Cases Civpro Week 4

8/12/2019 Cases Civpro Week 4

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-26816 February 28, 1967

PABLO DE JESUS, ENGRACIA DE JESUS and MANUELA DE JESUS, petitioners,vs.HON. GREGORIO N. GARCIA, Judge of the City Court of Manila, Branch ITHE SHELL COMPANY OF THE PHILIPPINES, LTD., MAXIMA DE Jesus and SALVADORBARRIOS,respondents.

Feria, Feria, Lugto & La'O for petitioners.Salvador Barrios for respondents.

SANCHEZ, J.:

Before us upon an original action of certiorari and prohibition, are two jurisdictional issues:first, jurisdiction over thesubject matter; and second, the power of the City Court of Manila to issue a writ of preliminary or final injunction upon the factual averments hereinafter to be recited. The problem cropped up because petitioners' motion todismiss the complaint and to dissolve the writ of preliminary injunction upon the above grounds, in that case filed byprincipal individual respondents against them in the city court,1was denied, and their motion to reconsider rejected.The pivotal disputed allegations of the verified complaint below are these: Ten persons, 2among whom arepetitioners and respondent, Maxima de Jesus, are co-owners of six (6) parcels of land running along Espaa P.Campa and Adelina Streets in Sampaloc, Manila. Administratrix thereof and co-owners attorney-in-fact is Maximade Jesus. Her stipulated compensation is 10% of the rentals. The monthly receipts signed by each co-owner, forhis/her rental share, is in a form reproduced in the complaint as follows:

RECEIVED from Mrs. Maxima de Jesus Barrios the sum of .................. as my share, in the rental collected

for this month, on the properties of which I am a co-owner. Ten per cent (10%) of said rentals had beenpreviously deducted as agreed upon by me, for her administration fee together with her expensesconcerning a collector and an Attorney that she may employ to INCREASE rate, prevent arrears, and ejectstubborn tenant.1wph1.t

Lessee of the property is Shell Company of the Philippines, Ltd. The original lease contract was dated August 23and 29, 1953. This lease was renewed by instrument executed on January 10, 1966, where under, through theefforts of Maxima de Jesus, the monthly rentals were increased from P850.00 to P3,500.00 during the first ten (10)years and to P4,000.00 for the subsequent five (5) years. Shell pays the rentals by issuing a check for P3,500.00 inthe name of Maxima de Jesus who, in turn, distributes the shares of her co-owners. Petitioners' monthly shares onthe basis of P3,500.00 monthly rentals are:

Manuela de Jesus 9/54 of P3,500.00 P 583.33Pablo de Jesus 9/54 of P3,500.00 P 583.33

Engracia de Jesus 10/54 of P3,500.00 P 684.14

P1,850.80

Petitioners (defendants below), in October, 1966 so the complaint further avers sought to unjustly depriveMaxima de Jesus of her 10% compensation. And, to fraudulently escape such obligation, they surreptitiouslyinstructed Shell not to pay their share in the rentals through said Maxima de Jesus but directly to them.

As against Shell, the complaint states:

... Pero ahora la compania demandada esta vacilando si va a cambiar esa FORMA DE PAGO, para seguirdicho aviso de los 3 demandados individuales, de que ella pague directamente a ellos sus "shares" deP1,850.80 mensuales dejando a la demandante fraudulentamente privada y despojada de su 10% decompensacion que asciende a P185.08 mensuales.

The complaint winds up with the prayer:

POR TANTO, pedimos respetuosamente al Hon. Juzgado se sirva expedir una inmediata orden deinterdicto prohibitorio preliminar a la pagadora compaia demandada, para que se abstenga de cambiar la


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presente FORMA DE PAGO, ...; y, despues de los tramites judiciales correspondientes, que el Hon.Juzgado se sirva dictar sentencia declarando definitivo el mismo interdicto prohibitorio, y condenando a los3 demandados individuales Manuela de Jesus, Engracia de Jesus y Pablo de Jesus a pagar dicho 10% decompensacion, deduciendolo de sus P1,850.80 de "shares" o participaciones respectivas en la rentamensual, de acuerdo con la presents forma de pago. x x x x3

Upon the foregoing complaint filed on October 3, 1966, the respondent judge, on a P500.00-bond, issued ex-parte,

on October 4, 1966, a writ of preliminary injunction, which reads:

It is hereby ordered by the undersigned Judge of the Court of Manila City that, until further orders, you, thesaid The Shell Co. of the Philippines, Ltd. and all your attorneys, representatives, agents, and any otherperson assisting you, refrain from modifying the present "FORMA DE PAGO"; The Shell Co. of thePhilippines, shall pay the monthly rentals with check to be issued in the name of Maxima de Jesus alone,who shall cash and distribute the amount of same, among the ten co-owners, previous deduction of ten percent (10%) thereof.

On the same date, October 4, 1966, in obedience to the writ of preliminary injunction, Shell delivered to Maxima deJesus the sum of P3,500.00, covering the October, 1966 rental.

The jurisdictional question having been brought direct to this Court, we issued, on application, a cease-and-desistorder bearing date of November 18, 1966.

1. As starting point, we have the rule-long in standing and frequent in application that jurisdiction over thesubject matter is conferred only by the Constitution or law. It cannot be fixed by the will of the parties; itcannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties.Neither is it conferred by acquiescence of the court.4Constitutionally viewed, apportionment of jurisdiction isvested in Congress.5Congress may not delegate that power.6We may not even look to the Rules of Court insearch of jurisdiction jurisdictional boundaries. For indeed, the constitutional authority of the Supreme Courton this point is circumscribed in the zone properly denominated as the promulgation of "rules concerningpleading, practice, and procedure in all courts and the admission to the practice of law"; 7and, consequentlyto determine the "means, ways or manner in which said jurisdiction, as fixed by the Constitution and acts ofCongress, shall be exercised".8Rules of Court must yield to substantive laws9of which jurisdiction is asegment. A mistake in statutory jurisdiction may not be corrected by executive fiat, "but by legislation".10

Well may we profit from the wise pronouncement in Manila Railroad Co. vs. Attorney-General, supra, atpages 529-530, thus: "Certain statutes confer jurisdiction, power, or authority. Others provide for theprocedure by which that power or authority is projected into judgment. The one class deals with the powersof the court in the real and substantive sense; the other with the procedure by which such powers are putinto action. The one is the thing itself ; the other is the vehicle by which the thing is transferred from the courtto the parties. The whole purpose and object of procedure is to make the powers of the court fully andcompletely available for justice. ... The purpose of such a procedure is not to restrict the jurisdiction of thecourt over the subject matter, but to give it effective facility in righteous action. ..."

2. And now we come to the jurisdictional area allocated to inferior courts. A rule, the validity of which is

recognized, is that jurisdiction of an inferior court will not be presumed; "it must appear clearly from statuteor it will not be held to exist."11Such jurisdiction cannot be broadened upon "doubtful inferences" drawn fromstatutes. Absent a statutory grant, neither convenience nor assumed justice or propriety of the exercisethereof in a particular class of cases "can justify the assumption of jurisdiction" by said courts.12

3. Jurisprudence teaches that the averments of the complaint, taken as a whole, are what determine thenature of the action, and therefore, the court's jurisdiction.13

But just exactly what does Maxima de Jesus desire in her complaint below? In plain language, she asks ofthe court to compel two sets of defendants to toe the line: Shell to continue with the previous manner ofpayment (forma de pago) of rentals by means of a check drawn in her favor alone; and the dissenting co-owners to pay her the 10% of the rentals as compensation to which she claims she is entitled as

administratrix of the property per agreement. By this she hopes to pay herself, as against her defendantco-owners, the 10% of the latter's share in the monthly rentals (P1,850.80 from October 1966, to December31, 1975; and P2,074.07 from thence to December 31, 1980). A careful and considerate examination of thecomplaint below as a whole brings to the fore the fact that plaintiff Maxima de Jesus asks that thesedefendants comply faithfully with their respective commitments. Implicit, too, in the complaint is the demandthat her said co-owners recognize her as administratrix. It is in the context just recited that plaintiff's actionbelow comes within the concept of specific performance of contract. And in this posture, we express theview that jurisdiction resides in the court of first instance. For, specific performance the subject of thelitigation "is not capable of pecuniary estimation".14


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A case with factual environment similar to the present is Manufacturer's Distributors, Inc. vs. Yu Siu Liong, L-21285, April 29, 1966. There, plaintiff sued defendant in the City Court of Manila to accept delivery of 74,500pieces of plastifilm bags, balance of 100,000 pieces ordered by defendant, which the latter for no justifiablereason refused to accept. The prayer of the complaint is that defendant be ordered to pay plaintiffP3,376.00, total value of the 100,000 pieces of plastifilm bags. Defendant moved to dismiss. Ground: Thesubject matter of the litigation is "specific performance" and, therefore, within the exclusive jurisdiction of thecourt of first instance. The City Court upheld defendant, dismissed the complaint. And the Court of First

Instance affirmed. Before this Coat, plaintiff contended that "the subject of the litigation was the 100,000pieces of plastifilm bags contracted for by defendant at a total price of P3,376.00, and, therefore, it wassusceptible of pecuniary estimation". This Court, in an opinion by Mr. Justice Jose B. L. Reyes, ruled that theCity Court of Manila had no jurisdiction, and declared:

That plaintiff's complaint also sought the payment by the defendant of P3,376.00 plus interest andattorney's fees, does not give a pecuniary estimation to the litigation, for the payment of suchamounts can only be ordered as a consequence of the specific performance primarily sought. Inother words, such payment would be but an incident or consequence of defendant's liability forspecific performance. If no such liability is judicially declared, the payment can not be awarded.Hence, the amounts sought do not represent the value of the subject of litigation.

