
unlawful detainer case against respondent alleging that they were the
owners of the parcel of land through intestate succession which was
occupied by respondent by mere tolerance of petitioners as well as
their deceased mother. Resolving the issue on whether or not
petitioners’ case for unlawful detainer will prosper, the court ruled23:
Petitioners alleged in their complaint that they inherited the property
registered under TCT No. C-32110 from their parents; that possession
thereof by private respondent was by tolerance of their mother, and
after her death, by their own tolerance; and that they had served
written demand on December, 1994, but that private respondent
refused to vacate the property. x x x
It is settled that one whose stay is merely tolerated becomes a
deforciant illegally occupying the land the moment he is required to
leave. It is essential in unlawful detainer cases of this kind, that
plaintiff’s supposed acts of tolerance must have been present right
from the start of the possession which is later sought to be recovered.
This is where petitioners’ cause of action fails. The appellate court, in
full agreement with the MTC made the conclusion that the alleged
tolerance by their mother and after her death, by them, was
unsubstantiated. x x x
The evidence revealed that the possession of defendant was illegal at
the inception and not merely tolerated as alleged in the complaint,
considering that defendant started to occupy the subject lot and then
built a house thereon without the permission and consent of petitioners
and before them, their mother. xxx Clearly, defendant’s entry into the
land was effected clandestinely, without the knowledge of the owners,
consequently, it is categorized as possession by stealth which is
forcible entry. As explained in Sarona vs. Villegas, cited in Muñoz vs.
Court ofAppeals [224 SCRA 216 (1992)] tolerance must be present
right from the start of possession sought to be recovered, to categorize
a cause of action as one of unlawful detainer not of forcible entry x x
x.
And in the case of Ten Forty Realty and Development Corp. v.
Cruz,24 petitioner’s complaint for unlawful detainer merely contained
the bare allegations that (1) respondent immediately occupied the
subject property after its sale to her, an action merely tolerated by
petitioner; and (2) her allegedly illegal occupation of the premises was
by mere tolerance. The court, in finding that the alleged tolerance did
not justify the action for unlawful detainer, held:
To justify an action for unlawful detainer, the permission or tolerance
must have been present at the beginning of the possession. x x x
xxxx
In this case, the Complaint and the other pleadings do not recite any
averment of fact that would substantiate the claim of petitioner that it
permitted or tolerated the occupation of the property by Respondent
Cruz. The complaint contains only bare allegations that 1) respondent
immediately occupied the subject property after its sale to her, an
action merely tolerated by petitioner; and 2) her allegedly illegal
occupation of the premises was by mere tolerance.
These allegations contradict, rather than support, petitioner’s theory
that its cause of action is for unlawful detainer. First, these arguments
advance the view that respondent’s occupation of the property was
unlawful at its inception. Second, they counter the essential
requirement in unlawful detainer cases that petitioner’s supposed act
of sufferance or tolerance must be present right from the start of a
possession that is later sought to be recovered.25
In the instant case, the allegations in the complaint do not contain any
averment of fact that would substantiate petitioners’ claim that they
permitted or tolerated the occupation of the property by respondents.
The complaint contains only bare allegations that "respondents
without any color of title whatsoever occupies the land in question by
building their house in the said land thereby depriving petitioners the
possession thereof." Nothing has been said on how respondents’
entry was effected or how and when dispossession started.
Admittedly, no express contract existed between the parties. This
failure of petitioners to allege the key jurisdictional facts constitutive of
unlawful detainer is fatal.26 Since the complaint did not satisfy the
jurisdictional requirement of a valid cause for unlawful detainer, the
municipal trial court had no jurisdiction over the case.27 It is in this light
that this Court finds that the Court of Appeals correctly found that the
municipal trial court had no jurisdiction over the complaint.
WHEREFORE, the petition is DENIED and the judgment of the Court
of Appeals dismissing the complaint in Civil Case No. 2547 of the MTC
Antipolo, Rizal for lack of jurisdiction is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 202354 September 24, 2014
AMADA C. ZACARIAS, Petitioner,
vs. VICTORIA ANACAY, EDNA ANACAY,
CYNTHIAANACAYGUISIC, ANGELITO ANACAY, JERMIL ISRAEL,
JIMMY ROY ISRAEL and all other persons claiming authority
under them, Respondents.
Assailed in this petition for review under Rule 45 is the Decision1 dated
June 20, 2012 of the Court of Appeals (CA) in CA-G.R. SP No. 123195
which reversed the Decision2 dated August 22, 2011 of the Regional
Trial Court (RTC) of Cavite, Branch 18, Tagaytay City and affirmed the
Decision3 dated October 8, 2010 of the Municipal Circuit Trial Court
(MCTC) of Amadeo-Silang, Cavite, Branch 17 in Civil Case No. 862.
The present controversy stemmed from a complaint4 for Ejectment
with Damages/Unlawful Detainer filed on December 24, 2008 by
petitioner Amada Zacarias thru her son and attorney-in-fact, Cesar C.
Zacarias, against the above-named respondents, Victoria Anacay and
members of her household. Said respondents are the occupants of a
parcel of land with an area of seven hundred sixty-nine (769) square
meters, situated at Barangay Lalaan 1st, Silang, Cavite and covered
by Tax Declaration No. 18-026-01182 in the name of petitioner and
issuedby Municipal Assessor Reynaldo L. Bayot on August 31, 2007.
The parties were ordered to proceed to the Philippine Mediation
Center pursuant to Section 2(a), Rule 18 of the 1997 Rules of Civil
Procedure, as amended. Mediation was unsuccessful and thus the
case was returned to the court.5
After due proceedings, the MCTC rendered a Decision dismissing the
complaint, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is, hereby, rendered
in favor of defendants Victoria Anacay, Edna Anacay, Santiago
Amerna, Raymond and Cynthia Guisic, Angelito Anacay and Myrlinda
Yalo, and all persons acting under them, and against plaintiff Amada
C. Zacarias, represented by her attorney-in-fact, Cesar C. Zacarias,
the instant Complaint for ejectment with damages, Unlawful Detainer
is, hereby, DISMISSED.
SO ORDERED.6
The MCTC held that the allegations of the complaint failed to state the
essential elements of an action for unlawful detainer as the claim that
petitioner had permitted or tolerated respondents’ occupation of the
subject property was unsubstantiated. It noted that the averments in
the demand letter sent by petitioner’s counsel that respondents
entered the property through stealth and strategy, and in petitioner’s
own "Sinumpaang Salaysay", are more consistent withan action for
forcible entry which should have been filed within one year from the
discovery of the alleged entry. Since petitioner was deprived of the
physical possession of her property through illegal means and the
complaint was filed after the lapse of one year from her discovery
thereof, the MCTC ruled that it has no jurisdiction over the case.
On appeal to the RTC, petitioner argued that unlawful detainer was
the proper remedy considering that she merely tolerated respondents’
stay in the premises after demand to vacate was made upon them,
and they had in fact entered into an agreement and she was only
forced to take legal action when respondents reneged on their promise
to vacate the property after the lapse of the period agreed upon.
In reversing the MCTC, the RTC pointed out that in her complaint,
petitioner did not state that respondents entered her property through
stealth and strategy but that petitioner was in lawful possession and
acceded to the request of respondents to stay in the premises until
May 2008 but respondents’ reneged on their promise to vacate the
property by that time. It held that the suit is one for unlawful detainer
because the respondents unlawfully withheld the property from
petitioner after she allowed them to stay there for one year.
With the subsequent oral agreement between the parties, the RTC
ruled that respondents’ occupation ofthe property without petitioner’s
consent can be converted to a contract, such agreement not being
prohibited by law nor contrary to morals or good customs. Having
satisfied the requisites for an unlawful detainer action, the RTC found
that petitioner’s complaint was filed within the prescribed one-year
period counted from the time the final demand to vacate was received
by the respondents on July 24, 2008.
The falloof the Decision of the RTC states:
WHEREFORE, premises considered, the Decision of the Municipal
Circuit Trial Court of Silang-Amadeo dated October 8, 2010 is hereby
REVERSED AND SET ASIDE and a new one is entered ordering the
defendants and all claiming under their rights to: (1) vacate the subject
property and surrender possession and control over the same to the
plaintiff; Pay the sum of Two Thousand (₱2,000.00) Pesos each as
rentals or compensation for the use thereof starting from July 2008
until the same is paid in full, with interests thereon at twelve (12%)
percent per annum; (2) pay the sum of Fifty Thousand (₱50,000.00)
Pesos, as moral damages; (3) pay the sum of Ten Thousand
(₱10,000.00) Pesos, as exemplary damages; and (4) pay the sum of
Twenty Thousand (₱20,000.00) Pesos, as attorney’s fees.
SO ORDERED.7
With the failure of respondents to file a notice of appeal within the
reglementary period, the above decision became final and executory.8
On November 28, 2011, petitioner filed a motion for issuance of a writ
of execution. At the hearing heldon January 4, 2012,respondents were
given a period of ten days within which to file their comment. At the
next scheduled hearing on February 6, 2012,respondents’ counsel
appeared and submitted a Formal Entry of Appearancewith
Manifestation informing the court that on the same day they had filed
a petition for certiorari with prayer for injunction before the CA, copies
ofwhich were served to petitioner thru her counsel and to the RTC.
Nonetheless, in its Order dated February 6, 2012, the RTC stated that
said manifestation was "tantamount to [a] comment to the pending
motion" and thus gave petitioner’s counsel a period of ten (10) days
within which to fileher Reply and thereafter the incident will be
submitted for resolution.9
On June 20, 2012, the CA rendered its Decision, the dispositive
portion of which reads:
WHEREFORE, the petition is GRANTED. Accordingly, the assailed
Order dated August 22, 2011 rendered by the Regional Trial Court of
Cavite, 4th Judicial Region, Branch 18, Tagaytay City is REVERSED
and SET ASIDE. The Decision dated October 8, 2010 rendered by the
Municipal Circuit Trial Court, Branch 17 is AFFIRMED.
SO ORDERED.10
The CA held that the MCTC clearlyhad no jurisdiction over the case
as the complaint did not satisfy the jurisdictional requirement of a valid
cause for unlawful detainer. Since the prescriptive period for filing an
action for forcible entry has lapsed, petitioner could not convert her
action into one for unlawful detainer, reckoning the one-year period to
file her action from the time of her demand for respondents to vacate
the property.
Further, the CA said that while petitioner has shown that she is the
lawful possessor of the subject property,she availed of the wrong
remedy to recover possession but nevertheless may still file an accion
publicianaor accion reivindicatoria with the proper regional trial court.
Petitioner contends that the CA erred and committed grave abuse of
discretion amounting to lack and/or excess of jurisdiction in nullifying
the judgment of the RTC which has long become final and executory.
She argues that the suspension of the strictadherence to procedural
rules cannot be justified by unsupported allegationsof the respondents
as to supposed non-receipt of documents concerning this case.
On their part, respondents maintain that they were not aware of the
proceedings before the RTC and were not furnished a copy of the said
court’s adverse decision. They also stress that resort to certiorari was
proper and the suspension of procedural rules was justified by
compelling circumstances such as the imminentdestruction of the only
property possessed by respondents who are indigent, respondents’
lack of awareness of unfavorable judgment rendered on appeal by the
RTC, substantive merits of the case insofar as the jurisdictional
requirements in a suit for unlawful detainer, lack of showing that
resortto certiorari petition was frivolous and dilatory, and there being
no prejudice caused to the other party.
After a thorough review of the records and the parties’ submissions,
we find neither reversible error nor grave abuse of discretion
committed by the CA.
The invariable rule is that what determines the nature of the action, as
well as the court which has jurisdiction over the case, are the
allegations in the complaint.11 In ejectment cases, the complaint
should embody such statement of facts as to bring the party clearly
within the class of cases for which Section 112 of Rule 70 provides a
summary remedy, and must show enough on its face to give the court
jurisdiction without resort to parol evidence.13 Such remedy is either
forcibleentry or unlawful detainer. In forcible entry, the plaintiff is
deprived of physical possession of his land or building by means of
force, intimidation, threat, strategy or stealth. In illegal detainer, the
defendant unlawfully withholds possession after the expiration or
termination of his right thereto under any contract, express or
implied.14
The MCTC and CA both ruled thatthe allegations in petitioner’s
complaint make out a case for forcible entry but not for unlawful
detainer.
In Cabrera v. Getaruela,15 the Court held that a complaint sufficiently
alleges a cause of action for unlawful detainer if it recites the following:
(1) initially, possession of property by the defendant was by contract
with or by toleranceof the plaintiff;
(2) eventually, such possession became illegal upon notice by plaintiff
to defendant of the termination ofthe latter’s right of possession;
(3) thereafter, the defendant remained in possession of the property
and deprived the plaintiff of the enjoyment thereof; and
(4) within one year from the last demand on defendant to vacate the
property, the plaintiff instituted the complaint for ejectment.16
In this case, the Complaint alleged the following:
3. Plaintiff is the owner of that parcel of land situated at Barangay
Lalaan 1st, Silang, Cavite with an area of SEVEN HUNDRED SIXTY
NINE (769) SQUARE METERS, and covered by Tax Declaration No.
18-026-01182 issued by the Municipal Assessor of Silang, Cavite.
Copy of said tax declaration is hereto attached as Annex "B";
4. Plaintiff was in lawful possession and control over the subject
property. She had it planted to Bananas and other fruit bearing trees.
However, sometime in May, 2007, she discovered that the defendants
have entered the subject property and occupied the same;
5. Consequently, Plaintiff demanded that they leave the premises. The
defendants requested for time toleave and she acceded to said
request. The defendants committed to vacate the subject property by
the end of May, 2008;
6. Inspite of several repeateddemands, defendants unjustifiably
refused to vacate the subject premises prompting the Plaintiff to seek
the assistance of a lawyer who wrote them a FORMAL and FINAL
DEMAND to vacate the premises and to pay reasonable
compensation for their illegal use and occupancy of the subject
property. A copy of the DEMAND LETTER is hereto attached as
Annex "C";
7. Plaintiff also referred this matter to the Lupon Tagapamayapa of
Barangay Lalaan 1st for possible conciliation but to no avail as the
defendants still refused to vacate the subject property. Thus, the said
Barangay issued a CERTIFICATION TOFILE ACTION, as evidenced
by a copy thereto attached as Annex "D";
xxx x17
The above complaint failed to allegea cause of action for unlawful
detainer as it does not describe possession by the respondents being
initially legal or tolerated by the petitioner and which became illegal
upon termination by the petitioner of suchlawful possession.
Petitioner’s insistence that she actually tolerated respondents’
continued occupation after her discovery of their entry into the subject
premises is incorrect. As she had averred, she discovered
respondents’occupation in May 2007. Such possession could not
have been legal from the start as it was without her knowledge or
consent, much less was it based on any contract, express or implied.
We stress that the possession ofthe defendant in unlawful detainer is
originally legal but became illegal due to the expiration or termination
of the right to possess.18
In Valdez v. Court of Appeals,19 the Court ruled that where the
complaint did not satisfy the jurisdictional requirement of a valid cause
for unlawful detainer, the municipal trial court had no jurisdiction over
the case. Thus:
To justify an action for unlawful detainer, it is essential that the
plaintiff’s supposed acts of tolerance must have been present right
from the start of the possession which is later sought to be recovered.
Otherwise, if the possession was unlawful from the start, an action for
unlawful detainer would be an improper remedy. As explained in
Sarona v. Villegas:
But even where possession preceding the suit is by tolerance of the
owner, still, distinction should be made.
If right at the incipiencydefendant’s possession was with plaintiff’s
tolerance, we do not doubt that the latter may require him to vacate
the premises and sue before the inferior court under Section 1 of Rule
70, within one year from the date of the demand to vacate.
xxxx
A close assessment of the law and the concept of the word "tolerance"
confirms our view heretofore expressed that such tolerance must be
present right from the start of possession sought to be recovered, to
categorize a cause of action as one of unlawful detainer - not of
forcible entry. Indeed, to hold otherwise would espouse a dangerous
doctrine. And for two reasons:First. Forcible entry into the land is an
open challenge tothe right of the possessor. Violation of that right
authorizes the speedy redress – in the inferior court - provided for in
the rules. If one year from the forcible entry is allowed to lapse before
suit is filed, then the remedy ceases to bespeedy; and the possessor
is deemed to have waived his right to seek relief in the inferior court.
Second,if a forcible entry action in the inferior courtis allowed after the
lapse of a number of years, then the result may well be that no action
of forcible entry can really prescribe. No matter how long such
defendant is in physical possession, plaintiff will merely make a
demand, bring suit in the inferior court – upon a plea of tolerance to
prevent prescription to set in - and summarily throw him out of the land.
Such a conclusion is unreasonable. Especially if we bear in mind the
postulates that proceedings of forcible entry and unlawful detainer are
summary in nature, and that the one year time-bar to suit is but in
pursuance of the summary nature of the action. (Italics and
underscoring supplied)
It is the nature of defendant’s entry into the land which determines the
cause of action, whether it is forcible entry or unlawful detainer. If the
entry is illegal, then the action which may be filed against the intruder
is forcible entry. If, however, the entry is legal but the possession
thereafter becomes illegal, the case is unlawful detainer.
Indeed, to vest the court jurisdiction to effect the ejectment of an
occupant, it is necessary that the complaint should embody such a
statement of facts as brings the party clearly within the class of cases
for which the statutes provide a remedy, as these proceedings are
summary in nature. The complaint must show enough on its face the
court jurisdiction without resort to parol testimony.
The jurisdictional facts must appear on the face of the complaint.
When the complaint fails to aver facts constitutive of forcible entry or
unlawful detainer, as where it does not state how entry was affected
or how and when dispossession started, the remedy should either be
an accion publicianaor an accion reivindicatoria in the proper regional
trial court. Thus, in Go, Jr. v. Court of Appeals, petitioners filed an
unlawful detainer case against respondent alleging that they were the
owners of the parcel of land through intestate succession which was
occupied by respondent by mere tolerance of petitioners as well as
their deceased mother. Resolving the issue on whether or not
petitioners’ case for unlawful detainer will prosper, the court ruled:
Petitioners alleged in their complaint that they inherited the property
registered under TCT No. C-32110 from their parents; that possession
thereof by private respondent was by tolerance of their mother, and
after her death, by their own tolerance; and that they had served
written demand on December, 1994, but that private respondent
refused to vacate the property. x x x
It is settled that one whose stay is merely tolerated becomes a
deforciant illegally occupying the land the moment he is required to
leave. It is essential in unlawful detainer cases of this kind, that
plaintiff’s supposed acts of tolerance must have been present right
from the start of the possession which is later sought to be recovered.
This is where petitioners’ cause of action fails. The appellate court, in
full agreement with the MTC made the conclusion that the alleged
tolerance by their mother and after her death, by them, was
unsubstantiated. x x x
The evidence revealed that the possession of defendant was illegal at
the inception and not merely tolerated as alleged in the complaint,
considering that defendant started to occupy the subject lot and then
built a house thereon without the permission and consent of petitioners
and before them, their mother. xxx Clearly, defendant’s entry into the
land was effected clandestinely, without the knowledge of the owners,
consequently, it is categorized as possession by stealth which is
forcible entry. As explained in Sarona vs. Villegas, cited in Muñoz vs.
Court of Appeals[224 SCRA 216 (1992)] tolerance must be present
right from the start of possession sought to be recovered, to categorize
a cause of action as one of unlawful detainer not of forcible entry x x
x.
xxxx
In the instant case, the allegations in the complaint do not contain any
averment of fact that would substantiate petitioners’ claim that they
permitted or tolerated the occupation of the property by respondents. WHEREFORE, the petition is DENIED for lack of merit. The Decision
The complaint contains only bare allegations that "respondents dated June 20, 2012 of the Court of Appeals in CA-G.R. SP No.
without any color of title whatsoever occupies the land in question by 123195 is hereby AFFIRMED.
building their house in the said land thereby depriving petitioners the
possession thereof." Nothing has been said on how respondents’ No pronouncement as to costs.
entry was effected or how and when dispossession started.
Admittedly, no express contract existed between the parties. This
SO ORDERED.
failure of petitioners to allege the key jurisdictional facts constitutive of
unlawful detainer is fatal. Since the complaint did not satisfy the
jurisdictional requirement of a valid cause for unlawful detainer, the
municipal trial court had no jurisdiction over the case.It is in this light
that this Court finds that the Court of Appeals correctly found that the
municipal trial court had no jurisdiction over the complaint. (Emphasis
supplied.)