This Court there lifted from Mebane Cotton Breeding St'n vs. Sides, 257 SW 302; 21 C.J.S., 59, note, thefollowing, which is indeed illuminating:

The Court has no jurisdiction of a suit for specific performance of a contract, although the damagesalleged for its breach, if permitted, are within the amount of which that court has jurisdiction.

It will avail respondents nothing when they say that what they seek is to prevent Maxima de Jesus frombeing defrauded of her 10% compensation to only P185.08, covering the October, 1966 rental; and thatshould defendants below insist in defrauding her of her share corresponding to any other month, inrespondents' language, "entonces se podra repetir igual demanda por ese mes".15Reasons there are whichwill stop us from giving our imprimatur to this advocacy. Courts will be swamped with her complaints.Multiplicity of suits is obnoxious to the administration of justice. Besides, the breach of contract chargedagainst defendants below is total and indivisible. Monthly rentals will have to run through a number of years.There is an unqualified refusal to perform the contract. Such refusal goes to the entire contract. It is treatedas a complete breach. Therefore, but one action specific performance may be presented. For thataction may not be split; successive actions may not be maintained.16Especially is this principle true in thecase before us. For, nowhere in the complaint filed on October 3, 1966, is there an averment that at the time

jurisdiction was sought in the City Court, the October, 1966 rental was already due and payable. As a matterof fact, in Annex 2 of respondents' answer before this Court, which is Shell's answer to the complaint below,the following averment in paragraph 13 appears: "SHELL has to pay the monthly rentals of P3,500 within thefirst ten (10) days of each contract month."

Nothing in the statute books would confer jurisdiction on city courts over actions where specific performanceof contract is primarily sought. Result: The city court has no jurisdiction over the subject matter.17

4. Nor does the law grant the city courts power to take cognizance of a case for final injunction. On thecontrary, such authority is expressly granted by statute to courts of first instance in the exercise of theiroriginal jurisdiction.18And the city court is without jurisdiction to hear and determine the case for finalinjunction against Shell. .

5. But let us assume that what plaintiff below claims, as against her co-owners, is but a judgment for thesmall sum of P185.08, her compensation for the month of October, 1966. Nonetheless, the city courtremains without jurisdiction. This is because the sum of money action may not be divorced from theinjunction suit. Both of them are the subject of only one complaint. For, really, without a mandatory injunctionto Shell to issue the checks in plaintiff's favor, the certainty of collecting her alleged compensation becomesproblematical. The action then is indivisible. And, the city court's jurisdiction must yield to the jurisdiction ofthe higher court of first instance. Expediency and convenience so demand.19

6. Where much space was devoted by counsel for the parties herein is on the question of the power of thecity court to issue the disputed writ of preliminary injunction earlier transcribed.

Historically speaking, the 1901 original organic act of courts in the Philippines (Act 136 of the PhilippineCommission) was silent on the power of the city (Justice of the peace) court to issue preliminary injunction. Neitherdid the old 1901 Code of Civil Procedure (Act 190) grant this power to said court. When a later statute, Act 2041 ofthe Philippine Legislature (1911), did empower said court to issue preliminary injunction, its exercise was limited tocases involving forcible entry. And, subsequent legislation's also carry this provision, viz: Act 2131, effectiveFebruary 1, 1912; Act 3764, effective November 26, 1930; Act 3881, effective November 14, 1931; and the presentJudiciary Act of 1948, as amended.


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To be sure temporary injunctions could also be issued in cases other than forcible entry; but then only municipalcourts in provincial capitals are privileged to grant the same, and solely in the absence of the district judge. 20

In Piit vs. de Lara, 58 Phil. 765, 766-767,21this Court was asked to rule on the question of whether a justice of thepeace may issue a writ of preliminary injunction in an illegal detainer suit. The answer was "No". Because the lawlimits the issuance of such writ only to forcible entry cases. We then ruled out the preliminary injunction in the illegaldetainer case as in excess of his jurisdiction.

The strong point on which respondents herein root their argument is Section 2 of Rule 58, which reads:

SEC. 2. Who may grant preliminary injunction. A preliminary injunction may be granted by the judge ofany court in which the action is pending, or by a Justice of the Court of Appeals or of the Supreme Court. Itmay also be granted by the judge of a Court of First Instance in any action pending in an inferior court withinhis district.

They place the accent on the phrase "any court in which the action is pending." Argue respondents: Since the caseis pending in the city court, it has jurisdiction to issue preliminary injunction. This ratiocination suffers frominfirmities. First, we have ruled that the city court has no jurisdiction over the subject matter; in consequence, it ispowerless to grant an ancillary remedy therein. Second, the first sentence of Section 2 should be read in context.

The last sentence of the quoted statute, namely, that injunction "may also be granted by the judge of a Court of FirstInstance in any action pending in an inferior court within his district", emphasizes the point that the city court, exceptin the cases where it is specifically authorized by statute, cannot grant preliminary injunction. Third, as adverted toelsewhere in this opinion, absent an explicit and precise grant of jurisdiction in the city court, no amount ofexpensive construction would give such court that jurisdiction. At any rate, the party plaintiff is not without speedyremedy. He may seek injunctive assistance from the court of first instance.

Upon the view we take of this case, we hereby grant the petition for certiorari and prohibition; the preliminaryinjunction we issued herein is declared final; and the respondent court is directed to dismiss Civil Case No. 153460,entitled "Maxima de Jesus, asistida de su marido Salvador Barrios, Demandantes versus Manuela de Jesus,Engracia de Jesus, Pablo de Jesus, y The Shell Company of the Philippines, Ltd., Demandados". Costs againstrespondents other than the respondent judge.

So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ., concur.


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Manila

EN BANC

G.R. No. 101538 June 23, 1992

AUGUSTO BENEDICTO SANTOS III, represented by his father and legal guardian, Augusto Benedicto Santos, petitioner,vs.NORTHWEST ORIENT AIRLINES and COURT OF APPEALS, respondents.

CRUZ, J.:

This case involves the Proper interpretation of Article 28(1) of the Warsaw Convention, reading as follows:

Art. 28. (1) An action for damage must be brought at the option of the plaintiff, in the territory of one of the High

Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or wherehe has a place of business through which the contract has been made, or before the court at the place of destination.

The petitioner is a minor and a resident of the Philippines. Private respondent Northwest Orient Airlines (NOA) is a foreign corporationwith principal office in Minnesota, U.S.A. and licensed to do business and maintain a branch office in the Philippines.

On October 21, 1986, the petitioner purchased from NOA a round-trip ticket in San Francisco. U.S.A., for his flight from San Franciscoto Manila via Tokyo and back. The scheduled departure date from Tokyo was December 20, 1986. No date was specified for his returnto San Francisco. 1

On December 19, 1986, the petitioner checked in at the NOA counter in the San Francisco airport for his scheduled departure toManila. Despite a previous confirmation and re-confirmation, he was informed that he had no reservation for his flight from Tokyo toManila. He therefore had to be wait-listed.

On March 12, 1987, the petitioner sued NOA for damages in the Regional Trial Court of Makati. On April 13, 1987, NOA moved todismiss the complaint on the ground of lack of jurisdiction. Citing the above-quoted article, it contended that the complaint could beinstituted only in the territory of one of the High Contracting Parties, before:

1. the court of the domicile of the carrier;

2. the court of its principal place of business;

3. the court where it has a place of business through which the contract had been made;

4. the court of the place of destination.