The complaint in this case is similarly defective as it failed to allege

how and when entry was effected. The bare allegation of petitioner
that "sometime in May, 2007, she discovered that the defendants have
enterep the subject property and occupied the same", as correctly
found by the MCTC and CA, would show that respondents entered the
land and built their houses thereon clandestinely and without
petitioner's consent, which facts are constitutive of forcible entry, not
unlawful detainer. Consequently, the MCTC has no jurisdiction over
the case and the RTC clearly erred in reversing the lower court's ruling
and granting reliefs prayed for by the petitioner.

Lastly, petitioner's argument that the CA gravely erred in nullifying a

final and executory judgment of the RTC deserves scant
consideration.

It is well-settled that a court's jurisdiction may be raised at any stage

of the proceedings, even on appeal. The reason is that jurisdiction is
conferred by law, and lack of it affects the very authority of the court
to take cognizance of and to render judgment on the action.20 Indeed,
a 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. All acts
performed pursuant to it and all claims emanating from it have no legal
effect. Hence, it can never become final and any writ of execution
based on it is void.21
G.R. No. 169380 November 26, 2012
FIORELLO R. JOSE, Petitioner,
vs. ROBERTO ALFUERTO, ERNESTO BACAY, ILUMINADO
BACAY, MANUEL BANTACULO, LETTY BARCELO, JING
BERMEJO, MILNA BERMEJO, PABLO BERMEJO, JHONNY
BORJA, BERNADETTE BUENAFE, ALFREDO CALAGOS,
ROSAURO CALAGOS, ALEX CHACON, AIDA CONSULTA,
CARMEN CORPUZ, RODOLFO DE VERA, ANA DELA ROSA,
RUDY DING, JOSE ESCASINAS, GORGONIO ESPADERO,
DEMETRIO ESTRERA, ROGELIO ESTRERA, EDUARDO
EVARDONE, ANTONIO GABALEÑO, ARSENIA GARING,
NARCING GUARDA, NILA LEBATO, ANDRADE LIGAYA, HELEN
LOPEZ, RAMON MACAIRAN, DOMINGO NOLASCO, JR.,
FLORANTE NOLASCO, REGINA OPERARIO, CARDING
ORCULLO, FELICISIMO PACATE, CONRADO P AMINDALAN,
JUN PARIL, RENE SANTOS, DOMINADOR SELVELYEJO,
VILLAR, JOHN DOE, JANE DOE and Unknown Occupants of
Olivares Compound, Phase II, Barangay San Dionisio, Parañaque
City, Respondents.
Before us is a petition for review on certiorari under Rule 45 of the
Rules of Court assailing the decision1 dated March 14, 2005 of the
Court of Appeals in CA-G.R. SP No. 80166. The Court of Appeals’
decision reversed the decisions of the Regional Trial Court (RTC) of
Parañaque City, Branch 257, and of the Metropolitan Trial Court
(MeTC) of Parañaque City, Branch 77, by dismissing petitioner
Fiorello R. Jose’s complaint for ejectment against Roberto Alfuerto,
Ernesto Bacay, Iluminado Bacay, Manuel Bantaculo, Letty Barcelo,
Jing Bermejo, Milna Bermejo, Pablo Bermejo, Jhonny Borja,
Bernadette Buenafe, Alfredo Calagos, Rosauro Calagos, Alex
Chacon, Aida Consulta, Carmen Corpuz, Rodolfo De Vera, Ana Dela
Rosa, Rudy Ding, Jose Escasinas, Gorgonio Espadero, Demetrio
Estrera, Rogelio Estrera, Eduardo Evardone, Antonio Gabaleño,
Arsenia Garing, Narcing Guarda, Nila Lebato, Andrade Ligaya, Helen
Lopez, Ramon Macairan, Domingo Nolasco, Jr., Florante Nolasco,
Regina Operario, Carding Orcullo, Felicisimo Pacate, Conrado
Pamindalan, Jun Paril, Rene Santos, Dominador Selvelyejo, Rosario
Ubaldo, Sergio Villar, John Doe, Jane Doe and Unknown Occupants
of Olivares Compound, Phase II, Barangay San Dionisio, Parañaque
City (respondents), on the ground that the petitioner’s cause of action
was not for unlawful detainer but for recovery of possession. The
appellate court affirmed this decision in its resolution of August 22,
2005.2
The dispute involves a parcel of land registered in the name of Rodolfo
Chua Sing under Transfer Certificate of Title No. 52594,3 with an area
of 1919 square meters, located in Barangay San Dionisio, Parañaque
City. Chua Sing purchased the land in 1991. On April 1, 1999, Chua
Sing leased the property to the petitioner. Their contract of lease was
neither notarized nor registered with the Parañaque City Registry of
Deeds.4
The lease contract provided that:
That the term of this lease shall be FIVE (5) years and renewable for
the same period upon mutual agreement of the parties to commence
upon the total eviction of any occupant or occupants. The LESSOR
hereby transfers all its rights and prerogative to evict said occupants
in favor of the LESSEE which shall be responsible for all expenses
that may be incurred without reimbursement from the LESSOR. It is
understood however that the LESSOR is hereby waiving, in favor of
the LESSEE any and all damages that may be recovered from the
occupants.5(Underscore ours)
Significantly, the respondents already occupied the property even
before the lease contract was executed.
On April 28, 1999, soon after Chua Sing and the petitioner signed the
lease contract, the petitioner demanded in writing that the respondents
vacate the property within 30 days and that they pay a monthly rental
of P1,000.00 until they fully vacate the property.6
The respondents refused to vacate and to pay rent. On October 20,
1999, the petitioner filed an ejectment case against the respondents
before Branch 77 of the Parañaque City MeTC, docketed as Civil Case
No. 11344.7
In this complaint, no mention was made of any proceedings before the
barangay. Jose then brought the dispute before the barangay for
conciliation.8 The barangay issued a Certification to File Action on
March 1, 2000.9 Jose was then able to file an amended complaint,
incorporating the proceedings before the barangay before the
summons and copies of the complaint were served upon the named
defendants.10
In the Amended Complaint11 dated March 17, 2000, the petitioner
claimed that as lessee of the subject property, he had the right to eject
the respondents who unlawfully occupy the land. He alleged that:
7. Defendants, having been fully aware of their unlawful occupancy of
the subject lot, have defiantly erected their houses thereat without
benefit of any contract or law whatsoever, much less any building
permit as sanctioned by law, but by mere tolerance of its true, lawful
and registered owner, plaintiff’s lessor.12
The petitioner also stated that despite his written demand, the
respondents failed to vacate the property without legal justification. He
prayed that the court order the respondents; (1) to vacate the
premises; (2) to pay him not less than P41,000.00 a month from May
30,1999 until they vacate the premises; and (3) to pay him attorney’s
fees of no less than P50,000.00, and the costs of suit.13
In their Answer, the respondents likewise pointed out that they have
been in possession of the land long before Chua Sing acquired the
property in 1991, and that the lease contract between the petitioner
and Chua Sing does not affect their right to possess the land. The
respondents also presented a Deed of Assignment, 14 dated February
13, 2000, issued by David R. Dulfo in their favor. They argued that the
MeTC had no jurisdiction over the case as the issue deals with
ownership of the land, and sought the dismissal of the complaint for
lack of cause of action and for lack of jurisdiction. They also filed a
counterclaim for actual and moral damages for the filing of a baseless
and malicious suit.
After the required position papers, affidavits and other pieces of
evidence were submitted, the MeTC resolved the case in the
petitioner’s favor. In its decision15 of January 27, 2003, the MeTC held
that the respondents had no right to possess the land and that their
occupation was merely by the owner’s tolerance. It further noted that
the respondents could no longer raise the issue of ownership, as this
issue had already been settled: the respondents previously filed a
case for the annulment/cancellation of Chua Sing’s title before the
RTC, Branch 260, of Parañaque City, which ruled that the registered
owner’s title was genuine and valid. Moreover, the MeTC held that it
is not divested of jurisdiction over the case because of the
respondents’ assertion of ownership of the property. On these
premises, the MeTC ordered the respondents to vacate the premises
and to remove all structures introduced on the land; to each pay
P500.00 per month from the date of filing of this case until they vacate
the premises; and to pay Jose, jointly and severally, the costs of suit
and P20,000.00 as attorney’s fees.
On appeal before the RTC, the respondents raised the issue, among
others, that no legal basis exists for the petitioner’s claim that their
occupation was by tolerance, "where the possession of the defendants
was illegal at the inception as alleged in the complaint, there can be
no tolerance."16
The RTC affirmed the MeTC decision of January 27, 2003. It issued
its decision17 on October 8, 2003, reiterating the MeTC’s ruling that a
case for ejectment was proper. The petitioner, as lessee, had the right
to file the ejectment complaint; the respondents occupied the land by
mere tolerance and their possession became unlawful upon the
petitioner’s demand to vacate on April 28, 1999. The RTC, moreover,
noted that the complaint for ejectment was filed on October 20, 1999,
or within one year after the unlawful deprivation took place. It cited
Pangilinan, et al. v. Hon. Aguilar, etc., et al.18 and Yu v. Lara, et al.19 to
support its ruling that a case for unlawful detainer was appropriate.
On March 14, 2005, the Court of Appeals reversed the RTC and MeTC
decisions.20 It ruled that the respondents’ possession of the land was
not by the petitioner or his lessor’s tolerance. It defined tolerance not
merely as the silence or inaction of a lawful possessor when another
occupies his land; tolerance entailed permission from the owner by
reason of familiarity or neighborliness. The petitioner, however,
alleged that the respondents unlawfully entered the property; thus,
tolerance (or authorized entry into the property) was not alleged and
there could be no case for unlawful detainer. The respondents’
allegation that they had been in possession of the land before the
petitioner’s lessor had acquired it in 1991 supports this finding. Having
been in possession of the land for more than a year, the respondents
should not be evicted through an ejectment case.
The Court of Appeals emphasized that ejectment cases are summary
proceedings where the only issue to be resolved is who has a better
right to the physical possession of a property. The petitioner’s claim,
on the other hand, is based on an accion publiciana: he asserts his
right as a possessor by virtue of a contract of lease he contracted after
the respondents had occupied the land. The dispositive part of the
decision reads:
WHEREFORE, the instant petition is GRANTED. The decision dated
October 8, 2003 of the RTC, Branch 257, Parañaque City, in Civil
Case No. 03-0127, is REVERSED and SET ASIDE and the amended
complaint for ejectment is DISMISSED.21
The petitioner filed a motion for reconsideration,22 which the Court of
Appeals denied in its resolution23 of August 22, 2005. In the present
appeal, the petitioner raises before us the following issues:
I as his possession was permitted by the plaintiff on account of an
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
HOLDING THAT THE CAUSE OF ACTION OF THE SUBJECT
COMPLAINT IS NOT FOR UNLAWFUL DETAINER BUT FOR
RECOVERY OF POSSESSION AND THEREFORE DISMISSIBLE
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
DECIDING THE CASE BASED ON RESPONDENTS’ MATERIAL
CHANGE OF THEORY WHICH IS COMPLETELY INCONSISTENT
WITH THEIR DEFENSES INVOKED BEFORE THE MUNICIPAL
TRIAL COURT
III
WHETHER OR NOT THIS HONORABLE COURT MAY DECIDE
THIS CASE ON THE MERITS TO AVOID CIRCUITOUS
PROCEDURE IN THE ADMINISTRATION OF JUSTICE.24
The Court’s Ruling
We find the petition unmeritorious.
Unlawful detainer is not the proper
remedy for the present case.
The key issue in this case is whether an action for unlawful detainer is
the proper remedy.
Unlawful detainer is a summary action for the recovery of possession
of real property. This action may be filed by 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. In
unlawful detainer, the possession of the defendant was originally legal,
express or implied contract between them. However, the defendant’s
possession became illegal when the plaintiff demanded that the
defendant vacate the subject property due to the expiration or
termination of the right to possess under the contract, and the
defendant refused to heed such demand. A case for unlawful detainer
must be instituted one year from the unlawful withholding of
possession.25
The allegations in the complaint determine both the nature of the
action and the jurisdiction of the court. The complaint must specifically
allege the facts constituting unlawful detainer. In the absence of these
allegations of facts, an action for unlawful detainer is not the proper
remedy and the municipal trial court or the MeTC does not have
jurisdiction over the case.26
In his amended complaint, the petitioner presents the following
allegations in support of his unlawful detainer complaint:
3. On April 1, 1999, plaintiff leased from lessor, Mr. Rudy Chuasing,
that parcel of lot owned and registered in the lessor’s name, covering
the area occupied by the defendants.
xxxx
6. Plaintiff’s lessor had acquired the subject property as early as 1991
through sale, thereafter the aforesaid Transfer Certificate of Title was
subsequently registered under his name.
7. Defendants, having been fully aware of their unlawful occupancy of
the subject lot, have defiantly erected their houses thereat without
benefit of any contract or law whatsoever, much less any building
permit as sanctioned by law, but by mere tolerance of its true, lawful
and registered owner, plaintiff’s lessor.
8. By reason of defendants’ continued unlawful occupancy of the
subject premises, plaintiff referred the matter to his lawyer who
immediately sent a formal demand upon each of the defendants to
vacate the premises. Copies of the demand letter dated 28 April 1999
are xxx hereto attached as annexes "C" to "QQ."
9. Despite notice, however, defendants failed and refused and
continues to fail and refuse to vacate the premises without valid or
legal justification.27 (emphasis ours)
The petitioner’s allegations in the amended complaint run counter to
the requirements for unlawful detainer. In an unlawful detainer action,
the possession of the defendant was originally legal and his
possession was permitted by the owner through an express or implied
contract.
In this case, paragraph 7 makes it clear that the respondents’
occupancy was unlawful from the start and was bereft of contractual
or legal basis. In an unlawful detainer case, the defendant’s
possession becomes illegal only upon the plaintiff’s demand for the
defendant to vacate the property and the defendant’s subsequent
refusal. In the present case, paragraph 8 characterizes the
defendant’s occupancy as unlawful even before the formal demand
letters were written by the petitioner’s counsel. Under these
allegations, the unlawful withholding of possession should not be
based on the date the demand letters were sent, as the alleged
unlawful act had taken place at an earlier unspecified date.
The petitioner nevertheless insists that he properly alleged that the
respondents occupied the premises by mere tolerance of the owner.
No allegation in the complaint nor any supporting evidence on record,
however, shows when the respondents entered the property or who
had granted them permission to enter. Without these allegations and
evidence, the bare claim regarding "tolerance" cannot be upheld.
In Sarona, et al. v. Villegas, et al.,28 the Court cited Prof. Arturo M.
Tolentino’s definition and characterizes "tolerance" in the following
manner:
Professor Arturo M. Tolentino states that acts merely tolerated are
"those which by reason of neighborliness or familiarity, the owner of
property allows his neighbor or another person to do on the property;
they are generally those particular services or benefits which one’s
property can give to another without material injury or prejudice to the
owner, who permits them out of friendship or courtesy." He adds that:
"they are acts of little disturbances which a person, in the interest of
neighborliness or friendly relations, permits others to do on his
property, such as passing over the land, tying a horse therein, or
getting some water from a well." And, Tolentino continues, even
though "this is continued for a long time, no right will be acquired by
prescription." Further expounding on the concept, Tolentino writes:
"There is tacit consent of the possessor to the acts which are merely
tolerated. Thus, not every case of knowledge and silence on the part
of the possessor can be considered mere tolerance. By virtue of
tolerance that is considered as an authorization, permission or license,
acts of possession are realized or performed. The question reduces
itself to the existence or non-existence of the permission. [citations
omitted; italics supplied]
The Court has consistently adopted this position: tolerance or
permission must have been present at the beginning of possession; if
the possession was unlawful from the start, an action for unlawful
detainer would not be the proper remedy and should be dismissed. 29
It is not the first time that this Court adjudged contradictory statements
in a complaint for unlawful detainer as a basis for dismissal. In Unida
v. Heirs of Urban,30 the claim that the defendant’s possession was
merely tolerated was contradicted by the complainant’s allegation that
the entry to the subject property was unlawful from the very beginning.
The Court then ruled that the unlawful detainer action should fail.
The contradictory statements in the complaint are further deemed
suspicious when a complaint is silent regarding the factual
circumstances surrounding the alleged tolerance. In Ten Forty Realty
Corporation v. Cruz,31 the complaint simply stated that: "(1) defendant
immediately occupied the subject property after its sale to her, an
action merely tolerated by the plaintiff; and (2) the respondent’s
allegedly illegal occupation of the premises was by mere tolerance."
The Court expressed its qualms over these averments of fact as they
did not contain anything substantiating the claim that the plaintiff
tolerated or permitted the occupation of the property by the defendant:
These allegations contradict, rather than support, plaintiff’s theory that
its cause of action is for unlawful detainer. First, these arguments
advance the view that defendant’s occupation of the property was
unlawful at its inception. Second, they counter the essential
requirement in unlawful detainer cases that plaintiff’s supposed act of
sufferance or tolerance must be present right from the start of a
possession that is later sought to be recovered.
As the bare allegation of plaintiff’s tolerance of defendant’s occupation
of the premises has not been proven, the possession should be
deemed illegal from the beginning. Thus, the CA correctly ruled that
the ejectment case should have been for forcible entry — an action
that had already prescribed, however, when the Complaint was filed
on May 12, 1999. The prescriptive period of one year for forcible entry
cases is reckoned from the date of defendant’s actual entry into the
land, which in this case was on April 24, 1998.32
Similarly, in Go, Jr. v. Court of Appeals,33 the Court considered the
owner’s lack of knowledge of the defendant’s entry of the land to be
inconsistent with the allegation that there had been tolerance.
In Padre v. Malabanan,34 the Court not only required allegations
regarding the grant of permission, but proof as well. It noted that the
plaintiffs alleged the existence of tolerance, but ordered the dismissal
of the unlawful detainer case because the evidence was "totally
wanting as to when and under what circumstances xxx the alleged
tolerance came about." It stated that:
Judging from the respondent’s Answer, the petitioners were never at
all in physical possession of the premises from the time he started
occupying it and continuously up to the present. For sure, the
petitioners merely derived their alleged prior physical possession only
on the basis of their Transfer Certificate of Title (TCT), arguing that the
issuance of said title presupposes their having been in possession of
the property at one time or another.35
Thus, the complainants in unlawful detainer cases cannot simply
anchor their claims on the validity of the owner’s title. Possession de
facto must also be proved.
As early as the 1960s, in Sarona, et al. v. Villegas, et al.,36 we already
ruled that a complaint which fails to positively aver any overt act on
the plaintiff’s part indicative of permission to occupy the land, or any
showing of such fact during the trial is fatal for a case for unlawful
detainer. As the Court then explained, a case for unlawful detainer
alleging tolerance must definitely establish its existence from the start
of possession; otherwise, a case for forcible entry can mask itself as
an action for unlawful detainer and permit it to be filed beyond the
required one-year prescription period from the time of forcible entry:
A close assessment of the law and the concept of the word "tolerance"
confirms our view heretofore expressed that such tolerance must be
present right from the start of possession sought to be recovered, to
categorize a cause of action as one of unlawful detainer — not of
forcible entry. Indeed, to hold otherwise would espouse a dangerous
doctrine. And for two reasons: First. Forcible entry into the land is an
open challenge to the right of the possessor. Violation of that right
authorizes the speedy redress — in the inferior court — provided for
in the rules. If one year from the forcible entry is allowed to lapse
before suit is filed, then the remedy ceases to be speedy; and the
possessor is deemed to have waived his right to seek relief in the
inferior court. Second. If a forcible entry action in the inferior court is
allowed after the lapse of a number of years, then the result may well
be that no action of forcible entry can really prescribe. No matter how
long such defendant is in physical possession, plaintiff will merely
make a demand, bring suit in the inferior court — upon plea of
tolerance to prevent prescription to set in — and summarily throw him
out of the land. Such a conclusion is unreasonable. Especially if we
bear in mind the postulates that proceedings of forcible entry and
unlawful detainer are summary in nature, and that the one year time-
bar to the suit is but in pursuance of the summary nature of the
action.37 (italics supplied)
Given these rulings, it would be equally dangerous for us to deprive
the respondents of possession over a property that they have held for
at least eight years before the case was filed in 1999, by means of a
summary proceeding, simply because the petitioner used the word
"tolerance" without sufficient allegations or evidence to support it.
There was no change in the
respondents’ theory during
the appeal that would amount
to a deprivation of the petitioner’s
right to due process.
The petitioner alleges that the respondents had never questioned
before the MeTC the fact that their occupancy was by tolerance. The
only issues the respondents allegedly raised were: (1) the title to the
property is spurious; (2) the petitioner’s predecessor is not the true
owner of the property in question; (3) the petitioner’s lease contract
was not legally enforceable; (4) the petitioner was not the real party-
in-interest; (5) the petitioner’s predecessor never had prior physical
possession of the property; and (6) the respondents’ right of
possession was based on the "Deed of Assignment of Real Property"
executed by Dulfo. The respondents raised the issue of tolerance
merely on appeal before the RTC. They argue that this constitutes a
change of theory, which is disallowed on appeal.38
It is a settled rule that a party cannot change his theory of the case or
his cause of action on appeal. Points of law, theories, issues and
arguments not brought to the attention of the lower court will not be
considered by the reviewing court. The defenses not pleaded in the
answer cannot, on appeal, change fundamentally the nature of the
issue in the case. To do so would be unfair to the adverse party, who
had no opportunity to present evidence in connection with the new
theory; this would offend the basic rules of due process and fair play.39
While this Court has frowned upon changes of theory on appeal, this
rule is not applicable to the present case. The Court of Appeals
dismissed the action due the petitioner’s failure to allege and prove
the essential requirements of an unlawful detainer case. In Serdoncillo
v. Spouses Benolirao,40 we held that:
In this regard, to give the court jurisdiction to effect the ejectment of
an occupant or deforciant on the land, it is necessary that the
complaint must sufficiently show such a statement of facts as to bring
the party clearly within the class of cases for which the statutes provide
a remedy, without resort to parol testimony, as these proceedings are
summary in nature. In short, the jurisdictional facts must appear on the
face of the complaint. When the complaint fails to aver facts
constitutive of forcible entry or unlawful detainer, as where it does not
state how entry was effected or how and when dispossession started,
the remedy should either be an accion publiciana or accion
reivindicatoria. (emphasis ours; italics supplied)
Regardless of the defenses raised by the respondents, the petitioner
was required to properly allege and prove when the respondents
entered the property and that it was the petitioner or his predecessors,
not any other persons, who granted the respondents permission to
enter and occupy the property. Furthermore, it was not the
respondents’ defense that proved fatal to the case but the petitioner’s
contradictory statements in his amended complaint which he even
reiterated in his other pleadings.41
Although the respondents did not use the word "tolerance" before the
MeTC, they have always questioned the existence of the petitioner’s
tolerance. In their Answer to Amended Complaint, the respondents
negated the possibility of their possession of the property under the
petitioner and his lessor’s tolerance when the respondents alleged to
have occupied the premises even before the lessor acquired the
property in 1991. They said as much in their Position Paper:
RODOLFO CHUA SING never had actual physical possession of his
supposed property, as when he became an owner of the 1,919 square
meters property described in TCT No. 52594, the property had already
been occupied by herein DEFENDANTS since late 1970. Therefore,
DEFENDANTS were already occupants/possessors of the property
from where they are being ejected by FIORELLO JOSE, a supposed
LESSEE of a property with a dubious title. The main thing to be proven
in the case at bar is prior possession and that the same was lost
through force, intimidation, threat, strategy and stealth, so that it
behooves the court to restore possession regardless of title or even
ownership xxx. In the case at bar, neither RODOLFO CHUA SING nor
herein PLAINTIFF ever had any actual physical possession of the
property where DEFENDANTS have already possessed for more than
ten (10) years in 1991 when RODOLFO CHUA SING got his fake title
to the property.42 (citation omitted)
In addition, whether or not it was credible, the respondent’s claim that
their possession was based on the Deed of Assignment executed by
Dulfo, in behalf of the estate of Domingo de Ocampo, shows that they
considered the petitioner and his lessor as strangers to any of their
transactions on the property, and could not have stayed there upon
the latter’s permission.
We note that even after the issue of tolerance had been directly raised
by the respondents before the RTC, the petitioner still failed to address
it before the RTC, the Court of Appeals, and the Supreme Court. 43 At
best, he belatedly states for the first time in his Memorandum 44 before
this Court that his lessor had tolerated the respondents’ occupancy of
the lot, without addressing the respondents’ allegation that they had
occupied the lot in 1970, before the petitioner’s lessor became the
owner of the property in 1991, and without providing any other details.
His pleadings continued to insist on the existence of tolerance without
providing the factual basis for this conclusion. Thus, we cannot declare
that the Court of Appeals had in anyway deprived the petitioner of due
process or had unfairly treated him when it resolved the case based
on the issue of tolerance.
The Court cannot treat an ejectment
case as an accion publiciana or
accion reivindicatoria.
The petitioner argues that assuming this case should have been filed
as an accion publiciana or accion reivindicatoria, this Court should still
resolve the case, as requiring him to properly refile the case serves no
other ends than to comply with technicalities.45
The Court cannot simply take the evidence presented before the
MeTC in an ejectment case and decide it as an accion publiciana or
accion reivindicatoria. These cases are not interchangeable and their
differences constitute far more than mere technicalities.
In Regis, Jr. v. Court of Appeals,46 we ruled that an action for forcible
entry cannot be treated as an accion publiciana and summarized the
reasons therefor. We find these same reasons also applicable to an
unlawful detainer case which bears the same relevant characteristics:
On the issue of whether or not an action for forcible entry can be
treated as accion publiciana, we rule in the negative. Forcible entry is
distinct from accion publiciana. First, forcible entry should be filed
within one year from the unlawful dispossession of the real property,
while accion publiciana is filed a year after the unlawful dispossession
of the real property. Second, forcible entry is concerned with the issue
of the right to the physical possession of the real property; in accion
publiciana, what is subject of litigation is the better right to possession
over the real property. Third, an action for forcible entry is filed in the
municipal trial court and is a summary action, while accion publiciana
is a plenary action in the RTC. [italics supplied]
The cause of action in ejectment is different from that in an accion
publiciana or accion reivindicatoria. An ejectment suit is brought
before the proper inferior court to recover physical possession only or
possession de facto, not possession de jure. Unlawful detainer and
forcible entry cases are not processes to determine actual title to
property. Any ruling by the MeTC on the issue of ownership is made
only to resolve the issue of possession, and is therefore
inconclusive.47 Because they only resolve issues of possession de
facto, ejectment actions are summary in nature, while accion
publiciana (for the recovery of possession) and accion reivindicatoria
(for the recovery of ownership) are plenary actions.48 The purpose of
allowing actions for forcible entry and unlawful detainer to be decided
in summary proceedings is to provide for a peaceful, speedy and
expeditious means of preventing an alleged illegal possessor of
property from unjustly taking and continuing his possession during the
long period it would take to properly resolve the issue of possession
de jure or ownership, thereby ensuring the maintenance of peace and
order in the community; otherwise, the party illegally deprived of
possession might take the law in his hands and seize the property by
force and violence.49 An ejectment case cannot be a substitute for a
full-blown trial for the purpose of determining rights of possession or
ownership. Citing Mediran v. Villanueva,50 the Court in Gonzaga v.
Court of Appeals51 describes in detail how these two remedies should
be used:
Thus, if we allow parties to file ejectment cases and later consider
them as an accion publiciana or accion reivindicatoria, we would
encourage parties to simply file ejectment cases instead of plenary
actions. Courts would then decide in summary proceedings cases
which the rules intend to be resolved through full-blown trials. Because
these "summary" proceedings will have to tackle complicated issues
requiring extensive proof, they would no longer be expeditious and
would no longer serve the purpose for which they were created.
Indeed, we cannot see how the resulting congestion of cases, the
hastily and incorrectly decided cases, and the utter lack of system
would assist the courts in protecting and preserving property rights.
WHEREFORE, we DENY the petition, and AFFIRM the Court of
Appeals' decision dated March 14, 2005 and resolution dated August
22, 2005 in CA-G.R. SP No. 80116.
SO ORDERED.