The private respondent contended that the Philippines was not its domicile nor was this its principal place of business. Neither was thepetitioner's ticket issued in this country nor was his destination Manila but San Francisco in the United States.

On February 1, 1988, the lower court granted the motion and dismissed the case. 2The petitioner appealed to the Court ofAppeals, which affirmed the decision of the lower court. 3On June 26, 1991, the petitioner filed a motion forreconsideration, but the same was denied. 4The petitioner then came to this Court, raising substantially the same issues itsubmitted in the Court of Appeals.

The assignment of errors may be grouped into two major issues, viz:

(1) the constitutionality of Article 28(1) of the Warsaw Convention; and

(2) the jurisdiction of Philippine courts over the case.

The petitioner also invokes Article 24 of the Civil Code on the protection of minors.

I

THE ISSUE OF CONSTITUTIONALITY

A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention violatesthe constitutional guarantees of due process and equal protection.

The Republic of the Philippines is a party to the Convention for the Unification of Certain Rules Relating to International Transportationby Air, otherwise known as the Warsaw Convention. It took effect on February 13, 1933. The Convention was concurred in by the


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Senate, through its Resolution No. 19, on May 16, 1950. The Philippine instrument of accession was signed by President ElpidioQuirino on October 13, 1950, and was deposited with the Polish government on November 9, 1950. The Convention became applicableto the Philippines on February 9, 1951. On September 23, 1955, President Ramon Magsaysay issued Proclamation No. 201, declaringour formal adherence thereto. "to the end that the same and every article and clause thereof may be observed and fulfilled in good faithby the Republic of the Philippines and the citizens thereof." 5

The Convention is thus a treaty commitment voluntarily assumed by the Philippine government and, as such, has the force and effect oflaw in this country.

The petitioner contends that Article 28(1) cannot be applied in the present case because it is unconstitutional. He argues that there isno substantial distinction between a person who purchases a ticket in Manila and a person who purchases his ticket in San Francisco.The classification of the places in which actions for damages may be brought is arbitrary and irrational and thus violates the dueprocess and equal protection clauses.

It is well-settled that courts will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of ajudicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involv ing a conflict of legalrights susceptible of judicial determination; the constitutional question must have been opportunely raised by the proper party; and theresolution of the question is unavoidably necessary to the decision of the case itself. 6

Courts generally avoid having to decide a constitutional question. This attitude is based on the doctrine of separation of powers, whichenjoins upon the departments of the government a becoming respect for each other's acts.

The treaty which is the subject matter of this petition was a joint legislative-executive act. The presumption is that it was first carefullystudied and determined to be constitutional before it was adopted and given the force of law in this country.

The petitioner's allegations are not convincing enough to overcome this presumption. Apparently, the Convention considered the fourplaces designated in Article 28 the most convenient forums for the litigation of any claim that may arise between the airline and itspassenger, as distinguished from all other places. At any rate, we agree with the respondent court that this case can be decided onother grounds without the necessity of resolving the constitutional issue.

B. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw Convention isinapplicable because of a fundamental change in the circumstances that served as its basis.

The petitioner goes at great lengths to show that the provisions in the Convention were intended to protect airline companies under "theconditions prevailing then and which have long ceased to exist." He argues that in view of the significant developments in the airline

industry through the years, the treaty has become irrelevant. Hence, to the extent that it has lost its basis for approval, it has becomeunconstitutional.

The petitioner is invoking the doctrine of rebus sic stantibus. According to Jessup, "this doctrine constitutes an attempt to formulate alegal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contractedhave changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be

unreasonable." 7The key element of this doctrine is the vital change in the condition of the contracting parties that theycould not have foreseen at the time the treaty was concluded.

The Court notes in this connection the following observation made in Day v. Trans World Airlines, Inc.: 8

The Warsaw drafters wished to create a system of liability rules that would cover all the hazards of air travel . . . TheWarsaw delegates knew that, in the years to come, civil aviation would change in ways that they could not foresee.

They wished to design a system of air law that would be both durable and flexible enough to keep pace with thesechanges . . . The ever-changing needs of the system of civil aviation can be served within the framework theycreated.

It is true that at the time the Warsaw Convention was drafted, the airline industry was still in its infancy. However, that circumstancealone is not sufficient justification for the rejection of the treaty at this time. The changes recited by the petitioner were, realistically, notentirely unforeseen although they were expected in a general sense only. In fact, the Convention itself, anticipating such developments,contains the following significant provision:

Article 41. Any High Contracting Party shall be entitled not earlier than two years after the coming into force of thisconvention to call for the assembling of a new international conference in order to consider any improvements whichmay be made in this convention. To this end, it will communicate with the Government of the French Republic whichwill take the necessary measures to make preparations for such conference.

But the more important consideration is that the treaty has not been rejected by the Philippine government. The doctrine of rebus sicstantibusdoes not operate automatically to render the treaty inoperative. There is a necessity for a formal act of rejection, usually madeby the head of State, with a statement of the reasons why compliance with the treaty is no longer required.

In lieu thereof, the treaty may be denounced even without an expressed justification for this action. Such denunciation is authorizedunder its Article 39, viz:

Article 39. (1) Any one of the High Contracting Parties may denounce this convention by a notification addressed tothe Government of the Republic of Poland, which shall at once inform the Government of each of the HighContracting Parties.


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(2) Denunciation shall take effect six months after the notification of denunciation, and shall operate only as regardsthe party which shall have proceeded to denunciation.

Obviously. rejection of the treaty, whether on the ground of rebus sic stantibusor pursuant to Article 39, is not a function of the courtsbut of the other branches of government. This is a political act. The conclusion and renunciation of treaties is the prerogative of thepolitical departments and may not be usurped by the judiciary. The courts are concerned only with the interpretation and application oflaws and treaties in force and not with their wisdom or efficacy.

C. The petitioner claims that the lower court erred in ruling that the plaintiff must sue in the United States, becausethis would deny him the right to access to our courts.

The petitioner alleges that the expenses and difficulties he will incur in filing a suit in the United States would constitute a constructivedenial of his right to access to our courts for the protection of his rights. He would consequently be deprived of this vital guaranty asembodied in the Bill of Rights.

Obviously, the constitutional guaranty of access to courts refers only to courts with appropriate jurisdiction as defined by law. It does notmean that a person can go to any court for redress of his grievances regardless of the nature or value of his claim. If the petitioner isbarred from filing his complaint before our courts, it is because they are not vested with the appropriate jurisdiction under the WarsawConvention, which is part of the law of our land.

II

THE ISSUE OF JURISDICTION.

A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention is a rulemerely of venue and was waived by defendant when it did not move to dismiss on the ground of improper venue.

By its own terms, the Convention applies to all international transportation of persons performed by aircraft for hire.

International transportation is defined in paragraph (2) of Article 1 as follows:

(2) For the purposes of this convention, the expression "international transportation" shall mean any transportation inwhich, according to the contract made by the parties, the place of departure and the place of destination, whether ornot there be a break in the transportation or a transshipment, are situated [either] within the territories of two High

Contracting Parties . . .

Whether the transportation is "international" is determined by the contract of the parties, which in the case of passengers is the ticket.When the contract of carriage provides for the transportation of the passenger between certain designated terminals "within theterritories of two High Contracting Parties," the provisions of the Convention automatically apply and exclusively govern the rights andliabilities of the airline and its passenger.

Since the flight involved in the case at bar is international, the same being from the United States to the Philippines and back to theUnited States, it is subject to the provisions of the Warsaw Convention, including Article 28(1), which enumerates the four places wherean action for damages may be brought.

Whether Article 28(1) refers to jurisdiction or only to venue is a question over which authorities are sharply divided. While the petitioner

cites several cases holding that Article 28(1) refers to venue rather than jurisdiction, 9there are later cases cited by the privaterespondent supporting the conclusion that the provision is jurisdictional. 10

Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon d court whichotherwise would have no jurisdiction over the subject-matter of an action; but the venue of an action as fixed by statute may bechanged by the consent of the parties and an objection that the plaintiff brought his suit in the wrong county may be waived by thefailure of the defendant to make a timely objection. In either case, the court may render a valid judgment. Rules as to jurisdiction cannever be left to the consent or agreement of the parties, whether or not a prohibition exists against their alteration. 11

A number of reasons tends to support the characterization of Article 28(1) as a jurisdiction and not a venue provision. First, the wordingof Article 32, which indicates the places where the action for damages "must" be brought, underscores the mandatory nature of Article28(1). Second, this characterization is consistent with one of the objectives of the Convention, which is to "regulate in a uniform mannerthe conditions of international transportation by air." Third, the Convention does not contain any provision prescribing rules ofjurisdiction other than Article 28(1), which means that the phrase "rules as to jurisdiction" used in Article 32 must refer only to Article28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive enumeration in Article 28(1) as "jurisdictions," which,as such, cannot be left to the will of the parties regardless of the time when the damage occurred.