In giving recognition to the action of forcible entry and detainer the

purpose of the law is to protect the person who in fact has actual
possession; and in case of controverted right, it requires the parties to
preserve the status quo until one or the other of them sees fit to invoke
the decision of a court of competent jurisdiction upon the question of
ownership. It is obviously just that the person who has first acquired
possession should remain in possession pending the decision; and
the parties cannot be permitted meanwhile to engage in a petty
warfare over the possession of the property which is the subject of
dispute. To permit this would be highly dangerous to individual security
and disturbing to social order.1âwphi1 Therefore, where a person
supposes himself to be the owner of a piece of property and desires
to vindicate his ownership against the party actually in possession, it
is incumbent upon him to institute an action to this end in a court of
competent jurisdiction; and he cannot be permitted, by invading the
property and excluding the actual possessor, to place upon the latter
the burden of instituting an action to try the property right. [italics
supplied]
January 27, 2016
G.R. No. 217694
FAIRLAND KNITCRAFT CORPORATION, Petitioner,
vs. ARTURO LOO PO, Respondent.
This is a petition for review on certiorari1 seeking to reverse and set
aside the October 31, 2014 Decision2 and the March 6, 2015
Resolution3 of the Court of Appeals (CA), in CA-G.R. SP No. 134701
which affirmed the September 16, 2013 Decision4 of the Regional Trial
Court of Pasig City, Branch 67 (RTC) in SCA Case No. 3831. The
RTC decision, in turn, sustained the March 21, 2013 Decision 5 of the
Metropolitan Trial Court, Branch 72, Pasig City (MeTC), which
dismissed the unlawful detainer case filed by petitioner Fairland
Knitcraft Corporation (Fairland) against respondent Arturo Loo
Po (Po) for failure to prove its case by preponderance of evidence.
The Antecedents
In a complaint6 for unlawful detainer, docketed as Civil Case No.
19429, filed before the MeTC, Fairland alleged that it was the owner
of Condominium Unit No. 205 in Cedar Mansion II on Ma. Escriba
Street, Pasig City. The said unit was leased by Fairland to Po by verbal
agreement, with a rental fee of P20,000.00 a month, to be paid by Po
at the beginning of each month. From March 2011, Po had
continuously failed to pay rent. For said reason, Fairland opted not to
renew the lease agreement anymore.
On January 30, 2012, Fairland sent a formal letter 7 to Po demanding
that he pay the amount of P220,000.00, representing the rental
arrears, and that he vacate the leased premises within fifteen (15)
days from the receipt of the letter. Despite receipt of the demand letter
and the lapse of the said 15-day period to comply, Po neither tendered
payment for the unpaid rent nor vacated the premises. Thus, on
December 12, 2012, Fairland was constrained to file the complaint for
unlawful detainer before the MeTC. Po had until January 7, 2013 to
file his answer but he failed to do so. Hence, on February 6, 2013,
Fairland filed a motion to render judgment.8
In its February 21, 2013 Order,9 the MeTC considered the case
submitted for decision.
On March 1, 2013, Po’s counsel filed his Entry of Appearance with
Motion for Leave of Court to file Comment/Opposition to Motion to
Render Judgment.10 In the attached Comment/Opposition, Po denied
the allegations against him and commented that there was no
supporting document that would show that Fairland owned the
property; that there was no lease contract between them; that there
were no documents attached to the complaint which would show that
previous demands had been made and received by him; that the
alleged unpaid rental was P220,000.00, but the amount of damages
being prayed for was P440,000.00; that the issue in the case was one
of ownership; and that it was the RTC which had jurisdiction over the
case.
The MeTC treated the comment/opposition as Po’s answer to the
complaint. Considering, however, that the case fell under the Rules of
Summary Procedure, the same was deemed filed out of time. Hence,
the motion was denied.11
The Ruling of the Metropolitan Trial Court
In its March 21, 2013 Decision, the MeTC dismissed the complaint for
lack of merit due to Fairland’s failure to prove its claim by
preponderance of evidence. The MeTC explained that although the
complaint sufficiently alleged a cause of action, Fairland failed to prove
that it was entitled to the possession of the subject property. There
was no evidence presented to support its claim against Po either.
Aggrieved, Fairland seasonably filed its appeal before the RTC under
Rule 40 of the Rules of Court. Being an appealed case, the RTC
required the parties to submit their respective memoranda.
In its memorandum,12 Fairland argued that an unlawful detainer case
was a special civil action governed by summary procedure. In cases
where a defendant failed to file his answer, there was no need for a
declaration of default. Fairland claimed that the Rules stated that in
such cases, judgment should be based on the “facts alleged in the
complaint,”13 and that there was no requirement that judgment must
be based on facts proved by preponderance of evidence. Considering
that the presentation of evidence was not required when a defendant
in an ejectment case failed to appear in a preliminary conference, the
same should be applied when no answer had been filed.
Fairland continued that the failure to file an answer in an ejectment
case was tantamount to an admission by the defendant of all the
ultimate facts alleged in the complaint. There was no more need for
evidence in such a situation as every allegation of ultimate facts in the
complaint was deemed established by the defendant’s acquiescence.
On July 18, 2013, Po filed his memorandum 14 and countered that
there was no merit in Fairland’s insistence that evidence was
unnecessary when no answer had been filed. The facts stated in the
complaint did not warrant a rendition of judgment in the plaintiff’s favor.
The court had the discretion to rule on the pleadings based on its
evaluation of the allegation of facts.
Further, all the statements in the complaint were mere allegations
which were not substantiated by any competent evidence. Po asserted
that there was no proof presented to show that the subject property
was indeed owned by Fairland; that there was no lease contract
between the parties; that he never received the demand letter, dated
January 30, 2012; and that the amount stated in the prayer of the
complaint did not coincide with the amount of unpaid rent. Po also
reiterated that the case involved an issue of ownership over the
condominium unit he was occupying.
The Ruling of the Regional Trial Court
On September 16, 2013, the RTC affirmed the MeTC ruling and
agreed that Fairland failed to establish its case by preponderance of
evidence. There was nothing on record that would establish Fairland’s
right over the property subject of the complaint. Though it had been
consistently ruled that the only issue for resolution in an ejectment
case was the physical or material possession of the property involved,
independent of any claim of ownership by any of the party-litigants,
the court may go beyond the question of physical possession
provisionally. The RTC concluded that even assuming that Po was not
the lawful owner, his actual physical possession of the subject
property created the presumption that he was entitled to its possession
thereof.
Fairland filed a motion for reconsideration15 attaching its condominium
certificate of title16 over the subject property, but it was denied by the
RTC in its Order,17 dated February 24, 2014.
Undaunted, Fairland filed a petition for review18 under Rule 42 of the
Rules of Court before the CA.
The Ruling of the Court of Appeals
In the assailed Decision, dated October 31, 2014, the CA dismissed
the petition and ruled that an action for unlawful detainer would not lie
against Po. Notwithstanding the abbreviated proceeding it ordained
and the limited pleadings it allowed, the Rules on Summary Procedure
did not relax the rules on evidence. In order for an action for recovery
of possession to prosper, it was indispensable that he who brought the
action should prove not only his ownership but also the identity of the
property claimed. The CA concluded, however, that Fairland failed to
discharge such bounden duty.
Fairland filed its motion for reconsideration, but it was denied by the
CA in its assailed Resolution, dated March 6, 2015.
Hence, this petition.
ARGUMENTS/DISCUSSIONS
I
IN AN EJECTMENT CASE WHEREIN NO ANSWER WAS
SEASONABLY FILED, IT IS AN ERROR OF LAW TO BASE
JUDGMENT ON PREPONDERANCE OF EVIDENCE
II
HOLDING THAT EVIDENCE IN AN EJECTMENT CASE SHOULD
HAVE BEEN ATTACHED TO THE COMPLAINT IS AN ERROR OF
LAW.19
Fairland argues that in ejectment cases, presentation of evidence was
undertaken through the submission of position papers but the same
was dispensed with when the defendant failed to file an answer or
when either party failed to appear during the preliminary conference.
In an ejectment case, the scope of inquiry should be limited to the
sufficiency of the cause of action stated in the complaint when no
seasonable answer was filed. The attachment of documentary
evidence to the Complaint was not a requirement and was even
proscribed by law.
In his Comment,20 Po countered that the present petition raised a
question of fact. Although couched in different words, the issues raised
here were substantially the same as the issues raised before the CA.
There was no legal basis in Fairland’s assertion that evidence was
dispensed with when no answer to the complaint had been filed. Such
argument would undermine the inherent authority of the courts to
resolve legal issues based on the facts of the case and on the rules
on evidence. Contrary to Fairland’s position, the court decided the
case on the basis of the complaint which was found wanting in
preponderance of evidence.
In its Reply,21 Fairland posited that the petition did not raise mere
questions of fact but one of law as what was being sought for review
was the erroneous dismissal of the ejectment case for lack of
preponderance of evidence. Since no answer was filed and the
complaint sufficiently alleged a cause of action for unlawful detainer, it
became the duty of the MeTC to decide the case in its favor.
The Court’s Ruling
The petition is meritorious.
Complaint has a valid cause of action for Unlawful Detainer
Section 1 of Rule 70 of the Rules of Court lays down the requirements
for filing a complaint for unlawful detainer, to wit:
Section 1. – Who may institute proceedings, and when. –
Subject to the provision of the next succeeding section, a
person deprived of the possession of any land or building by
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.1âwphi1
Stated differently, unlawful detainer is a summary action for the
recovery of possession of real property. This action may be filed by a
lessor, vendor, vendee, or other person from 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. The possession of the defendant was originally
legal, as his possession was permitted by the plaintiff on account of
an express or implied contract between them. The defendant’s
possession, however, became illegal when the plaintiff demanded that
the defendant vacate the subject property due to the expiration or
termination of the right to possess under the contract, and the
defendant refused to heed such demand. A case for unlawful detainer
must be instituted one year from the unlawful withholding of
possession.22
A complaint sufficiently alleges a cause of action for unlawful detainer
if it recites the following: (1) initially, possession of the property by the
defendant was by contract with or by tolerance of the plaintiff; (2)
eventually, such possession became illegal upon notice by the plaintiff
to the defendant of the termination of the latter’s right of possession;
(3) thereafter, the defendant remained in possession of the property,
and deprived the plaintiff of the enjoyment thereof; and (4) within one
(1) year from the last demand on defendant to vacate the property, the
plaintiff instituted the complaint for ejectment.23
There is no question that the complaint filed by Fairland adequately
alleged a cause of action for unlawful detainer. The pertinent portion
of the said complaint reads:
xxx
3. Plaintiff is the owner of, and had been leasing to the
defendant, the premises mentioned above as the residence of
the latter;
4. There is no current written lease contract between plaintiff
and the defendant, but the latter agreed to pay the former the
amount of Php20,000.00 as rent at the beginning of each
month. Thus, the term of the lease agreement is renewable
on a month-to-month basis;
5. Since March 2011, defendant has not been paying the
aforesaid rent despite plaintiff’s repeated demands;
6. Due to defendant’s continuous failure to pay rent, plaintiff
reached a decision not to renew the lease agreement. It sent
a formal letter, x x x demanding defendant to pay the amount
of Php220,000.00, representing defendant’s twelve month
rental arrears beginning January 2011, and to vacate the
leased premises, both within fifteen (15) days from receipt of
said letter;
7. Despite receipt of the aforesaid demand letter and lapse of
the fifteen day period given to comply with plaintiff’s demand,
defendant neither tendered payment for the unpaid rent nor
vacated the leased premises. Worse, defendant has not been
paying rent up to now;
x x x24
The above-cited portions of the complaint sufficiently alleged that
Fairland was the owner of the subject property being leased to Po by
virtue of an oral agreement. There was a demand by Fairland for Po
to pay rent and vacate before the complaint for unlawful detainer was
instituted. The complaint was seasonably filed within the one-year
period prescribed by law. With all the elements present, there was
clearly a cause of action in the complaint for unlawful detainer.
Under the Rules of Summary Procedure, the weight of evidence is not
considered when a judgment is rendered based on the complaint
The question now is whether the MeTC correctly dismissed the case
for lack of preponderance of evidence. Fairland posits that judgment
should have been rendered in its favor on the basis of the complaint
itself and not on its failure to adduce proof of ownership over the
subject property.
The Court agrees with Fairland’s position.
The summons, together with the complaint and its annexes, was
served upon Po on December 28, 2012. This presupposes that the
MeTC found no ground to dismiss the action for unlawful
detainer.25 Nevertheless, Po failed to file his answer on time and the
MeTC had the option to render judgment motu proprio or on motion of
the plaintiff. In relation thereto, Sections 5 and 6 of the Rules on
Summary Procedure provide:
Sec. 5. Answer. – Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy
thereof on the plaintiff. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except for lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred. The answer to
counterclaims or cross-claims shall be filed and served within ten (10)
days from service of the answer in which they are pleaded.
Sec. 6. Effect of failure to answer. – Should the defendant fail to
answer the complaint within the period above provided, the court,
motu proprio or on motion of the plaintiff, shall render judgment as
may be warranted by the facts alleged in the complaint and
limited to what is prayed for therein. The court may in its discretion
reduce the amount of damages and attorney’s fees claimed for being
excessive or otherwise unconscionable, without prejudice to the
applicability of Section 4, Rule 18 of the Rules of Court, if there are
two or more defendants.
[Emphasis Supplied]
Section 6 is clear that in case the defendant failed to file his answer,
the court shall render judgment, either motu proprio or upon plaintiff’s
motion, based solely on the facts alleged in the complaint and
limited to what is prayed for. The failure of the defendant to timely
file his answer and to controvert the claim against him constitutes his
acquiescence to every allegation stated in the complaint. Logically,
there is nothing to be done in this situation26except to render judgment
as may be warranted by the facts alleged in the complaint.27
Similarly, under Section 7, Rule 70 of the Rules of Court, which
governs the rules for forcible entry and unlawful detainer, if the
defendant fails to answer the complaint within the period provided, the
court has no authority to declare the defendant in default. Instead, the
court, motu proprio or on motion of the plaintiff, shall render judgment
as may be warranted by the facts alleged in the complaint and
limited to what is prayed for.28
This has been enunciated in the case of Don Tino Realty and
Development Corporation v. Florentino,29 citing Bayog v.
Natino,30 where the Court held that there was no provision for an entry
of default under the Rules of Summary Procedure if the defendant
failed to file his answer.
In this case, Po failed to file his answer to the complaint despite proper
service of summons. He also failed to provide a sufficient justification
to excuse his lapses.1âwphi1 Thus, as no answer was filed, judgment
must be rendered by the court as may be warranted by the facts
alleged in the complaint.
Failure to attach annexes is not fatal if the complaint alleges a
sufficient cause of action; evidence need not be attached to the