This issue was analyzed in the leading case of Smith v. Canadian Pacific Airways, Ltd., 12where it was held:

. . . Of more, but still incomplete, assistance is the wording of Article 28(2), especially when considered in the light ofArticle 32. Article 28(2) provides that "questions ofprocedureshall be governed by the law of the court to which thecase is submitted" (Emphasis supplied). Section (2) thus may be read to leave for domestic decision questionsregarding the suitability and location of a particular Warsaw Convention case.

In other words, where the matter is governed by the Warsaw Convention, jurisdiction takes on a dual concept. Jurisdiction in theinternational sense must be established in accordance with Article 28(1) of the Warsaw Convention, following which the jurisdiction of aparticular court must be established pursuant to the applicable domestic law. Only after the question of which court has jurisdiction is


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determined will the issue of venue be taken up. This second question shall be governed by the law of the court to which the case issubmitted.

The petitioner submits that since Article 32 states that the parties are precluded "before the damages occurred" from amending therules of Article 28(1) as to the place where the action may be brought, it would follow that the Warsaw Convention was not intended topreclude them from doing so "after the damages occurred."

Article 32 provides:

Art. 32. Any clause contained in the contract and all special agreements entered into before the damage occurred bywhich the parties purport to infringe the rules laid down by this convention, whether by deciding the law to be applied,or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the transportation of goods,arbitration clauses shall be allowed, subject to this convention, if the arbitration is to take place within one of thejurisdictions referred to in the first paragraph of Article 28.

His point is that since the requirements of Article 28(1) can be waived "after the damages (shall have) occurred," the article should beregarded as possessing the character of a "venue" and not of a "jurisdiction" provision. Hence, in moving to dismiss on the ground oflack of jurisdiction, the private respondent has waived improper venue as a ground to dismiss.

The foregoing examination of Article 28(1) in relation to Article 32 does not support this conclusion. In any event, we agree that evengranting arguendo that Article 28(1) is a venue and not a jurisdictional provision, dismissal of the case was still in order. The respondent

court was correct in affirming the ruling of the trial court on this matter, thus:

Santos' claim that NOA waived venue as a ground of its motion to dismiss is not correct. True it is that NOA averredin its MOTION TO DISMISS that the ground thereof is "the Court has no subject matter jurisdiction to entertain theComplaint" which SANTOS considers as equivalent to "lack of jurisdiction over the subject matter . . ." However, thegist of NOA's argument in its motion is that the Philippines is not the proper place where SANTOS could file theaction meaning that the venue of the action is improperly laid. Even assuming then that the specified ground of themotion is erroneous, the fact is the proper ground of the motion improper venue has been discussed therein.

Waiver cannot be lightly inferred. In case of doubt, it must be resolved in favor of non-waiver if there are special circumstancesjustifying this conclusion, as in the petition at bar. As we observed in Javier vs. Intermediate Court of Appeals: 13

Legally, of course, the lack of proper venue was deemed waived by the petitioners when they failed to invoke it intheir original motion to dismiss. Even so, the motivation of the private respondent should have been taken into

account by both the trial judge and the respondent court in arriving at their decisions.

The petitioner also invokes KLM Royal Dutch Airlines v. RTC,14a decision of our Court of Appeals, where it was held that Article28(1) is a venue provision. However, the private respondent avers that this was in effect reversed by the case ofAranas v.United Airlines, 15where the same court held that Article 28(1) is a jurisdictional provision. Neither of these cases isbinding on this Court, of course, nor was either of them appealed to us. Nevertheless, we here express our ownpreference for the later case of Aranas insofar as its pronouncements on jurisdiction conform to the judgment we nowmake in this petition.

B. The petitioner claims that the lower court erred in not ruling that under Article 28(1) of the Warsaw Convention, thiscase was properly filed in the Philippines, because Manila was the destination of the plaintiff.

The Petitioner contends that the facts of this case are analogous to those in Aanestad v. Air Canada. 16In that case, Mrs. Silverberg

purchased a round-trip ticket from Montreal to Los Angeles and back to Montreal. The date and time of departure werespecified but not of the return flight. The plane crashed while on route from Montreal to Los Angeles, killing Mrs.Silverberg. Her administratrix filed an action for damages against Air Canada in the U.S. District Court of California. Thedefendant moved to dismiss for lack of jurisdiction but the motion was denied thus:

. . . It is evident that the contract entered into between Air Canada and Mrs. Silverberg as evidenced by the ticketbooklets and the Flight Coupon No. 1, was a contract for Air Canada to carry Mrs. Silverberg to Los Angeles on acertain flight, a certain time and a certain class, but that the time for her to return remained completely in her power.Coupon No. 2 was only a continuing offer by Air Canada to give her a ticket to return to Montreal between certaindates. . . .

The only conclusion that can be reached then, is that "the place of destination" as used in the Warsaw Convention isconsidered by both the Canadian C.T.C. and the United States C.A.B. to describe at least two "places ofdestination,"viz., the "place of destination" of aparticularflight either an "outward destination" from the "point oforigin" or from the "outward point of destination" to any place in Canada.

Thus the place of destination under Art. 28 and Art. 1 of the Warsaw Convention of the flight on which Mrs. Silverbergwas killed, was Los Angeles according to the ticket, which was the contract between the parties and the suit isproperly filed in this Court which has jurisdiction.

The Petitioner avers that the present case falls squarely under the above ruling because the date and time of his return flight to SanFrancisco were, as in the Aanestad case, also left open. Consequently, Manila and not San Francisco should be considered thepetitioner's destination.


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The private respondent for its part invokes the ruling in Butz v. British Airways, 17where the United States District Court (EasternDistrict of Pennsylvania) said:

. . . Although the authorities which addressed this precise issue are not extensive, both the cases and thecommentators are almost unanimous in concluding that the "place of destination" referred to in the WarsawConvention "in a trip consisting of several parts . . . is the ultimate destinationthat is accorded treaty jurisdiction." . . .

But apart from that distinguishing feature, I cannot agree with the Court's analysis in Aanestad; whether the returnportion of the ticket is characterized as an option or a contract, the carrier was legally bound to transport thepassenger back to the place of origin within the prescribed time and. the passenger for her part agreed to pay thefare and, in fact, did pay the fare. Thus there was mutuality of obligation and a binding contract of carriage, The factthat the passenger could forego her rights under the contract does not make it any less a binding contract. Certainly,if the parties did not contemplate the return leg of the journey, the passenger would not have paid for it and the carrierwould not have issued a round trip ticket.

We agree with the latter case. The place of destination, within the meaning of the Warsaw Convention, is determined by the terms ofthe contract of carriage or, specifically in this case, the ticket between the passenger and the carrier. Examination of the petitioner'sticket shows that his ultimate destination is San Francisco. Although the date of the return flight was left open, the contract of carriagebetween the parties indicates that NOA was bound to transport the petitioner to San Francisco from Manila. Manila should therefore beconsidered merely an agreed stopping place and not the destination.

The petitioner submits that the Butz case could not have overruled the Aanestad case because these decisions are from differentjurisdictions. But that is neither here nor there. In fact, neither of these cases is controlling on this Court. If we have preferred the Butzcase, it is because, exercising our own freedom of choice, we have decided that it represents the better, and correct, interpretation ofArticle 28(1).

Article 1(2) also draws a distinction between a "destination" and an "agreed stopping place." It is the "destination" and not an "agreedstopping place" that controls for purposes of ascertaining jurisdiction under the Convention.

The contract is a single undivided operation, beginning with the place of departure and ending with the ultimate destination. The use ofthe singular in this expression indicates the understanding of the parties to the Convention that every contract of carriage has one placeof departure and one place of destination. An intermediate place where the carriage may be broken is not regarded as a "place ofdestination."

C. The petitioner claims that the lower court erred in not ruling that under Art. 28(1) of the Warsaw Convention, this

case was properly filed in the Philippines because the defendant has its domicile in the Philippines.

The petitioner argues that the Warsaw Convention was originally written in French and that in interpreting its provisions, Americancourts have taken the broad view that the French legal meaning must govern. 18In French, he says, the "domicile" of the carriermeans every place where it has a branch office.