complaint
The lower courts erroneously dismissed the complaint of Fairland
simply on the ground that it failed to establish by preponderance of
evidence its ownership over the subject property. As can be gleaned
above, the rules do not compel the plaintiff to attach his evidence to
the complaint because, at this inception stage, he only has to file his
complaint to establish his cause of action. Here, the court was only
tasked to determine whether the complaint of Fairland alleged a
sufficient cause of action and to render judgment thereon.
Also, there was no need to attach proof of ownership in the complaint
because the allegations therein constituted a sufficient cause of action
for unlawful detainer. Only when the allegations in the complaint are
insufficient to form a cause of action shall the attachment become
material in the determination thereof. Even under Section 4 of the
Rules of Summary Procedure,31 it is not mandatory to attach annexes
to the complaint.
In the case of Lazaro v. Brewmaster32 (Lazaro), where judgment was
rendered based on the complaint due to the failure of the defendant to
file an answer under the Rules of Summary Procedure, it was written
that:
xxx To determine whether the complaint states a cause of action, all
documents attached thereto may, in fact, be considered, particularly
when referred to in the complaint. We emphasize, however, that the
inquiry is into the sufficiency, not the veracity of the material
allegations in the complaint. Thus, consideration of the annexed
documents should only be taken in the context of ascertaining
the sufficiency of the allegations in the complaint.
[Emphasis Supplied]
In Lazaro, the assailed invalid invoices attached to the complaint were
not considered because the complaint already alleged a sufficient
cause of action for collection of sum of money. Those assailed
documents were not the bases of the plaintiff’s action for sum of
money, but were only attached to the complaint to provide evidentiary
details on the alleged transactions.
Similarly, in the case at bench, there was no need for documentary
attachments to prove Fairland’s ownership over the subject
property. First, the present action is an action for unlawful detainer
wherein only de facto or material possession is required to be alleged.
Evidently, the attachment of any deed of ownership to the complaint
is not indispensable because an action for unlawful detainer does not
entirely depend on ownership.
Second, Fairland sufficiently alleged ownership and superior right of
possession over the subject property. These allegations were
evidently manifest in the complaint as Fairland claimed to have orally
agreed to lease the property to Po. The Court is of the view that these
allegations were clear and unequivocal and did not need supporting
attachments to be considered as having sufficiently established its
cause of action. Even the MeTC conceded that the complaint of
Fairland stated a valid cause of action for unlawful detainer. 33 It must
be stressed that inquiry into the attached documents in the complaint
is for the sufficiency, not the veracity, of the material allegations in the
complaint.
Third, considering that Po failed to file an answer within the prescribed
period, he was deemed to have admitted all the allegations in the
complaint including Fairland’s claim of ownership. To reiterate, the
failure of the defendant to timely file his answer and controvert the
claim against him constituted his acquiescence to every allegation
stated in the complaint.
In the Entry of Appearance with Motion for Leave of Court to file
Comment/Opposition to Motion to Render Judgment, which was
belatedly filed and so was denied by the MeTC, Po merely denied the
allegations against him without even bothering to aver why he claimed
to have a superior right of possession of the subject property. 34
Fourth, it is only at the later stage of the summary procedure when the
affidavits of witnesses and other evidence on factual issues shall be
presented before the court. Sections 8 and 9 of the Rules on Summary
Procedure state:
Sec. 8. Record of preliminary conference. – Within five (5) days after
the termination of the preliminary conference, the court shall issue an
order stating the matters taken up therein, x x x
Sec. 9. Submission of affidavits and position papers. – Within ten (10)
days from receipt of the order mentioned in the next preceding section,
the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with
their position papers setting forth the law and the facts relied upon by
them.
[Emphasis Supplied]
Again, it is worth stressing that these provisions are exactly Sections
9 and 10 under Rule 70 of the Rules of Court.
Accordingly, it is only at this part of the proceedings that the parties
will be required to present and offer their evidence before the court to
establish their causes and defenses. Before the issuance of the record
of preliminary conference, the parties are not yet required to present
their respective evidence.
These specific provisions under the Rules of Summary Procedure
which are also reflected in Rule 70 of the Rules of Court, serve their
purpose to immediately settle ejectment proceedings. “Forcible entry
and unlawful detainer cases are summary proceedings designed to
provide for an expeditious means of protecting actual possession or
the right to possession of the property involved. It does not admit of a
delay in the determination thereof. It is a ‘time procedure’ designed to
remedy the situation.35 Thus, as a consequence of the defendant’s
failure to file an answer, the court is simply tasked to render judgment
as may be warranted by the facts alleged in the complaint and limited
to what is prayed for therein.
As the complaint contains a valid cause of action, a judgment can
already be rendered
In order to achieve an expeditious and inexpensive determination of
unlawful detainer cases, a remand of this case to the lower courts is
no longer necessary and the case can be determined on its merits by
the Court.
To recapitulate, as Po failed to file his answer on time, judgment shall
be rendered based only on the complaint of Fairland without the need
to consider the weight of evidence. As discussed above, the complaint
of Fairland had a valid cause of action for unlawful detainer.
Consequently, there is no more need to present evidence to establish
the allegation of Fairland of its ownership and superior right of
possession over the subject property. Po’s failure to file an answer
constitutes an admission of his illegal occupation due to his non-
payment of rentals, and of Fairland’s rightful claim of material
possession. Thus, judgment must be rendered finding that Fairland
has the right to eject Po from the subject property.
The Judicial Affidavit Rule
On a final note, the Court deems it proper to discuss the relevance of
the Judicial Affidavit Rule or A.M. No. 12-8-8-SC, where documentary
or object evidence are required to be attached. To begin with, the rule
is not applicable because such evidence are required to be attached
to a judicial affidavit, not to a complaint. Moreover, as the rule took
effect only on January 1, 2013, it cannot be required in this case
because this was earlier filed on December 12, 2012.
Granting that it can be applied retroactively, the rule being essentially
remedial, still it has no bearing on the ruling of this Court.
In the Judicial Affidavit Rule, the attachments of documentary or object
evidence to the affidavits is required when there would be a pre-trial
or preliminary conference or the scheduled hearing. As stated
earlier, where a defendant fails to file an answer, the court shall render
judgment, either motu proprio or upon plaintiff’s motion, based solely
on the facts alleged in the complaint and limited to what is prayed for.
Thus, where there is no answer, there is no need for a pre-trial,
preliminary conference or hearing. Section 2 of the Judicial Affidavit
Rule reads:
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of
direct testimonies. - (a) The parties shall file with the court and serve
on the adverse party, personally or by licensed courier service, not
later than five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take
the place of such witnesses' direct testimonies; and
(2) The parties' docun1entary or object evidence, if any, which
shall be attached to the judicial affidavits and marked as
Exhibits A, B, C, and so on in the case of the complainant or
the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of
the respondent or the defendant.
(b) Should a party or a witness desire to keep the original document
or object evidence in his possession, he may, after the same has been
identified, marked as exhibit, and authenticated, warrant in his judicial
affidavit that the copy or reproduction attached to such affidavit is a
faithful copy or reproduction of that original. In addition, the party or
witness shall bring the original document or object evidence for
comparison during the preliminary conference with the attached copy,
reproduction, or pictures, failing which the latter shall not be admitted.
This is without prejudice to the introduction of secondary evidence in
place of the original when allowed by existing rules.
WHEREFORE, the petition is GRANTED. The October 31, 2014
Decision and the March 6, 2015 Resolution of the Court of Appeals in
CAG. R. SP No. 134701 are hereby REVERSED and SET
ASIDE. Respondent Arturo Loo Po is ORDERED TO
VACATE Condominium Unit No. 205 located in Cedar Mansion II on
Ma. Escriba Street, Pasig City.
Respondent Po is further ORDERED TO PAY the rentals-in-arrears,
as well as the rentals accruing in the interim until he vacates the
property. The unpaid rentals shall incur a legal interest of six percent
(6%) per annum from January 30, 2012, when the demand to pay and
to vacate was made, up to the finality of this decision. Thereafter, an
interest of six percent (6%) per annum shall be imposed on the total
amount due until full payment is made.
SO ORDERED.
January 27, 2016 G.R. No. 217694
FAIRLAND KNITCRAFT CORPORATION, Petitioner,
vs. ARTURO LOO PO, Respondent.
This is a petition for review on certiorari1 seeking to reverse and set
aside the October 31, 2014 Decision2 and the March 6, 2015
Resolution3 of the Court of Appeals (CA), in CA-G.R. SP No. 134701
which affirmed the September 16, 2013 Decision4 of the Regional Trial
Court of Pasig City, Branch 67 (RTC) in SCA Case No. 3831. The
RTC decision, in turn, sustained the March 21, 2013 Decision5 of the
Metropolitan Trial Court, Branch 72, Pasig City (MeTC), which
dismissed the unlawful detainer case filed by petitioner Fairland
Knitcraft Corporation (Fairland) against respondent Arturo Loo
Po (Po) for failure to prove its case by preponderance of evidence.
The Antecedents
In a complaint6 for unlawful detainer, docketed as Civil Case No.
19429, filed before the MeTC, Fairland alleged that it was the owner
of Condominium Unit No. 205 in Cedar Mansion II on Ma. Escriba
Street, Pasig City. The said unit was leased by Fairland to Po by verbal
agreement, with a rental fee of P20,000.00 a month, to be paid by Po
at the beginning of each month. From March 2011, Po had
continuously failed to pay rent. For said reason, Fairland opted not to
renew the lease agreement anymore.
On January 30, 2012, Fairland sent a formal letter 7 to Po demanding
that he pay the amount of P220,000.00, representing the rental
arrears, and that he vacate the leased premises within fifteen (15)
days from the receipt of the letter. Despite receipt of the demand letter
and the lapse of the said 15-day period to comply, Po neither tendered
payment for the unpaid rent nor vacated the premises. Thus, on
December 12, 2012, Fairland was constrained to file the complaint for
unlawful detainer before the MeTC. Po had until January 7, 2013 to
file his answer but he failed to do so. Hence, on February 6, 2013,
Fairland filed a motion to render judgment.8
In its February 21, 2013 Order,9 the MeTC considered the case
submitted for decision.
On March 1, 2013, Po’s counsel filed his Entry of Appearance with
Motion for Leave of Court to file Comment/Opposition to Motion to
Render Judgment.10 In the attached Comment/Opposition, Po denied
the allegations against him and commented that there was no
supporting document that would show that Fairland owned the
property; that there was no lease contract between them; that there
were no documents attached to the complaint which would show that
previous demands had been made and received by him; that the
alleged unpaid rental was P220,000.00, but the amount of damages
being prayed for was P440,000.00; that the issue in the case was one
of ownership; and that it was the RTC which had jurisdiction over the
case.
The MeTC treated the comment/opposition as Po’s answer to the
complaint. Considering, however, that the case fell under the Rules of
Summary Procedure, the same was deemed filed out of time. Hence,
the motion was denied.11
The Ruling of the Metropolitan Trial Court
In its March 21, 2013 Decision, the MeTC dismissed the complaint for
lack of merit due to Fairland’s failure to prove its claim by
preponderance of evidence. The MeTC explained that although the
complaint sufficiently alleged a cause of action, Fairland failed to prove
that it was entitled to the possession of the subject property. There
was no evidence presented to support its claim against Po either.
Aggrieved, Fairland seasonably filed its appeal before the RTC under
Rule 40 of the Rules of Court. Being an appealed case, the RTC
required the parties to submit their respective memoranda.
In its memorandum,12 Fairland argued that an unlawful detainer case
was a special civil action governed by summary procedure. In cases
where a defendant failed to file his answer, there was no need for a
declaration of default. Fairland claimed that the Rules stated that in
such cases, judgment should be based on the “facts alleged in the
complaint,”13 and that there was no requirement that judgment must
be based on facts proved by preponderance of evidence. Considering
that the presentation of evidence was not required when a defendant
in an ejectment case failed to appear in a preliminary conference, the
same should be applied when no answer had been filed.
Fairland continued that the failure to file an answer in an ejectment
case was tantamount to an admission by the defendant of all the
ultimate facts alleged in the complaint. There was no more need for
evidence in such a situation as every allegation of ultimate facts in the
complaint was deemed established by the defendant’s acquiescence.
On July 18, 2013, Po filed his memorandum 14 and countered that
there was no merit in Fairland’s insistence that evidence was
unnecessary when no answer had been filed. The facts stated in the
complaint did not warrant a rendition of judgment in the plaintiff’s favor.
The court had the discretion to rule on the pleadings based on its
evaluation of the allegation of facts.
Further, all the statements in the complaint were mere allegations
which were not substantiated by any competent evidence. Po asserted
that there was no proof presented to show that the subject property
was indeed owned by Fairland; that there was no lease contract
between the parties; that he never received the demand letter, dated
January 30, 2012; and that the amount stated in the prayer of the
complaint did not coincide with the amount of unpaid rent. Po also
reiterated that the case involved an issue of ownership over the
condominium unit he was occupying.
The Ruling of the Regional Trial Court
On September 16, 2013, the RTC affirmed the MeTC ruling and
agreed that Fairland failed to establish its case by preponderance of
evidence. There was nothing on record that would establish Fairland’s
right over the property subject of the complaint. Though it had been
consistently ruled that the only issue for resolution in an ejectment
case was the physical or material possession of the property involved,
independent of any claim of ownership by any of the party-litigants,
the court may go beyond the question of physical possession
provisionally. The RTC concluded that even assuming that Po was not
the lawful owner, his actual physical possession of the subject
property created the presumption that he was entitled to its possession
thereof.
Fairland filed a motion for reconsideration15 attaching its condominium
certificate of title16 over the subject property, but it was denied by the
RTC in its Order,17 dated February 24, 2014.
Undaunted, Fairland filed a petition for review18 under Rule 42 of the
Rules of Court before the CA.
The Ruling of the Court of Appeals
In the assailed Decision, dated October 31, 2014, the CA dismissed
the petition and ruled that an action for unlawful detainer would not lie
against Po. Notwithstanding the abbreviated proceeding it ordained
and the limited pleadings it allowed, the Rules on Summary Procedure
did not relax the rules on evidence. In order for an action for recovery
of possession to prosper, it was indispensable that he who brought the
action should prove not only his ownership but also the identity of the
property claimed. The CA concluded, however, that Fairland failed to
discharge such bounden duty.
Fairland filed its motion for reconsideration, but it was denied by the
CA in its assailed Resolution, dated March 6, 2015.
Hence, this petition.
ARGUMENTS/DISCUSSIONS
I The Court’s Ruling
IN AN EJECTMENT CASE WHEREIN NO ANSWER WAS
SEASONABLY FILED, IT IS AN ERROR OF LAW TO BASE