The private respondent notes, however, that in Compagnie Nationale Air France vs. Giliberto, 19it was held:

The plaintiffs' first contention is that Air France is domiciled in the United States. They say that the domicile of acorporation includes any country where the airline carries on its business on "a regular and substantial basis," andthat the United States qualifies under such definition. The meaning of domicile cannot, however, be so extended. Thedomicile of a corporation is customarily regarded as the place where it is incorporated, and the courts have given themeaning to the term as it is used in article 28(1) of the Convention. (See Smith v. Canadian Pacific Airways, Ltd. (2d

Cir. 1971), 452 F2d 798, 802; Nudo v. Societe Anonyme Belge d' Exploitation de la Navigation Aerienne SabenaBelgian World Airlines (E.D. pa. 1962). 207 F. Supp, 191; Karfunkel v. Compagnie Nationale Air France (S.D.N.Y.1977), 427 F. Suppl. 971, 974). Moreover, the structure of article 28(1), viewed as a whole, is also incompatible withthe plaintiffs' claim. The article, in stating that places of business are among the bases of the jurisdiction, sets out twoplaces where an action for damages may be brought; the country where the carrier's principal place of business islocated, and the country in which it has a place of business through which the particular contract in question wasmade, that is, where the ticket was bought, Adopting the plaintiffs' theory would at a minimum blur these carefullydrawn distinctions by creating a third intermediate category. It would obviously introduce uncertainty into litigationunder the article because of the necessity of having to determine, and without standards or criteria, whether theamount of business done by a carrier in a particular country was "regular" and "substantial." The plaintiff's request toadopt this basis of jurisdiction is in effect a request to create a new jurisdictional standard for the Convention.

Furthermore, it was argued in another case 20that:

. . . In arriving at an interpretation of a treaty whose sole official language is French, are we bound to apply Frenchlaw? . . . We think this question and the underlying choice of law issue warrant some discussion

. . . We do not think this statement can be regarded as a conclusion that internal French law is to be "applied" in thechoice of law sense, to determine the meaning and scope of the Convention's terms. Of course, French legal usagemust be considered in arriving at an accurate English translation of the French. But when an accurate Englishtranslation is made and agreed upon, as here, the inquiry into meaning does not then revert to a quest for a past orpresent French law to be "applied" for revelation of the proper scope of the terms. It does not follow from the fact thatthe treaty is written in French that in interpreting it, we are forever chained to French law, either as it existed when thetreaty was written or in its present state of development. There is no suggestion in the treaty that French law wasintended to govern the meaning of Warsaw's terms, nor have we found any indication to this effect in its legislativehistory or from our study of its application and interpretation by other courts. Indeed, analysis of the cases indicatesthat the courts, in interpreting and applying the Warsaw Convention, have, not considered themselves bound to applyFrench law simply because the Convention is written in French. . . .


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We agree with these rulings.

Notably, the domicile of the carrier is only one of the places where the complaint is allowed to be filed under Article 28(1). By specifyingthe three other places, to wit, the principal place of business of the carrier, its place of business where the contract was made, and theplace of destination, the article clearly meant that these three other places were not comprehended in the term "domicile."

D. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw Convention does notapply to actions based on tort.

The petitioner alleges that the gravamen of the complaint is that private respondent acted arbitrarily and in bad faith, discriminatedagainst the petitioner, and committed a willful misconduct because it canceled his confirmed reservation and gave his reserved seat tosomeone who had no better right to it. In short. the private respondent committed a tort.

Such allegation, he submits, removes the present case from the coverage of the Warsaw Convention. He argues that in at least twoAmerican cases, 21it was held that Article 28(1) of the Warsaw Convention does not apply if the action is based on tort.

This position is negated by Husserl v. Swiss Air Transport Company,22where the article in question was interpreted thus:

. . . Assuming for the present that plaintiff's claim is "covered" by Article 17, Article 24 clearly excludes any relief notprovided for in the Convention as modified by the Montreal Agreement. It does not, however, limit the kind of cause ofaction on which the relief may be founded; rather it provides that any action based on the injuries specified in Article17 "however founded," i.e., regardless of the type of action on which relief is founded, can only be brought subject tothe conditions and limitations established by the Warsaw System. Presumably, the reason for the use of the phrase"however founded," in two-fold: to accommodate all of the multifarious bases on which a claim might be founded indifferent countries, whether under code law or common law, whether under contract or tort, etc.; and to include allbases on which a claim seeking relief for an injury might be founded in any one country. In other words, if the injuryoccurs as described in Article 17, any relief available is subject to the conditions and limitations established by theWarsaw System, regardless of the particular cause of action which forms the basis on which a plaintiff could seekrelief . . .

The private respondent correctly contends that the allegation of willful misconduct resulting in a tort is insufficient to exclude the casefrom the comprehension of the Warsaw Convention. The petitioner has apparently misconstrued the import of Article 25(l) of theConvention, which reads as follows:

Art. 25 (1). The carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or limit

his liability. if the damage is caused by his willful misconduct or by such default on his part as, in accordance with thelaw of the court to which the case is submitted, is considered to be equivalent to willful misconduct.

It is understood under this article that the court called upon to determine the applicability of the limitation provision must first be vested

with the appropriate jurisdiction. Article 28(1) is the provision in the Convention which defines that jurisdiction. Article 22 23merely fixesthe monetary ceiling for the liability of the carrier in cases covered by the Convention. If the carrier is indeed guilty of willfulmisconduct, it can avail itself of the limitations set forth in this article. But this can be done only if the action has first beencommenced properly under the rules on jurisdiction set forth in Article 28(1).

III

THE ISSUE OF PROTECTION TO MINORS

The petitioner calls our attention to Article 24 of the Civil Code, which states:

Art. 24. In all contractual property or other relations, when one of the parties is at a disadvantage on account of hismoral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilantfor his protection.

Application of this article to the present case is misplaced. The above provision assumes that the court is vested with jurisdiction to rulein favor of the disadvantaged minor, As already explained, such jurisdiction is absent in the case at bar.

CONCLUSION

A number of countries have signified their concern over the problem of citizens being denied access to their own courts because of therestrictive provision of Article 28(1) of the Warsaw Convention. Among these is the United States, which has proposed an amendment

that would enable the passenger to sue in his own domicile if the carrier does business in that jurisdiction. The reason for this proposalis explained thus:

In the event a US citizen temporarily residing abroad purchases a Rome to New York to Rome ticket on a foreign aircarrier which is generally subject to the jurisdiction of the US, Article 28 would prevent that person from suing thecarrier in the US in a "Warsaw Case" even though such a suit could be brought in the absence of the Convention.

The proposal was incorporated in the Guatemala Protocol amending the Warsaw Convention, which was adopted at Guatemala City onMarch 8,1971. 24But it is still ineffective because it has not yet been ratified by the required minimum number of contracting parties.Pending such ratification, the petitioner will still have to file his complaint only in any of the four places designated byArticle 28(1) of the Warsaw Convention.


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The proposed amendment bolsters the ruling of this Court that a citizen does not necessarily have the right to sue in his own courtssimply because the defendant airline has a place of business in his country.

The Court can only sympathize with the petitioner, who must prosecute his claims in the United States rather than in his own country atleast inconvenience. But we are unable to grant him the relief he seeks because we are limited by the provisions of the WarsawConvention which continues to bind us. It may not be amiss to observe at this point that the mere fact that he will have to litigate in theAmerican courts does not necessarily mean he will litigate in vain. The judicial system of that country in known for its sense of fairnessand, generally, its strict adherence to the rule of law.

WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.

Narvasa, C.J., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon andBellosillo, JJ., concu


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SECOND DIVISION

[G.R. No. 57127. August 5, 1992.]

RHODORA DEL CASTILLO, Petitioner, v. HON. CANDIDO AGUINALDO, and SPOUSES ALBERTO OUANO andCHRISTINA RETUYA-OUANO, Respondents.

Escasinas, Partner & Associates for Petitioner.

Pablo B. Badong & Associates for Private Respondents.

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE AVERMENTS IN THE COMPLAINT; CASE AT BAR. Settled is therule that jurisdiction of the court and the nature of the action are determined by the averments in the complaint. Thecomplaint alleges that demand to vacate the premises was made in 1977, which is not disputed by petitioner. Since the

complaint filed by the respondents was in 1981, which is definitely more than one year from the termination of possession bythe herein petitioner, the proper action to be filed is an accion publiciana or an action for recovery of possession.

2. ID.; CIVIL PROCEDURE; MOTION TO DISMISS; REQUIREMENTS THAT IT MAY BE ACTED UPON BY THE COURT.

Petitioners motion to dismiss did not contain a notice of the time and place of hearing, and is therefore a useless piece ofpaper with no legal effect. Rule 15 of the Rules of Court provides: "Sec. 4: Notice of a motion shall be served by theapplicant to all parties concerned, at least three (3) days before the hearing thereof, together with a copy of the motion, andof any affidavits and other papers accompanying it. The court, however, for good cause may hear a motion on shorter notice,especially on matters which the court may dispose of on its own motion. "Sec. 5: The notice shall be directed to the partiesconcerned, and shall state the time and place for the hearing of the motion. "Sec. 6: No motion shall be acted upon by thecourt, without proof of service of the notice thereof, except when the court is satisfied that the rights of the adverse party or

parties are not affected.

3. ID.; ID.; ID.; ID.; EFFECT OF FAILURE TO COMPLY THEREOF. Any motion that does not comply with the foregoing rulesshould not be accepted for filing and if filed, is not entitled to judicial cognizance and does not affect any reglementary period

involved for the filing of the requisite pleading. Thus, where the motion is directed to the Clerk of Court, not to the partiesand merely states that the same is submitted "for the resolution of the court upon receipt thereof" said motion is fatallydefective. Not having complied with the rules, the "Motion to Dismiss" filed by herein petitioner did not stay the running ofthe reglementary period to file an answer. Consequently, the Order of Default and the Judgment of Default by the trial court

is in order and the averments in the Motion to Dismiss can be disregarded.

4. ID.; ID.; UNLAWFUL DETAINER; DISTINGUISHED FROM RECOVERY OF POSSESSION. The case of Spouses Medina andBernal v. Valdellon [G.R. No. 38510, 63 SCRA 278, (1975)], is il luminating in pointing out the distinction between accion

publiciana or recovery of possession and unlawful detainer. "The nature of the action embodied in the complaint is one forrecovery of possession brought before the Court of First Instance by the alleged owners of a piece of land against thedefendants who were supposed to have unlawfully continued in possession since 1969 when they were supposed to return itto plaintiffs, plus damages. That the action is not for unlawful detainer contemplated in Rule 70 of the Rules of Court, whichfalls under the exclusive original jurisdiction of the city courts or municipal courts, is very apparent because an action ofunlawful detainer is defined as withholding by a person from another for not more than one year, of the possession of a landor building to which the latter is entitled after the expiration or termination of the formers right to hold possession by v irtueof a contract express or implied."

D E C I S I O N

NOCON,J.:

This is a special civil action of certiorari, prohibition, mandamus and injunction with an urgent prayer for the issuance of arestraining order filed by the petitioner which seeks to annul the Order of respondent Court, 1 the dispositive portion ofwhich reads:jgc:chanrobles.com.ph

"WHEREFORE, finding the application for the issuance ex-parte by this Honorable Court of the writ of preliminary mandatory

injunction to be sufficient in form and substance and to be founded and meritorious, the same is hereby GRANTED.

Accordingly, upon the filing by plaintiffs of a bond in the amount of Five Thousand (P5,000.00) Pesos to protect thedefendants from whatever damages they may sustain under the circumstances heretofore described, the said bond to beapproved by this Honorable Court, let the corresponding WRIT OF PRELIMINARY MANDATORY INJUNCTION issue forthwith

ex-parte, commanding the defendants, their collective helpers, laborers, privies, and others who may come in aid of them toimmediately vacate the commercial building subject-matter of the above-entitled case and to turn over the physical

possession and control of said premises to the plaintiffs and for them not to return thereto until further orders from thisHonorable Court, and ordering the sheriff concerned to see to the effective enforcement of the said writ. chanroblesvirtualawlibrary

SO ORDERED." 2

The facts of the case are as follows: chanrob1esvirtual 1aw library

Respondents are owners of a parcel of residential/commercial land consisting of One Hundred Ninety-Two (192) squaremeters, described as a three (3) story, three (3) door building, strategically located along the national highway ofSubangdaku, Mandaue City, which would easily earn a monthly rental of a few thousand pesos.


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Tan Ching Hai and spouses Domingo and Ester Tan happen to be close friends of herein respondents, and were allowed touse the entire building on their pretense that they do not have a place to stay and upon agreement that the same shall beused for residential purposes only and would peacefully and willingly surrender the premises to the respondents in case ofneed by the latter. Respondents did not require any amount of rental for the use of the aforesaid building. However, the Tan

spouses, out of their conscience paid a meager amount of Two Hundred Forty (P240.00) Pesos not as rental but as a token ofgratitude.

Tan Ching Hai and spouses Tan have been using and in fact been doing business out of the building since January, 1970 until

sometime in 1977 when respondents asked the former to vacate the aforesaid building. They now refuse to vacate saidbuilding. Moreover, the spouses violated their undertakings to herein respondents consisting of the fact that strangers, likeherein petitioner Rhodora del Castillo, were made to stay in the premises and portions of the building were converted to afactory, in gross violation of their previous commitment. Conferences were had to resolve in a peaceful manner the surrenderof the premises. Petitioner del Castillo then agreed to voluntarily vacate the premises in question peacefully and without

further demand on January 31, 1981. This, petitioner failed to do in spite of a grace period given to her which expired onFebruary 28, 1981. There being no intention by the petitioner to vacate the premises, respondents were forced to file a civilcase 3 for damages amounting to Sixty Thousand (P60,000.00) Pesos and for the recovery of possession of realty and or

specific performance, with application for preliminary mandatory injunction.

On March 19, 1981, the trial Judge issued an Order 4 granting respondents application for preliminary mandatory injunction,and herein petitioner was ordered to immediately vacate the premises in question.

On March 26, 1981 and within the reglementary period, petitioner instead of filing an answer, filed a "Motion to Dismiss" onthe ground that the Court had no jurisdiction over the subject matter or nature of the action or suit, and that the complaint is

not verified as required by law. The "Motion to Dismiss" however, did not contain a notice of the time and place of hearing.

Accordingly, the trial court issued on April 10, 1981 two (2) Orders 5 viz: chanrob1esvirtual1aw library

1. One, declaring herein petitioners in default; and

2. Another, denying herein petitioners "Motion to Dismiss"

On April 18, 1981, petitioners filed their Motion to Set Aside Order of Default and Motion to Dismiss. 6

Two days later, or on April 20, 1981, the trial court rendered its decision against herein petitioner. Hence, the filing of theinstant petition raising as issues the following:chanroblesvirtual lawlibrary

1. Whether the trial court has jurisdiction over the subject matter or nature of the action or suit which is a simple case ofejectment; and

2. Whether the trial court has committed a grave abuse of discretion when it caused to issue a writ of preliminary mandatoryinjunction and placed the plaintiffs in possession of the property.

Actually, the question before the Court is whether the case at bar is an ejectment case and therefore, within the jurisdiction

of the city or municipal courts, or a case for recovery of possession, falling within the jurisdiction of the then Court of FirstInstance.

Settled is the rule that jurisdiction of the court and the nature of the action are determined by the averments in thecomplaint. 7

The complaint alleges that demand to vacate the premises was made in 1977, which is not disputed by petitioner. Since the

complaint filed by the respondents was in 1981, which is definitely more than one year from the termination of possession bythe herein petitioner, the proper action to be filed is an accion publiciana or an action for recovery of possession.

Likewise, petitioners motion to dismiss did not contain a notice of the time and place of hearing, and is therefore a uselesspiece of paper with no legal effect. Rule 15 of the Rules of Court provides: jgc:chanrobles.com.ph

"Sec. 4: Notice of a motion shall be served by the applicant to all parties concerned, at least three (3) days before thehearing thereof, together with a copy of the motion, and of any affidavits and other papers accompanying it. The court,however, for good cause may hear a motion on shorter notice, especially on matters which the court may dispose of on itsown motion.

"Sec. 5: The notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the

motion.