JUDGMENT ON PREPONDERANCE OF EVIDENCE
II
HOLDING THAT EVIDENCE IN AN EJECTMENT CASE SHOULD
HAVE BEEN ATTACHED TO THE COMPLAINT IS AN ERROR OF
LAW.19
Fairland argues that in ejectment cases, presentation of evidence was
undertaken through the submission of position papers but the same
was dispensed with when the defendant failed to file an answer or
when either party failed to appear during the preliminary conference.
In an ejectment case, the scope of inquiry should be limited to the
sufficiency of the cause of action stated in the complaint when no
seasonable answer was filed. The attachment of documentary
evidence to the Complaint was not a requirement and was even
proscribed by law.
In his Comment,20 Po countered that the present petition raised a
question of fact. Although couched in different words, the issues raised
here were substantially the same as the issues raised before the CA.
There was no legal basis in Fairland’s assertion that evidence was
dispensed with when no answer to the complaint had been filed. Such
argument would undermine the inherent authority of the courts to
resolve legal issues based on the facts of the case and on the rules
on evidence. Contrary to Fairland’s position, the court decided the
case on the basis of the complaint which was found wanting in
preponderance of evidence.
In its Reply,21 Fairland posited that the petition did not raise mere
questions of fact but one of law as what was being sought for review
was the erroneous dismissal of the ejectment case for lack of
preponderance of evidence. Since no answer was filed and the
complaint sufficiently alleged a cause of action for unlawful detainer, it
became the duty of the MeTC to decide the case in its favor.
The petition is meritorious.
Complaint has a valid cause of action for Unlawful Detainer
Section 1 of Rule 70 of the Rules of Court lays down the requirements
for filing a complaint for unlawful detainer, to wit:
Section 1. – Who may institute proceedings, and when. –
Subject to the provision of the next succeeding section, a
person deprived of the possession of any land or building by
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.1âwphi1
Stated differently, unlawful detainer is a summary action for the
recovery of possession of real property. This action may be filed by a
lessor, vendor, vendee, or other person from 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. The possession of the defendant was originally
legal, as his possession was permitted by the plaintiff on account of
an express or implied contract between them. The defendant’s
possession, however, became illegal when the plaintiff demanded that
the defendant vacate the subject property due to the expiration or
termination of the right to possess under the contract, and the
defendant refused to heed such demand. A case for unlawful detainer
must be instituted one year from the unlawful withholding of
possession.22
A complaint sufficiently alleges a cause of action for unlawful detainer
if it recites the following: (1) initially, possession of the property by the
defendant was by contract with or by tolerance of the plaintiff; (2)
eventually, such possession became illegal upon notice by the plaintiff
to the defendant of the termination of the latter’s right of possession;
(3) thereafter, the defendant remained in possession of the property,
and deprived the plaintiff of the enjoyment thereof; and (4) within one
(1) year from the last demand on defendant to vacate the property, the
plaintiff instituted the complaint for ejectment.23
There is no question that the complaint filed by Fairland adequately
alleged a cause of action for unlawful detainer. The pertinent portion
of the said complaint reads:
xxx
3. Plaintiff is the owner of, and had been leasing to the
defendant, the premises mentioned above as the residence of
the latter;
4. There is no current written lease contract between plaintiff
and the defendant, but the latter agreed to pay the former the
amount of Php20,000.00 as rent at the beginning of each
month. Thus, the term of the lease agreement is renewable
on a month-to-month basis;
5. Since March 2011, defendant has not been paying the
aforesaid rent despite plaintiff’s repeated demands;
6. Due to defendant’s continuous failure to pay rent, plaintiff
reached a decision not to renew the lease agreement. It sent
a formal letter, x x x demanding defendant to pay the amount
of Php220,000.00, representing defendant’s twelve month
rental arrears beginning January 2011, and to vacate the
leased premises, both within fifteen (15) days from receipt of
said letter;
7. Despite receipt of the aforesaid demand letter and lapse of
the fifteen day period given to comply with plaintiff’s demand,
defendant neither tendered payment for the unpaid rent nor
vacated the leased premises. Worse, defendant has not been
paying rent up to now;
 x x x24
The above-cited portions of the complaint sufficiently alleged that
Fairland was the owner of the subject property being leased to Po by
virtue of an oral agreement. There was a demand by Fairland for Po
to pay rent and vacate before the complaint for unlawful detainer was
instituted. The complaint was seasonably filed within the one-year
period prescribed by law. With all the elements present, there was
clearly a cause of action in the complaint for unlawful detainer.
Under the Rules of Summary Procedure, the weight of evidence is not
considered when a judgment is rendered based on the complaint
The question now is whether the MeTC correctly dismissed the case
for lack of preponderance of evidence. Fairland posits that judgment
should have been rendered in its favor on the basis of the complaint
itself and not on its failure to adduce proof of ownership over the
subject property.
The Court agrees with Fairland’s position.
The summons, together with the complaint and its annexes, was
served upon Po on December 28, 2012. This presupposes that the
MeTC found no ground to dismiss the action for unlawful
detainer.25 Nevertheless, Po failed to file his answer on time and the
MeTC had the option to render judgment motu proprio or on motion of
the plaintiff. In relation thereto, Sections 5 and 6 of the Rules on
Summary Procedure provide:
Sec. 5. Answer. – Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a copy
thereof on the plaintiff. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except for lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred. The answer to
counterclaims or cross-claims shall be filed and served within ten (10)
days from service of the answer in which they are pleaded.
Sec. 6. Effect of failure to answer. – Should the defendant fail to
answer the complaint within the period above provided, the court,
motu proprio or on motion of the plaintiff, shall render judgment as
may be warranted by the facts alleged in the complaint and
limited to what is prayed for therein. The court may in its discretion
reduce the amount of damages and attorney’s fees claimed for being
excessive or otherwise unconscionable, without prejudice to the
applicability of Section 4, Rule 18 of the Rules of Court, if there are
two or more defendants.
[Emphasis Supplied]
Section 6 is clear that in case the defendant failed to file his answer,
the court shall render judgment, either motu proprio or upon plaintiff’s
motion, based solely on the facts alleged in the complaint and
limited to what is prayed for. The failure of the defendant to timely
file his answer and to controvert the claim against him constitutes his
acquiescence to every allegation stated in the complaint. Logically,
there is nothing to be done in this situation26except to render judgment
as may be warranted by the facts alleged in the complaint.27
Similarly, under Section 7, Rule 70 of the Rules of Court, which
governs the rules for forcible entry and unlawful detainer, if the
defendant fails to answer the complaint within the period provided, the
court has no authority to declare the defendant in default. Instead, the
court, motu proprio or on motion of the plaintiff, shall render judgment
as may be warranted by the facts alleged in the complaint and
limited to what is prayed for.28
This has been enunciated in the case of Don Tino Realty and
Development Corporation v. Florentino,29 citing Bayog v.
Natino,30 where the Court held that there was no provision for an entry
of default under the Rules of Summary Procedure if the defendant
failed to file his answer.
In this case, Po failed to file his answer to the complaint despite proper
service of summons. He also failed to provide a sufficient justification
to excuse his lapses.1âwphi1 Thus, as no answer was filed, judgment
must be rendered by the court as may be warranted by the facts
alleged in the complaint.
Failure to attach annexes is not fatal if the complaint alleges a
sufficient cause of action; evidence need not be attached to the
complaint
The lower courts erroneously dismissed the complaint of Fairland
simply on the ground that it failed to establish by preponderance of
evidence its ownership over the subject property. As can be gleaned
above, the rules do not compel the plaintiff to attach his evidence to
the complaint because, at this inception stage, he only has to file his
complaint to establish his cause of action. Here, the court was only
tasked to determine whether the complaint of Fairland alleged a
sufficient cause of action and to render judgment thereon.
Also, there was no need to attach proof of ownership in the complaint
because the allegations therein constituted a sufficient cause of action
for unlawful detainer. Only when the allegations in the complaint are
insufficient to form a cause of action shall the attachment become
material in the determination thereof. Even under Section 4 of the
Rules of Summary Procedure,31 it is not mandatory to attach annexes
to the complaint.
In the case of Lazaro v. Brewmaster32 (Lazaro), where judgment was
rendered based on the complaint due to the failure of the defendant to
file an answer under the Rules of Summary Procedure, it was written
that:
xxx To determine whether the complaint states a cause of action, all
documents attached thereto may, in fact, be considered, particularly
when referred to in the complaint. We emphasize, however, that the
inquiry is into the sufficiency, not the veracity of the material
allegations in the complaint. Thus, consideration of the annexed
documents should only be taken in the context of ascertaining
the sufficiency of the allegations in the complaint.
[Emphasis Supplied]
In Lazaro, the assailed invalid invoices attached to the complaint were
not considered because the complaint already alleged a sufficient
cause of action for collection of sum of money. Those assailed
documents were not the bases of the plaintiff’s action for sum of
money, but were only attached to the complaint to provide evidentiary
details on the alleged transactions.
Similarly, in the case at bench, there was no need for documentary
attachments to prove Fairland’s ownership over the subject
property. First, the present action is an action for unlawful detainer
wherein only de facto or material possession is required to be alleged.
Evidently, the attachment of any deed of ownership to the complaint
is not indispensable because an action for unlawful detainer does not
entirely depend on ownership.
Second, Fairland sufficiently alleged ownership and superior right of
possession over the subject property. These allegations were
evidently manifest in the complaint as Fairland claimed to have orally
agreed to lease the property to Po. The Court is of the view that these
allegations were clear and unequivocal and did not need supporting
attachments to be considered as having sufficiently established its
cause of action. Even the MeTC conceded that the complaint of
Fairland stated a valid cause of action for unlawful detainer.33 It must
be stressed that inquiry into the attached documents in the complaint
is for the sufficiency, not the veracity, of the material allegations in the
complaint.
Third, considering that Po failed to file an answer within the prescribed
period, he was deemed to have admitted all the allegations in the
complaint including Fairland’s claim of ownership. To reiterate, the
failure of the defendant to timely file his answer and controvert the
claim against him constituted his acquiescence to every allegation
stated in the complaint.
In the Entry of Appearance with Motion for Leave of Court to file
Comment/Opposition to Motion to Render Judgment, which was
belatedly filed and so was denied by the MeTC, Po merely denied the
allegations against him without even bothering to aver why he claimed
to have a superior right of possession of the subject property.34
Fourth, it is only at the later stage of the summary procedure when the
affidavits of witnesses and other evidence on factual issues shall be
presented before the court. Sections 8 and 9 of the Rules on Summary
Procedure state:
Sec. 8. Record of preliminary conference. – Within five (5) days after
the termination of the preliminary conference, the court shall issue an
order stating the matters taken up therein, x x x
Sec. 9. Submission of affidavits and position papers. – Within ten (10)
days from receipt of the order mentioned in the next preceding section,
the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with
their position papers setting forth the law and the facts relied upon by
them.
[Emphasis Supplied]
Again, it is worth stressing that these provisions are exactly Sections
9 and 10 under Rule 70 of the Rules of Court.
Accordingly, it is only at this part of the proceedings that the parties
will be required to present and offer their evidence before the court to
establish their causes and defenses. Before the issuance of the record
of preliminary conference, the parties are not yet required to present
their respective evidence.
These specific provisions under the Rules of Summary Procedure
which are also reflected in Rule 70 of the Rules of Court, serve their
purpose to immediately settle ejectment proceedings. “Forcible entry
and unlawful detainer cases are summary proceedings designed to
provide for an expeditious means of protecting actual possession or
the right to possession of the property involved. It does not admit of a
delay in the determination thereof. It is a ‘time procedure’ designed to
remedy the situation.35 Thus, as a consequence of the defendant’s
failure to file an answer, the court is simply tasked to render judgment
as may be warranted by the facts alleged in the complaint and limited
to what is prayed for therein.
As the complaint contains a valid cause of action, a judgment can
already be rendered
In order to achieve an expeditious and inexpensive determination of
unlawful detainer cases, a remand of this case to the lower courts is
no longer necessary and the case can be determined on its merits by
the Court.
To recapitulate, as Po failed to file his answer on time, judgment shall
be rendered based only on the complaint of Fairland without the need
to consider the weight of evidence. As discussed above, the complaint
of Fairland had a valid cause of action for unlawful detainer.
Consequently, there is no more need to present evidence to establish
the allegation of Fairland of its ownership and superior right of
possession over the subject property. Po’s failure to file an answer
constitutes an admission of his illegal occupation due to his non-
payment of rentals, and of Fairland’s rightful claim of material
possession. Thus, judgment must be rendered finding that Fairland
has the right to eject Po from the subject property.
The Judicial Affidavit Rule
On a final note, the Court deems it proper to discuss the relevance of
the Judicial Affidavit Rule or A.M. No. 12-8-8-SC, where documentary
or object evidence are required to be attached. To begin with, the rule
is not applicable because such evidence are required to be attached
to a judicial affidavit, not to a complaint. Moreover, as the rule took
effect only on January 1, 2013, it cannot be required in this case
because this was earlier filed on December 12, 2012.
Granting that it can be applied retroactively, the rule being essentially
remedial, still it has no bearing on the ruling of this Court.
In the Judicial Affidavit Rule, the attachments of documentary or object
evidence to the affidavits is required when there would be a pre-trial
or preliminary conference or the scheduled hearing. As stated
earlier, where a defendant fails to file an answer, the court shall render
judgment, either motu proprio or upon plaintiff’s motion, based solely
on the facts alleged in the complaint and limited to what is prayed for.
Thus, where there is no answer, there is no need for a pre-trial,
preliminary conference or hearing. Section 2 of the Judicial Affidavit
Rule reads:
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of
direct testimonies. - (a) The parties shall file with the court and serve
on the adverse party, personally or by licensed courier service, not
later than five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the following:
Respondent Po is further ORDERED TO PAY the rentals-in-arrears,
as well as the rentals accruing in the interim until he vacates the
property. The unpaid rentals shall incur a legal interest of six percent
(6%) per annum from January 30, 2012, when the demand to pay and
to vacate was made, up to the finality of this decision. Thereafter, an
interest of six percent (6%) per annum shall be imposed on the total
amount due until full payment is made.
SO ORDERED.