"Sec. 6: No motion shall be acted upon by the court, without proof of service of the notice thereof, except when the court issatisfied that the rights of the adverse party or parties are not affected. chanrobles.com : virtuallaw library

Any motion that does not comply with the foregoing rules should not be accepted for filing and if filed, is not entitled tojudicial cognizance and does not affect any reglementary period involved for the filing of the requisite pleading. Thus, wherethe motion is directed to the Clerk of Court, not to the parties and merely states that the same is submitted "for the

resolution of the court upon receipt thereof" said motion is fatally defective. 8

In the instant case, the notice of hearing in the petitioners "Motion to Dismiss" was addressed to the Clerk of Court in thiswise:chanrob1esvirtual 1aw library

THE CLERK OF COURT

CFI, BRANCH IX

GREETINGS:chanrob1esvirtual1aw library


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Please submit the foregoing motion for the kind consideration of the Honorable Court immediately upon your receipt hereofwithout need of presence of counsel and further arguments. 9

Not having complied with the rules, the "Motion to Dismiss" filed by herein petitioner did not stay the running of the

reglementary period to file an answer. Consequently, the Order of Default and the Judgment of Default by the trial court is inorder and the averments in the Motion to Dismiss can be disregarded.

As to the issue of jurisdiction, the case of Spouses Medina and Bernal v. Valdellon 10 is illuminating in pointing out the

distinction between accion publiciana or recovery of possession and unlawful detainer.

"The nature of the action embodied in the complaint is one for recovery of possession brought before the Court of FirstInstance by the alleged owners of a piece of land against the defendants who were supposed to have unlawfully continued inpossession since 1969 when they were supposed to return it to plaintiffs, plus damages. That the action is not for unlawful

detainer contemplated in Rule 70 of the Rules of Court, which falls under the exclusive original jurisdiction of the city courtsor municipal courts, is very apparent because an action of unlawful detainer is defined as withholding by a person fromanother for not more than one year, of the possession of a land or building to which the latter is entitled after the expiration

or termination of the formers right to hold possession by virtue of a contract express or implied."

The court a quo committed no error in declaring petitioner in default. The demand by the herein respondents to vacate thepremises was made as early as 1977. The complaint for recovery of possession was filed by the respondents in 1981 which ismore than one year from the expiration and/or termination of possession. The instant case then, is an accion publiciana orfor recovery of possession and not an ejectment case. chanrobles.com:cralaw:red

WHEREFORE, finding no grave abuse of discretion on the part of the trial judge, in issuing the Order appealed from, thepetition is hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Padilla and Regalado,JJ., concur


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5. Ordering defendant Inayan to pay to plaintiff Jalbuena de Leon the sum of P3,000.00 as attorney's fees; P1,000.00 as litigation expenses, and P2,000.00 as moral damages, plus costs; and

6. Dismissing defendant's counterclaim for lack of merit. 4

On appeal to the Court of Appeals, private respondent raised the sole issue of jurisdiction and alleged that the lowercourt, acting as Court of Agrarian Relations, had no jurisdiction over the action.

The respondent appellate court, on May 24, 1990, affirmed the trial court's decision, disposing as follows:

WHEREFORE, premises considered, the decision appealed from should be, as it is herebyAFFIRMED, with a MODIFICATION that the period within which appellant should be ordered to paythe rentals in arrears now covers the years 1983 to 1990. Costs against appellant.5

It held that while jurisdiction must exist as a matter of law, private respondent's attack on the jurisdiction of the lowercourt must fail for he is guilty of estoppel. 6Despite several opportunities to question the jurisdiction of the lower court,he failed to do so. Moreover, it was he who insisted, through his misrepresentations, that the case, involving, as it does,purely agrarian issues, should be referred to the Ministry of Agrarian Reform. 7Finally, the appellate court held that sinceregional trial courts, by express provision of B.P. 129, Section 24, now have exclusive original jurisdiction over agrarian

cases, but still applying the special rules of agrarian procedure, it was no error for the court below, even if acting as anagrarian court, to resolve a controversy involving a civil lease. 8

Private respondent's motion to reconsider the above decision was granted by the Court of Appeals on November 8,1990. Respondent court then set aside its earlier decision and dismissed the civil case filed by petitioner below (CivilCase No. 15628) for want of jurisdiction. In its amended decision, the appellate court held that petitioner's complaintbelow was anchored on accin interdictal, a summary action for recovery of physical possession that should havebeen brought before the proper inferior court. To make private respondent a deforciant so that the unlawful detainersuit may be properly filed, it is necessary to allege when demand to pay rent and to vacate were made. The courtfound that this requisite was not specifically met in petitioner's complaint below. Such failure on her part is fatal toher cause since the one-year period within which a detainer suit may be instituted had not yet elapsed when CivilCase No. 15628 was filed. Therefore, the court below was devoid of jurisdiction to entertain the case. 9

Hence this petition for review.

It is petitioner's contention that the Court of Appeals erred in holding that the case below is an unlawful detaineraction. Since the parties did not confine themselves to issues pertaining solely to possession but also to the natureof the lease contract, the case is not one of unlawful detainer but one incapable of pecuniary estimation.

Next, petitioner argues that the issue of lack of jurisdiction should not have been resolved in favor of privaterespondent who had voluntarily submitted to the jurisdiction of the court a quo and raised the issue only after anadverse decision was rendered against him.

Aside from emphasizing the correctness of respondent court's ruling that the case below was a mere ejectmentcase, private respondent raises the issue of res judicata in his comment.

Private respondent Inayan claims that the issue in the instant petition, i.e. whether or not the trial court, acting as anagrarian court, had jurisdiction over the unlawful detainer suit filed by petitioner, had already been ruled upon by theCourt of Appeals in CA G.R. SP No. 15700 entitled "Uldarico Inayan v. Hon. Alonsagay and Corazon Jalbuena" andthe petition for review of said decision had already been denied by this Court in G.R. No. 89312. 10

The petition is impressed with merit.

The primary issue presented here revolves around the jurisdiction of the trial court, then acting as a court of agrarianrelations employing agrarian procedure, to try the suit filed by petitioner.

Jurisdiction of the court over the subject matter is conferred only by the Constitution or by law. 11It is determinable onthe basis of allegations in the complaint. 12

An error in jurisdiction can be raised at any time and even for the first time on appeal. 13Barring highly meritoriousand exceptional circumstances, 14neither estoppel nor waiver may be raised as defenses to such an error. 15

In order to determine whether the court below had jurisdiction, it is necessary to first ascertain the nature of thecomplaint filed before it.

A study of the complaint instituted by petitioner in the lower court reveals that the case is, contrary to the findings ofthe respondent appellate court, not one of unlawful detainer.


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An unlawful detainer suit (accin interdictal) together with forcible entry are the two forms of an ejectment suit thatmay be filed to recover possession of real property. Aside from the summary action of ejectment, accin

publicianaor the plenary action to recover the right of possession and accin reivindicatoriaor the action to recoverownership which includes recovery of possession, make up the three kinds of actions to judicially recoverpossession. 16

Illegal detainer consists in withholding by a person from another of the possession of a land or building to which the

latter is entitled after the expiration or termination of the former's right to hold possession by virtue of a contract,express or implied. 17An ejectment suit is brought before the proper inferior court to recover physical possession only orpossession de factoand not possession de jure, where dispossession has lasted for not more than one year. Forcibleentry and unlawful detainer are quieting processes and the one-year time bar to the suit is in pursuance of the summarynature of the action. 18The use of summary procedure in ejectment cases is intended to provide an expeditious means ofprotecting actual possession or right to possession of the property. They are not processes to determine the actual title toan estate. If at all, inferior courts are empowered to rule on the question of ownership raised by the defendant in suchsuits, only to resolve the issue of possession. 19Its determination on the ownership issue is, however, not conclusive.

Accin publicianais the plenary action to recover the right of possession when dispossession has lasted for morethan one year or when dispossession was effected by means other than those mentioned in Rule 70. 20Underthese circumstances, a plenary action 21may be brought before the regional trial court.22

Accin reivindicatoria, which is an action to recover ownership, including the recovery of possession, should also befiled in the regional trial court.

Petitioner's complaint was for "Termination of Civil Law Lease; Recovery of Possession; Recovery of UnpaidRentals and Damages" 23After alleging the facts regarding the lease of the subject property, including Inayan's refusal topay rent and to vacate, petitioner prayed that the trial court declare the civil law lease (and not "tenancy or agriculturallease") terminated. Plaintiff likewise prayed that defendant be ordered to vacate the premises, pay back rentals, unpaidirrigation fees, moral and exemplary damages and litigation fees.