(1) The judicial affidavits of their witnesses, which shall take

the place of such witnesses' direct testimonies; and

(2) The parties' docun1entary or object evidence, if any, which

shall be attached to the judicial affidavits and marked as
Exhibits A, B, C, and so on in the case of the complainant or
the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of
the respondent or the defendant.

(b) Should a party or a witness desire to keep the original document

or object evidence in his possession, he may, after the same has been
identified, marked as exhibit, and authenticated, warrant in his judicial
affidavit that the copy or reproduction attached to such affidavit is a
faithful copy or reproduction of that original. In addition, the party or
witness shall bring the original document or object evidence for
comparison during the preliminary conference with the attached copy,
reproduction, or pictures, failing which the latter shall not be admitted.

This is without prejudice to the introduction of secondary evidence in

place of the original when allowed by existing rules.

WHEREFORE, the petition is GRANTED. The October 31, 2014

Decision and the March 6, 2015 Resolution of the Court of Appeals in
CAG. R. SP No. 134701 are hereby REVERSED and SET
ASIDE. Respondent Arturo Loo Po is ORDERED TO
VACATE Condominium Unit No. 205 located in Cedar Mansion II on
Ma. Escriba Street, Pasig City.
G.R. No. 183795 November 12, 2014
PRUDENTIAL BANK (now Bank of the Philippine Islands) as the
duly appointed ADMINISTRATOR OF THE ESTATE OF JULIANA
DIEZ VDA. DE GABRIEL,Petitioner,
vs. AMADOR A. MAGDAMIT, JR., on his behalf and as substituted
heir (son) of AMADOR MAGDAMIT, SR., and AMELIA F.
MAGDAMIT, as substituted heir (Widow) of AMADOR
MAGDAMIT, SR., Respondents.
Before us is a Petition for Review under Rule 45 of the 1997 Rules of
Civil Procedure assailing the Decision1 and Resolution2 of the Court of
Appeals (CA) dated 3 September 2007 and 18 July 2008, respectively,
in CA-G.R. SP No. 93368, affirming the Decision of the Regional Trial
Court (RTC),3 dated 18 January 2006, in Civil Case No. 05-112499,
which reversed the ruling of the Metropolitan Trial Court (MeTC) on
the ground that the MeTC did not acquire jurisdiction over the person
of the respondents due to invalid service of summons.
The facts as culled from the records are as follows:
This is a case of unlawful detainer filed by petitioner Prudential Bank,
now Bank of the Philippine Islands (petitioner), in its capacity as
administrator of the Estate of Juliana Diez Vda. De Gabriel (Estate). It
is based on the ground of respondents’ failure to pay rentals and
refusal to vacate the subject property, which is allegedly part of the
Estate located at 1164 Interior, Julio Nakpil St., Paco, Manila, covered
by Transfer Certificate of Title No. 118317 of the Registry of Deeds of
Manila.
Complaint4
In the Original filed before the MeTC, Branch 15 of Manila,
petitioner impleaded Amador A. Magdamit, Jr. (Magdamit, Jr.), as
respondent.
Instead of filing an Answer, Magdamit, Jr. filed a Notice of Special
Appearance with Motion to Dismiss. Among others, Magdamit, Jr.
argued that (1) petitioner was not duly authorized through a Board
Resolution to institute the complaint, (2) he was not the occupant of
the subject property but instead, his parents, as grantees or awardees
of Juliana Diez Vda. De Gabriel, and (3) the MeTC did not acquire
jurisdiction over his person because the summons was served at his
former address at 1164 Interior Julio Nakpil St., Paco, Manila. On 30
April 2003, petitioner filed a Motion to Strike Out this pleading on the
ground that it is prohibited. Petitioner then filed an Amended
Complaint, this time, impleading both Magdamit, Jr. and Amador
Magdamit, Sr. (Magdamit, Sr.).
In an Order5 dated 26 June 2003, the MeTC granted petitioner’s
Motion to Strike Out Magdamit, Jr.’s Notice of Special Appearance
with Motion to Dismiss and ordered Magdamit,Jr. to file an Answer.
The Order reads:
After due consideration of the matter and arguments stated therein,
the Court resolves to DENY the defendant’s Motion to dismiss, it
appearing that the summons issued in this case was served, albeit
substituted nevertheless valid. It is of no consequence that defendant
is also presently residing in Bacoor, Cavite. Suffice it to say that
summons was served upon him (although substituted) on the leased
premises which plaintiff is justified in assuming that he is also residing
there at. Moreover, it appears that he knew the person on whom
summons was served (together with a copy of the complaint) as a
certain Dara Cabug only that he claims that the latter is not of "suitable
age and discretion" to receive the summons. Simply put, the
requirement of due process has been satisfied. Be that as it may, it
would not unduly prejudice the rights of the plaintiff if defendant is
given additional period of five (5) days from notice hereof within which
to file his Answer.6
In response to the Amended Complaint, both Magdamit, Jr. and
Magdamit, Sr. filed their Answers separately. On 9 July 2003,
Magdamit, Jr., filed his Answerwith Counterclaim 7 (In a Special
Appearance Capacity). On the other hand, Magdamit, Sr. filed his
Answer8 on 13 November 2003. Magdamit, Sr. argued that the MeTC
did not acquire jurisdiction over his person because the summons was
not properly served as the summons was received by Madel
Magalona, who is not authorized to receive summons being a mere
housemaid of Magdamit, Sr.’s daughter, Arleen Marie Cabug. Also,
Magdamit, Sr. argued that in the 1960s, the Spouses Francisco and
Juliana Gabriel assigned the subject property to him free of charge as
a reward and in recompense for the long, faithful, and devoted
services he rendered to them. Since then, he had been continuously
exercising acts of ownership over the subject property, including
payment of real estate taxes. Magdamit, Sr. further argued that
amendment of the Complaint in order to implead him is improper.
According to Magdamit, Sr., amendment cannot be allowed so as to
confer jurisdiction upon a court that never acquired it in the first place,
and the ejectment case cannot be instituted against Magdamit, Jr.
because an action to recover possession cannot be maintained
against one who is not in actual or legal possession thereof.9
Pending litigation of the case, Magdamit, Jr., who was made an
original defendant in the MeTC, substituted his deceased father,
Magdamit, Sr.
Ruling of the MeTC
After trial, the MeTC ruled in favor of petitioner. According to the
MeTC, "[t]he fact that the person who received the summons was a
13-year old girl does not make the service of summons invalid. That
she was of sufficient age and discretion is shown by the fact that she
was intelligent enough to immediately bring to the attention of
defendant Atty. Amador Magdamit, Jr. the summons and copy of the
complaint she received."10 The MeTC went on further, stating that
Magdamit Sr.’s claim of ownership is beyond its jurisdiction because
the onlyissue in an ejectment case is "possession de facto". The
dispositive portion of the MeTC Decision dated 21 March 2005 reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
and against defendants Amador Magdamit, Sr.:
1. ordering said defendant and all persons claiming right
under him to vacate the subject three (3) lots covered by TCT
No. 118317 of the Registry of Deeds of Manila, located at and
also known as 1164 Interior J. Nakpil St., Paco, Manila and to
peacefully surrender possession thereof to plaintiff;
2. ordering said defendant to pay plaintiff the sum of
₱180,000.00 representing rentals or reasonable
compensation for the use of the property due from August
2003 up to February 2005 and ₱10,000.00 per month
thereafter until defendants fully vacate the subject property;
3. ordering said defendant to pay plaintiff the sum of
₱20,000.00 as attorney’s fees; and
4. to pay the costs. The complaint is dismissed as against
defendant Amador Magdamit, Jr. and the latter’s counterclaim
is likewise dismissed.
SO ORDERED.11
Ruling of the RTC
On appeal, the RTC set aside the decision of the MeTC and dismissed
the case for lack of jurisdiction over the person of the
respondents.12 According to the RTC, amending the original complaint
to implead Magdamit, Sr. to cure a defect in the complaint and
introduce a non-existing cause of action, which petitioner did not
possess at the outset, and to confer
jurisdiction upon the court that never acquired jurisdiction in the first
place renders the complaint dismissible. The RTC further stated that
because the Return did not clearly indicate the impossibility of service
of summons within a reasonable time upon the respondents, the
process server’s resort to substituted service of summons was
unjustified. The decision of the RTC reads:
WHEREFORE, this Court finds merit on the appeal and consequently,
the decision on appeal is hereby set aside, and this case is accordingly
dismissed for lack of jurisdiction over the persons of the defendants.13
Ruling of the CA
Aggrieved, petitioner filed an appeal via a petition for review under
Rule 42 of the Rules of Court beforethe CA. The petitioner argued that
the RTC erred in ruling thatthe MeTC did not acquire jurisdiction over
the person of the respondents due to improper service of summons
considering that the respondents participated in the proceedings in the
MeTC by filing a Notice of Appearance with Motion to Dismiss, Answer
with Counterclaim, entering into pre-trial, submitting position papers,
and presenting evidence, which militate against the alleged improper
service of summons. On 3 September 2007, the CA denied the petition
and affirmed the decision of the RTC.
According to the CA, the Return, with only a general statement and
without specifying the details of the attendant circumstances or of the
efforts exerted to serve the summons, will notsuffice for purposes of
complying with the rules of substituted service of summons. The CA
also rejected petitioner’s contention that respondents’ voluntary
submission to the jurisdiction of the court cured any defect in the
substituted service of summons when as early as during the infancy
of the proceedings in the MeTC, Magdamit, Jr. seasonably raised the
ground of lack of jurisdiction over his person by filing a Notice of
Appearance with Motion to Dismiss, which the respondents
incessantly reiterated in their pleadings even when the case was
elevated to the RTC, then to the CA. The dispositive portion of the
decision of the CA reads:
Having found that the MeTC did notacquire jurisdiction over the
persons (sic) of respondents, it would be futile on Our part to still pass
upon the other errors assigned by petitioner. WHEREFORE, premises
considered, the petition is DENIED. Costs against petitioner.
SO ORDERED.14
The motion for reconsideration was likewise denied for lack of merit.
Hence, this Petition, raising the following assignment of errors:
"I. Whether or not the Court of Appeals erred in dismissing the
Petition for Review of the Decision of the Regional Trial Court
of Manila dated January 18,2006; and disposing of only the
issue of lack of jurisdiction over the person of respondents for
alleged improper service of summons;
II. Whether or not the Court of Appeals erred in not ruling on
the material and substantial issues in the case; and
III. Whether or not the Court of Appeals erred in affirming the
decision of the Metropolitan Trial Court of Manila dismissing
of the Complaint against Magdamit, Jr., based on the ground
that he was no longer residing at the subject property prior to,
and at the time of the filing of the ejectment complaint."15
The pivotal issue is whether or not the MeTC acquired jurisdiction over
the person of the respondents.
The petition is bereft of merit.
Both respondents, Magdamit, Jr. and Magdamit, Sr. argued that the
MeTC did not acquire jurisdiction overtheir persons due to defective
or improper service of summons. Magdamit,Sr. argued that the MeTC
could not have acquired jurisdiction over his person due to
improper/defective service of summons because it was served upon
an incompetent person, the housemaid of his daughter. Magdamit Sr.
also argued that the MeTC did not acquire jurisdiction over him
because he was impleaded asa respondent only after the inherently
invalid original complaint was amended. According to Magdamit, Sr.,
the original complaint was inherently invalid because it was instituted
against Magdamit, Jr., against whom an action to recover possession
cannot be maintained, because he is not in actual or legal possession
thereof. Thus, the amendment of the inherently invalid original
complaint for the purpose of curing a defect to confer jurisdiction was
invalid as the MeTC never acquired jurisdiction in the first
place.16Pertinent to the position of Magdamit, Sr. is the Sheriff’s
Return dated 24 October 2003 on the service of summons on
Magdamit, Jr. which reads:
1. That, on October 22, 2003, he proceeded to the place of
defendant Amador Magdamit, Sr. at No. 1164 Int. Julio Nakpil
St., Paco, Manila, for the purpose of serving the Summons
issued in the above-entitled case, but no service was effected
because he was not around;
 2. That, on October 23, 2003, undersigned repaired (sic) anew
to the said place but for the second time, he failed to reached
(sic) said defendant. Thus, he elected (sic) substituted service
by serving the said summons together with the copy of the
complaint and annexes attached thereat (sic) to Ms. Madel
Magalona, a person of sufficient age and living thereat who
however refused to acknowledge(d) receipt thereof;
3. That, undersigned explained to (this)Ms. Magalona the
contents of the said process in a language she fully
understood and adviced (sic) her to gave (sic) the same to her
employer as soon as he arrives.17
On the other hand, Magdamit, Jr. argued that the MeTC did not
acquire jurisdiction over his person because the summons was not
served at his residence but at the house of Magdamit, Sr., and on a
person not authorized to receive summons. The Sheriff’s Return dated
25 March 2003 reads:
This is to certify, that on the 24th day of March, 2003, xxx served copy
of the Summons together with the copy of the Complaint and its
attachment, upon defendant/s Amador A. Magdamit, Jr. at 1164 Int.,
J. Nakpil St., Paco, Manila, by tendering the copy to Dara Cabug
(grand daughter), a person of sufficient age, discretion and residing
therein who however refused to acknowledged (sic) receipt thereof.
That on several occasions despite deligent (sic) efforts exerted to
serve the said processes personally to defendant/s herein the same
proved futile. Thus, substituted service was effected in accordance
with the provision of Sec. 8, Rule 14, Rules of Court.
In view of the foregoing, the original summons is now respectfully
returned to the Honorable Court, DULY SERVED. 18
Fundamental is the rule that jurisdiction over a defendant in a civil case
is acquired either through service of summons or through voluntary
appearance in court and submission to its authority. In the absence or
when the service of summons upon the person of the defendant
isdefective, the court acquires no jurisdiction over his person, and a
judgment rendered against him is null and void.19
In actionsin personamsuch as ejectment, the court acquires
jurisdiction over the person of the defendant through personal or
substituted service of summons. However, because substituted
service is in derogation of the usual method of service and personal
service of summons is preferred over substituted service, parties do
not have unbridled right to resort to substituted service of
summons.20 Before substituted service of summons is resorted to, the
parties must: (a) indicate the impossibility of personal 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.21
In Manotoc v. Court of Appeals,22 we have succinctly discussed a valid
resort to substituted service of summons:
We can break down this section into the following requirements to
effect a valid substituted service:
(1) Impossibility of Prompt Personal Service
The party relying on substituted service or the sheriff must show that
defendant cannot be served promptly or there is impossibility of
prompt service. Section 8, Rule 14 provides that the plaintiff or the
sheriff is given a "reasonable time" to serve the summons to the
defendant in person, but no specific time frame is mentioned.
"Reasonable time" is defined as "so much time as is necessary under
the circumstances for a reasonably prudent and diligent man to do,
conveniently, what the contract or duty requires that should be done,
having a regard for the rights and possibility of loss, if any, to the other
party." Under the Rules, the service of summons has no set period.
However, when the court, clerk of court,or the plaintiff asks the sheriff
to make the return of the summons and the latter submits the return of
summons, then the validity of the summons lapses. The plaintiff may
then ask for an alias summons if the service of summons has failed.
What then is a reasonable time for the sheriff to effect a personal
service in order to demonstrate impossibility of prompt service? To the
plaintiff, "reasonable time" means no more than seven (7) days since
an expeditious processing of a complaint is what a plaintiff wants. To
the sheriff, "reasonable time" means 15 to 30 days because at the end
of the month, it is a practice for the branch clerk of court to require the
sheriff to submit a return of the summons assigned to the sheriff for
service. The Sheriff’s Return provides data to the Clerk of Court, which
the clerk uses in the Monthly Report of Cases to be submitted to the
Office of the Court Administrator within the first ten (10) days of the
succeeding month. Thus, one month from the issuance of summons
can be considered "reasonable time" with regard to personal service
on the defendant.
Sheriffs are asked to discharge their duties on the service of summons
with due care, utmost diligence, and reasonable promptness and
speed so as not to prejudice the expeditious dispensation of justice.
Thus, they are enjoined to try their best efforts to accomplish personal
service on defendant. On the other hand, since the defendant is
expected to try to avoid and evade service of summons, the sheriff
must be resourceful, persevering, canny, and diligent in serving the
process on the defendant. For substituted service of summons to be
available, there must be several attempts by the sheriff to personally
serve the summons within a reasonable period [of one month] which
eventually resulted in failure to prove impossibility of prompt service.
"Several attempts" means at least three (3) tries, preferably on at least
two different dates. In addition, the sheriff must cite why such efforts
were unsuccessful. It is only then that impossibility of service can be
confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service. The
efforts made to find the defendant and the reasons behind the failure
must be clearly narrated in detail in the Return.The date and time of
the attempts on personal service, the inquiries made to locate the
defendant, the name/s of the occupants of the alleged residence or
house of defendant and all other acts done, though futile, to serve the
summons on defendant must be specified in the Return to justify
substituted service. The form on Sheriff’s Return of Summons on
Substituted Service prescribed in the Handbook for Sheriffs published
by the Philippine Judicial Academy requires a narration of the efforts
made to find the defendant personally and the fact of failure. Supreme
Court Administrative Circular No. 5 dated November 9, 1989 requires
that "impossibility of prompt service should be shown by stating the
efforts made to find the defendant personallyand the failure of such
efforts," which should be made in the proof of service.
(3) A Person of Suitable Age and Discretion
If the substituted service will be effected at defendant’s house or
residence, it should be left with a person of "suitable age and
discretion then residing therein." A person of suitable age and
discretion is one who has attained the age of full legal capacity (18
years old) and is considered to have enough discernment to
understand the importance of a summons. "Discretion" isdefined as
"the ability to make decisions which represent a responsible choice
and for which an understanding of what is lawful, right or wise may be
presupposed". Thus, to be of sufficient discretion, suchperson must
know how to read and understand English to comprehend the import
of the summons, and fully realize the need to deliver the summonsand
complaint to the defendant at the earliest possible time for the person
to take appropriate action. Thus, the person must have the "relation of
confidence" to the defendant, ensuring that the latter would receive
orat least be notified of the receipt of the summons. The sheriff must
therefore determine if the person found in the alleged dwelling or
residence of defendant is of legal age, what the recipient’s relationship
with the defendant is, and whether said person comprehends the
significance of the receipt of the summons and his duty to immediately
deliver it to the defendant or at least notify the defendant of said receipt
of summons. These matters must be clearly and specifically described
in the Return of Summons.
(4) A Competent Person in Charge
If the substituted service will be done at defendant’s office or regular
place of business, then it should be served on a competent person in
charge of the place. Thus, the person on whom the substituted service
will be made must be the one managing the office or business of
defendant, such as the president or manager; and such individual
must have sufficient knowledge tounderstand the obligation of the
defendant in the summons, its importance, and the prejudicial effects
arising from inaction on the summons. Again, these details must be
contained in the Return.23(Emphasis and underscoring supplied;
citations omitted)
The service of summons on Magdamit, Sr. failed to comply with the
rule laid down in Manotoc. The resort to substituted service after just
two (2) attempts to personally serve the summons on Magdamit, Sr.,
is premature under our pronouncement that:
What then is a reasonable time for the sheriff to effect a personal
service in order to demonstrate impossibility of prompt service? To the
plaintiff, "reasonable time"means no more than seven (7) days since
an expeditious processing of a complaint is what a plaintiff wants. To
the sheriff, "reasonable time" means 15 to 30 days because at the end
of the month, it is a practice for the branch clerk of court to require the
sheriff to submit a return of the summons assigned to the sheriff for
service. The Sheriff’s Return provides data to the Clerk of Court, which
the clerk uses in the Monthly Report of Cases to be submitted to the
Office of the Court Administrator within the first ten (10) days of the
succeeding month. Thus, one month from the issuance of summons
can be considered "reasonable time" with regard to personal service
on the defendant.24
Then too, the proof of service failed to specify the details of the
attendant circumstances. The Return merely expressed a general
statement that because the Sheriff failed to reachMagdamit, Sr., he
elected substituted service of summons. The Return failed to state the
impossibility to serve summons within a reasonable time. And the
further defect in the service was that the summons was served on a
person not of sufficient discretion, an incompetent person, Madel
Magalona, a housemaid of Magdamit Sr.’s daughter, Arleen Marie
Cabug.
Similar to the case of Magdamit, Sr., the service of summons on
Magdamit, Jr. also failed to complywith the rules laid down in Manotoc.
The summons was served at 1163 Int., J. Nakpil St., Paco, Manila,
Magdamit, Jr.’s former residence when at the time, Magdamit, Jr. was
residing at 0369 Jupiter St., Progressive Village 20 and 21, Molino I,
Bacoor, Cavite. In Keister v. Navarro,25 we have defined "dwelling
house" or "residence" to refer to a 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 to the time
of service. Therefore, it is not sufficient for the Sheriff "to leave the
copy at defendant's former dwelling house, residence, or place
ofabode, as the case may be, after his removal therefrom".26
Worse, the Return did not make mention of any attempt to serve the
summons at the actual residence of Magdamit, Jr. The Return merely
expressed a general statement that the sheriff exerted efforts to serve
the summons and that the same was futile, "[t]hat on several
occasions despite deligent (sic) efforts exerted to serve the said
processes personally to defendant/s herein the same proved futile,"
without any statement on the impossibility of service of summons
within a reasonable time. Further, the summons was served on a
certain DaraCabug, a person not of suitable age and discretion, who
is unauthorized to receive the same.
Notably, the requirement additionally is that
Thus, to be of sufficient discretion, such person must know how to
read and understand English to comprehend the import of the
summons, and fully realize the need to deliver the summons and
complaint to the defendant at the earliest possible timefor the person
to take appropriate action. Thus, the person must have the "relation of
confidence" to the defendant, ensuring that the latter would receive or
at least be notified of the receipt of the summons. The sheriff must
therefore determine if the person found in the alleged dwelling or
residence of defendant is of legal age, what the recipient’s relationship
with the defendant is, and whether said person comprehends the
significance of the receipt of the summons and his duty to immediately
deliver it tothe defendant or at least notify the defendant of said receipt
of summons. These matters must be clearly and specifically described
in the Return of Summons.27
The readily acceptable conclusion inthis case is that the process
server at once resorted to substituted service of summons without
exerting enough effort to personally serve summons on respondents.
In Sps. Jose v. Sps. Boyon,28 we discussed the effect of failure to
specify the details of the effort exerted by the process serverto
personally serve summons upon the defendants:
The Return of Summons shows 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 withthe rules of substituted service
of summons.29 (Emphasis and underscoring supplied)
In the case at bar, the Returns contained mere general statements
that efforts at personal service were made. Not having specified the
details of the attendant circumstances or of the efforts exerted to serve
the summons,30 there was a failure to comply strictly with all the
requirements of substituted service, and as a result the service of
summons is rendered ineffective.31
Filing an Answer does not amount to voluntary appearance
The petitioner asserted that assuming arguendo that the service of
summons was defective, respondents’ filing of their respective
Answers and participation in the proceedings in the MeTC, such as
attending the pre-trial and presenting evidence, amount to voluntary
appearance which vested the MeTC jurisdiction over their persons.
Indeed, despite lack of valid service of summons, the court can still
acquire jurisdiction over the person of the defendant by virtue of the
latter’s voluntary appearance. Section 20, Rule14 of the Rules of Court
clearly states:
Sec. 20. Voluntary appearance. – The defendant’s voluntary
appearance in the action shall be equivalent to service of summons.
The inclusion in a motion to dismiss of other grounds aside from lack
of jurisdiction over the person shall not be deemed a voluntary
appearance.
However, such is not the case atbar. Contrary to petitioner’s
contention, respondents are not deemed to have voluntarily submitted
to the court’s jurisdiction by virtue of filing an Answer or other
appropriate responsive pleadings and by participating in the case.
The mandate under the Rules on Summary Proceedings that govern
ejectment cases, is expeditious administration of justice such that the
filing of an Answer is mandatory. To give effect to the mandatory
character and speedy disposition of cases, the defendant is required
to file an answer within ten (10) days from service of summons,
otherwise, the court, motu proprio, or upon motion of the plaintiff, shall
render judgment as may be warranted by the facts alleged in the
complaint, limited to the relief prayed for by the petitioner.32 Through
this rule, the parties are precluded from resorting to dilatory
maneuvers.
Compliantly, respondents filed their respective Answers. In the MeTC,
at first, Magdamit, Jr. filed a Notice of Special Appearance with Motion
to Dismiss, where he seasonably raised the issue of lack of
jurisdiction, which the MeTC later ordered to be stricken out. In lieu
thereof, Magdamit, Jr. filed an Answer with Counterclaim (In a Special
Appearance Capacity). Again, Magdamit, Jr. reiterated the lack of
jurisdiction over his person and the subject matter. On the other hand,
Magdamit, Sr. filed an Answer with an allegation by special defense
that the original complaint
should be dismissed outright because the MeTC did not acquire
jurisdiction over his person and the subject matter.1âwphi1In sum,
both respondents filed their Answers via special appearance.
In Philippine Commercial International Bank v. Spouses Wilson Dy
Hong Pi and Lolita Dy,33 we held that filing of an answer in a special
appearance cannot be construed as voluntary appearance or
submission to the court’s jurisdiction:
Preliminarily, jurisdiction over the defendant in a civil case is acquired
either by the coercive power of legal processes exerted over his
person, or his voluntary appearance in court. As a general proposition,
one who seeks an affirmative relief is deemed to have submitted to
the jurisdiction of the court. It is by reason of this rule that we have had
occasion to declare that the filing of motions to admit answer, for
additional time to file answer, for reconsideration of a default
judgment, and to lift order of default with motion for reconsideration, is
considered voluntary submission to the court’s jurisdiction. This,
however, is tempered by the concept of conditional appearance, such
that a party who makes a special appearance to challenge, among
others, the court’s jurisdiction over his person cannot be considered to
have submitted to its authority.
on summary procedure in lieu of obtaining an adverse summary
judgment does not amount to voluntary submission. As we already
held, a party who makes a special appearance in court, challenging
the jurisdiction of said court, is not deemed to have submitted himself
to the jurisdiction of the court.35 It should not be construed as voluntary
submission to the jurisdiction of the court.
In view of the foregoing, the petition is DENIED. The Decision and
Resolution of the Court of Appeals in CA-G.R. SP No. 93368, which
upheld the ruling of the Regional Trial Court that the Metropolitan Trial
Court in Civil Case No. 174798 did not acquire jurisdiction over the
person of the respondents due to invalid service of summons, are
AFFIRMED.
SO ORDERED.

Prescinding from the foregoing, it is thus clear that:

(1) Special appearance operates as an exception to the

general rule on voluntary appearance;

(2) Accordingly, objections to the jurisdiction of the court over

the person of the defendantmust be explicitly made, i.e., set
forth in an unequivocal manner; and

(3) Failure to do so constitutes voluntary submission to the

jurisdiction of the court, especially in instanceswhere a
pleading or motion seeking affirmative relief is filed and
submitted to the court for resolution.34 (Emphasis supplied
and underscoring supplied)

Parallel to our ruling in Philippine Commercial International Bank, the

respondents’ act of filing their respective Answers with express
reservation should not be construed as a waiver of the lack of
jurisdiction of the MeTC over their person because of non-
service/defective/improper service of summons and for lack of
jurisdiction over the subject matter. Hence, sans voluntary submission
to the court’s jurisdiction, filing an answer in compliance with the rules
G.R. No. 127692 March 10, 2004
FORTUNATO GOMEZ and AURORA GOMEZ, petitioners,
vs. COURT OF APPEALS, ADOLFO TROCINO and MARIANO
TROCINO, respondents.
Before the Court is a petition for review on certiorari under Rule 45 of
the Rules of Court assailing the decision1 of the Court of Appeals
dated September 30, 1996, in CA-G.R. SP No. 40067, nullifying the
decision and orders of the Regional Trial Court of Cebu City (Branch
10) in Civil Case No. CEB-11103, for want of jurisdiction.
Civil Case No. CEB-11103 is an action for specific performance and/or
rescission filed by herein petitioners, spouses Fortunato and Aurora
Gomez, against the heirs of Jesus J. Trocino, Sr., which include herein
respondents and their mother Caridad Trocino.2
Filed on December 16, 1991, the complaint alleges: Some time in
1975, the spouses Jesus and Caridad Trocino mortgaged two parcels
of land covered by TCT Nos. 10616 and 31856 to Dr. Clarence
Yujuico. The mortgage was subsequently foreclosed and the
properties sold at public auction on July 11, 1988, and before the
expiry of the redemption period, the spouses Trocino sold the property
to petitioners on December 12, 1989, who in turn, redeemed the same
from Dr. Yujuico. The spouses Trocino, however, refused to convey
ownership of the properties to petitioners, hence, the complaint.
On January 10, 1992, the trial court’s Process Server served
summons on respondents, in the manner described in his "Return of
Service," to wit:
Respectfully returned to the Branch Clerk of Court, Regional Trial
Court of Cebu, Branch 10, the herein attached original summons
issued in the above-entitled case with the information that on January
8, 1992 summons and copies of the complaint were served to the
defendants Jacob, Jesus Jr., Adolfo, Mariano, Consolacion, Alice,
Racheal thru defendant Caridad Trocino at their given address at
Maria Cristina Extension (besides Sacred Heart School for Girls),
Cebu City, evidence by her signature found at the lower portion of the
original summons.3
WHEREFORE I, respectfully return the original summons duly served
to the court of origin.
Cebu City, Philippines, January 10, 1992.
(signed)
DELFIN D. BARNIDO
RTC Process Server
On January 27, 1992, the defendants, through their counsel Atty.
Expedito P. Bugarin, filed their Answer. Defendant Caridad A. Trocino,
respondents’ mother, verified said pleading.4
After trial on the merits, the RTC rendered its decision on March 1993,
with the following disposition:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiffs and against the defendants.
The latter are hereby ordered to jointly and severally execute a Deed
of Sale in favor of the plaintiffs and to deliver the owner’s duplicate
copies of TCT Nos. 10616 and 31856, covering the properties sold, to
the plaintiffs within ten (10) days from the finality of the judgment, after
which plaintiffs shall pay in turn to the defendants the balance of
₱2,000,000.00. Otherwise, the sale is rescinded and revoked and the
defendants are directed to return to the plaintiffs the amount of
₱500,000.00, with interest of 12% per annum computed from
December 6, 1989, until the full amount is paid.
In addition thereto, defendants are to pay jointly and severally to the
plaintiffs, the amount of ₱50,000.00 as moral damages; ₱20,000.00
as exemplary damages; ₱40,000.00 by way of attorney’s fees; and
₱10,000.00 as litigation expenses.
SO ORDERED.5
Due to the defendants’ failure to deliver the owner’s duplicate of TCT
Nos. 10616 and 31856, the RTC issued an order on August 29, 1995
declaring said titles null and void, and ordering the Register of Deeds
of Cebu City to issue new titles in the name of herein petitioners.6
Thereafter, or on March 13, 1996, respondents Adolfo and Mariano
Trocino filed with the Court of Appeals, a petition for the annulment of
the judgment rendered by the RTC-Cebu (Branch 10) in Civil Case
No. CEB-11103. Private respondents alleged that the trial court’s
decision is null and void on the ground that it did not acquire
jurisdiction over their persons as they were not validly served with a
copy of the summons and the complaint. According to them, at the
time summons was served on them, Adolfo Trocino was already in
Ohio, U.S.A., and has been residing there for 25 years, while Mariano
Trocino was in Talibon, Bohol, and has been residing there since
1986. They also refuted the receipt of the summons by Caridad A.
Trocino, and the representation made by Atty. Bugarin in their behalf.
Respondents also contended that they have a meritorious
defense.7 Petitioners filed their Comment/Answer to the petition. 8
On September 30, 1996, the Court of Appeals issued the assailed
Decision granting the petition and annulling the decision of the RTC-
Cebu (Branch 10). The decretal portion of the decision reads:
WHEREFORE, the decision of the Regional Trial Court of Cebu City,
Branch 10, in Civil Case No. CEB-11103 as well as all Orders issued
to implement the same are hereby ANNULLED AND SET ASIDE. The
Register of Deeds of Cebu City is hereby ENJOINED from cancelling
Transfer Certificates of Title Nos. 10616 and 31856. No
pronouncement as to costs.
SO ORDERED.9
Their motion for reconsideration having been denied by the Court of
Appeals, petitioners filed the present petition, setting forth the
following assignment of errors:
I. THE COURT OF APPEALS ERRED IN FINDING LACK OF PRIOR
KNOWLEDGE ON THE PART OF RESPONDENTS TROCINO,
REGARDING THE PROCEEDINGS BEFORE THE RTC OF CEBU
CITY AND IN NOT DISMISSING THE PETITION FOR VIOLATION
OF SUPREME COURT CIRCULAR 04-94.
II. THE COURT OF APPEALS ERRED IN DECLARING THE NEED
FOR PERSONAL AND/OR EXTRATERRITORIAL SERVICE OF
SUMMONS, DESPITE THE NATURE OF THE CAUSE OF ACTION
BEING ONE IN REM.
III. THE COURT OF APPEALS ERRED IN ANNULLING THE
JUDGMENT, CAUSING FURTHER USELESS LITIGATION AND
UNNECESSARY EXPENSE ON PETITIONERS AND
RESPONDENTS, ESPECIALLY SINCE RESPONDENTS HAVE NOT
SHOWN ANY VALID DEFENSE AS GROUND FOR REVERSAL OF
JUDGMENT OF THE RTC.
IV. THE COURT OF APPEALS ERRED IN RULING THAT ITS
JUDGMENT IS APPLICABLE IN FAVOR OF CARIDAD TROCINO.10
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.11 Any judgment without
such service in the absence of a valid waiver is null and void.12
The resolution of the present petition hinges on the issue of whether
or not summons was effectively served on respondents. If in the
affirmative, the trial court had validly acquired jurisdiction over their
persons and therefore its judgment is valid.
To resolve whether there was valid service of summons on
respondents, the nature of the action filed against them must first be
determined. As the Court explained in Asiavest Limited vs. Court of
Appeals, it will be helpful to determine first whether the action is in
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.13
In actions in personam, summons on the defendant must be served
by handing a copy thereof to the defendant in person, or, if he refuses
to receive it, by tendering it to him. This is specifically provided in
Section 7, Rule 14 of the Rules of Court,14 which states:
SEC. 7. Personal service of summons.-- The summons shall be
served by handing a copy thereof to the defendant in person or, if he
refuses to receive it, by tendering it to him.
If efforts to find defendant personally makes prompt service
impossible, substituted service may be effected by leaving copies of
the summons at the defendant's dwelling house or residence with
some person of suitable age and discretion then residing therein, or
by leaving the copies at the defendant's office or regular place of
business with some competent person in charge thereof. 15 In
substituted service, it is mandated that the fact of impossibility of
personal service should be explained in the proof of service.16
When the defendant in an action in personam 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 his person. This cannot be done if the
defendant is not physically present in the country, and thus, the court
cannot acquire jurisdiction over his person and therefore cannot validly
try and decide the case against him.17 An exception was accorded in
Gemperle vs. Schenker wherein service of summons through the non-
resident’s wife, who was a resident of the Philippines, was held valid,
as the latter was his representative and attorney-in-fact in a prior civil
case filed by the non-resident, and the second case was merely an
offshoot of the first case.18
Meanwhile, in actions 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,
although summons must be served upon the defendant in order to
satisfy the due process requirements.19 Thus, where the defendant is
a non-resident who is not found in the 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, summons may be served extraterritorially 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.20
In the present case, petitioners’ cause of action in Civil Case No. CEB-
11103 is anchored on the claim that the spouses Jesus and Caridad
Trocino reneged on their obligation to convey ownership of the two
parcels of land subject of their sale. Thus, petitioners pray in their
complaint that the spouses Trocino be ordered to execute the
appropriate deed of sale and that the titles be delivered to them
(petitioners); or in the alternative, that the sale be revoked and
rescinded; and spouses Trocino ordered to return to petitioners their
down payment in the amount of P500,000.00 plus interests. The action
instituted by petitioners affect the parties alone, not the whole world.
Hence, it is an action in personam, i.e., any judgment therein is binding
only upon the parties properly impleaded.21
Contrary to petitioners’ belief, the complaint they filed for specific
performance and/or rescission is not an action in rem. While it is a real
action because it affects title to or possession of the two parcels of
land covered by TCT Nos. 10616 and 31856, it does not automatically
follow that the action is already one in rem. In Hernandez vs. Rural
Bank of Lucena, Inc., the Court made the following distinction:
In a personal action, the plaintiff seeks the recovery of personal
property, the enforcement of a contract or the recovery of damages.
In a real action, the plaintiff seeks the recovery of real property, or, as
indicated in section 2(a) of Rule 4, a real action is an action affecting
title to real property or for the recovery of possession, or for partition
or condemnation of, or foreclosure of a mortgage on, real property.
An action in personam is an action against a person on the basis of
his personal liability, while an action in rem is an action against the
thing itself, instead of against the person. Hence, a real action may at
the same time be an action in personam and not necessarily an action
in rem.22
The objective sought in petitioners’ complaint was to establish a claim
against respondents for their alleged refusal to convey to them the title
to the two parcels of land that they inherited from their father, Jesus
Trocino, who was one of the sellers of the properties to petitioners.
Hence, to repeat, Civil Case No. CEB-11103 is an action in
personam because it is an action against persons, namely, herein
respondents, on the basis of their personal liability. As such,
personal service of summons upon the defendants is essential
in order for the court to acquire of jurisdiction over their
persons.23
A distinction, however, must be made with regard to service of
summons on respondents Adolfo Trocino and Mariano Trocino. Adolfo
Trocino, as records show, is already a resident of Ohio, U.S.A. for 25
years. Being a non-resident, the court cannot acquire jurisdiction over
his person and validly try and decide the case against him.
On the other hand, Mariano Trocino has been in Talibon, Bohol since
1986. To validly acquire jurisdiction over his person, summons must
be served on him personally, or through substituted service, upon
showing of impossibility of personal service. Such impossibility, and
why efforts exerted towards personal service failed, should be
explained in the proof of service. The pertinent facts and
circumstances attendant to the service of summons must be stated in
the proof of service or Officer’s Return. Failure to do so would
invalidate all subsequent proceedings on jurisdictional grounds. 24
In the present case, the process server served the summons and
copies of the complaint on respondents Jacob, Jesus, Jr., Adolfo,
Mariano, Consolacion, Alice and Racheal,25 through their mother,
Caridad Trocino.26 The return did not contain any particulars as to the
impossibility of personal service on Mariano Trocino within a
reasonable time. Such improper service renders the same ineffective.
Due process of law requires personal service to support a personal
judgment, and, when the proceeding is strictly in personam brought to
determine the personal rights and obligations of the parties, personal
service within the state or a voluntary appearance in the case is
essential to the acquisition of jurisdiction so as to constitute
compliance with the constitutional requirement of due process.27
Moreover, inasmuch as the sheriff’s return failed to state the facts and
circumstances showing the impossibility of personal service of
summons upon respondents within a reasonable time, petitioners
should have sought the issuance of an alias summons. Under Section
5, Rule 14 of the Rules of Court, alias summons may be issued when
the original summons is returned without being served on any or all of
the defendants.28 Petitioners, however, did not do so, and they should
now bear the consequences of their lack of diligence.
The fact that Atty. Expedito Bugarin represented all the respondents
without any exception does not transform the ineffective service of
summons into a valid one. It does not constitute a valid waiver or even
a voluntary submission to the trial court’s jurisdiction. There was not
even the slightest proof showing that respondents authorized Atty.
Bugarin’s appearance for and in their behalf. As found by the Court of
Appeals:
While Caridad Trocino may have engaged the services of Atty.
Bugarin, it did not necessarily mean that Atty. Bugarin also had the
authority to represent the defendant heirs. The records show that in all
the pleadings which required verification, only Caridad Trocino signed
the same. There was never a single instance where defendant heirs
signed the pleading. The fact that a pleading is signed by one
defendant does not necessarily mean that it is binding on a co-
defendant. Furthermore, Caridad Trocino represented herself as the
principal defendant in her Motion to Withdraw Appeal. (Rollo, p. 80)
Since the defendant heirs are co-defendants, the trial court should
have verified the extent of Atty. Bugarin’s authority when petitioners
failed to appear as early as the pre-trial stage, where the parties are
required to appear. The absence of the defendant heirs should have
prompted the trial court to inquire from the lawyer whether he was also
representing the other petitioners. As co-defendant and co-heirs over
the disputed properties, the defendant heirs had every right to be
present during the trial. Only Caridad Trocino appeared and testified
on her own behalf. All the defenses raised were her own, not the
defendant heirs.29

Consequently, the judgment sought to be executed against

respondents were rendered without jurisdiction as there was neither a
proper service of summons nor was there any waiver or voluntary
submission to the trial court’s jurisdiction. Hence, the same is void,
with regard to private respondents except Caridad Trocino.

It must be pointed out that while it was the spouses Jesus and Caridad
Trocino who sold the properties to petitioners, their right to proceed
against Jesus Trocino when he died was passed on to his heirs, which
includes respondents and Caridad Trocino. Such transmission of right
occurred by operation of law, more particularly by succession, which
is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance of a person are
transmitted.30 When the process server personally served the
summons on Caridad Trocino, the trial court validly acquired
jurisdiction over her person alone. Hence, the trial court’s decision is
valid and binding with regard to her, but only in proportion to Caridad
Trocino’s share. As aptly stated by the Court of Appeals:

This Court’s decision is therefore applicable to all the defendant heirs

with the exception of defendant Caridad Trocino considering that it
was the latter who entered into the alleged sale without the consent of
her husband. She is therefore estopped from questioning her own
authority to enter into the questioned sale. Moreover, Caridad Trocino
was validly served with summons and was accorded due process. 31

WHEREFORE, the petition for review is DENIED. The decision of the

Court of Appeals in CA-G.R. SP No. 40067 is AFFIRMED.

Costs against petitioners.

SO ORDERED.