Clearly, the case involves more than just the issue of possession. It was necessary for the trial court below todetermine whether the lease was civil and not an agricultural or tenancy relationship and whether its terminationwas in order. More specifically, the complaint emphasized, in paragraph 4:

That in entering into the contract, Jesus Jalbuena and defendant Uldarico Inayan definitely agreedthat the contract was to be CIVIL LAW LEASE NOT TENANCY OR AGRICULTURAL LEASE, for aperiod of one (1) year renewable for the same period at the option and agreement of the parties; 24

As correctly determined by the trial court, one of the issues in the case below was whether or not the contractentered into by the plaintiff and defendant was a civil law lease or an agricultural lease. If the former, the next issuewas whether the lease contract between the parties had been terminated in 1983 for failure of defendant to pay hisannual rental. 25

A detainer suit exclusively involves the issue of physical possession. The case below, however, did not concernmerely the issue of possession but as well, the nature of the lease contracted by petitioner's predecessor-in-interest

and private respondent. It likewise involved the propriety of terminating the relationship contracted by said parties,as well as the demand upon defendant to deliver the premises and pay unpaid rentals, damages and incidentalfees.

Where the issues of the case extend beyond those commonly involved in unlawful detainer suits, such as forinstance, the respective rights of parties under various contractual arrangements and the validity thereof, the case isconverted from a mere detainer suit to one "incapable of pecuniary estimation," thereby placing it under theexclusive original jurisdiction of the regional trial courts (formerly the courts of first instance). 26

Not being merely a case of ejectment, the regional trial court possessed jurisdiction to try and resolve the case.

Still on the question of jurisdiction, private respondent Inayan, as appellant before the respondent court, claimed that

the trial court, acting as a court of agrarian relations, did not have jurisdiction over the complaint filed by petitionerbecause the latter did not concern itself with tenancy or agrarian matters. The Court of Appeals, in its originaldecision, ruled that private respondent was guilty of estoppel. Accordingly, he can not successfully raise the issue.

In the past, the principle of estoppel has been used by the courts to avoid a clear case of injustice. Its use as adefense to a jurisdictional error is more of an exception rather than the rule. The circumstances outlining estoppelmust be unequivocal and intentional, for it is an exception to standard legal norms and is generally applied only inhighly exceptional and justifiable cases. 27

We find that the situation in the case at bench falls within the ambit of justifiable cases where estoppel may beapplied. The trial court's recourse to agrarian procedure was undoubtedly provoked by private respondent Inayan's


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WHEREFORE, the petition is GRANTED. The amended decision of the Court of Appeals dated November 8, 1990in CA G.R. CV No. 19777 ("Corazon Jalbuena de Leon v. Uldarico Inayan") is SET ASIDE and the original decisiondated May 24, 1990 is REINSTATED.

Costs against private respondent.

SO ORDERED.

Feliciano and Vitug, JJ., concur.

Melo and Francisco, JJ., took no part.


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Manila

THIRD DIVISION

G.R. No. 138822 January 23, 2001

EVANGELINE ALDAY,petitioner,vs.FGU INSURANCE CORPORATION,respondent.

GONZAGA-REYES, J.:

On 5 May 1989, respondent FGU Insurance Corporation filed a complaint with the Regional Trial Court ofMakati1alleging that petitioner Evangeline K. Alday owed it P114,650.76, representing unliquidated cash advances,unremitted costs of premiums and other charges incurred by petitioner in the course of her work as an insuranceagent for respondent.2Respondent also prayed for exemplary damages, attorney's fees, and costs of suit.3Petitionerfiled her answer and by way of counterclaim, asserted her right for the payment of P104,893.45, representing direct

commissions, profit commissions and contingent bonuses earned from 1 July 1986 to 7 December 1986, and foraccumulated premium reserves amounting to P500,000.00. In addition, petitioner prayed for attorney's fees,litigation expenses, moral damages and exemplary damages for the allegedly unfounded action filed byrespondent.4On 23 August 1989, respondent filed a "Motion to Strike Out Answer With Compulsory Counterclaim

And To Declare Defendant In Default" because petitioner's answer was allegedly filed out of time.5However, the trialcourt denied the motion on 25 August 1989 and similarly rejected respondent's motion for reconsideration on 12March 1990.6A few weeks later, on 11 April 1990, respondent filed a motion to dismiss petitioner's counterclaim,contending that the trial court never acquired jurisdiction over the same because of the non-payment of docket feesby petitoner.7In response, petitioner asked the trial court to declare her counterclaim as exempt from payment ofdocket fees since it is compulsory and that respondent be declared in default for having failed to answer suchcounterclaim.8

In its 18 September 1990 Order, the trial court

9

granted respondent's motion to dismiss petitioner's counterclaim andconsequently, denied petitioner's motion. The court found petitioner's counterclaim to be merely permissive in natureand held that petitioner's failure to pay docket fees prevented the court from acquiring jurisdiction over thesame.10The trial court similar denied petitioner's motion for reconsideration on 28 February 1991. 1wphi1.nt

On 23 December 1998, the Court of Appeals11sustained the trial court, finding that petitioner's own admissions, ascontained in her answer, show that her counterclaim is merely permissive. The relevant portion of the appellatecourt's decision12is quoted herewith -

Contrary to the protestations of appellant, mere reading of the allegations in the answer a quo will readily

show that her counterclaim can in no way be compulsory. Take note of the following numbered paragraphsin her answer:

"(14) That, indeed, FGU's cause of action which is not supported by any document other than theself-serving 'Statement of Account' dated March 28, 1988 x x x

(15) That it should be noted that the cause of action of FGU is not the enforcement of the SpecialAgent's Contract but the alleged 'cash accountabilities which are not based on written agreement x xx.

x x x x

(19) x x x A careful analysis of FGU's three-page complaint will show that its cause of action is notfor specific performance or enforcement of the Special Agent's Contract rather, it is for the paymentof the alleged cash accountabilities incurred by defendant during the period form [sic] 1975 to 1986

which claim is executory and has not been ratified. It is the established rule that unenforceablecontracts, like this purported money claim of FGU, cannot be sued upon or enforced unless ratified,thus it is as if they have no effect. x x x."

To support the heading "Compulsory Counterclaim" in her answer and give the impression that thecounterclaim is compulsory appellant alleged that "FGU has unjustifiably failed to remit to defendant despiterepeated demands in gross violation of their Special Agent's Contract x x x." The reference to said contractwas included purposely to mislead. While on one hand appellant alleged that appellee's cause of action hadnothing to do with the Special Agent's Contract, on the other hand, she claim that FGU violated said contractwhich gives rise of [sic] her cause of action. Clearly, appellant's cash accountabilities cannot be the offshootof appellee's alleged violation of the aforesaid contract.


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On 19 May 1999, the appellate court denied petitioner's motion for reconsideration, 13giving rise to the presentpetition.

Before going into the substantive issues, the Court shall first dispose of some procedural matters raised by theparties. Petitioner claims that respondent is estopped from questioning her non-payment of docket fees because itdid not raise this particular issue when it filed its motion - the "Motion to Strike out Answer With CompulsoryCounterclaim And To Declare Defendant In Default" - with the trial court; rather, it was only nine months after

receiving petitioner's answer that respondent assailed the trial court's lack of jurisdiction over petitioner'scounterclaims based on the latter's failure to pay docket fees.14Petitioner's position is unmeritorious. Estoppel bylaches arises from the negligence or omission to assert a right within a reasonable time, warranting a presumptionthat the party entitled to assert it either has abandoned or declined to assert it.15In the case at bar, respondentcannot be considered as estopped from assailing the trial court's jurisdiction over petitioner's counterclaim since thisissue was raised by respondent with the trial court itself - the body where the action is pending - even before thepresentation of any evidence by the parties and definitely, way before any judgment could be rendered by the trialcourt.

Meanwhile, respondent questions the jurisdiction of the Court of Appeals over the appeal filed by petitioner from the18 September 1990 and 28 February 1991 orders of the trial court. It is significant to note that this objection to theappellate court's jurisdiction is raised for the first time before this Court; respondent never having raised this issue

before the appellate court. Although the lack of jurisdiction of a court may be raised at any stage of the action, aparty may be estopped from raising such questions if he has actively taken part in the very proceedings which hequestions, belatedly objecting to the court's jurisdiction in the event that the judgment or order subsequentlyrendered is adverse to him.16 In this case, respondent actively took part in the proceedings before the Court of

Appeals by filing its appellee's brief with the same.17Its participation, when taken together with its failure to object tothe appellate court's jurisdiction during the entire duration of the proceedings before such court, demonstrates awillingness to abide by the resolution of the case by such tribunal and accordingly, respondent is now mostdecidedly estopped from objecting to the Court of Appeals' assumption of jurisdiction over petitioner's appeal.18

The basic issue for resolution in this case is whether or not the counterclaim of petitioner is compulsory orpermissive in nature. A compulsory counterclaim is one which, being cognizable by the regular courts of justice,arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposingparty's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire

jurisdiction.19

In Valencia v. Court of Appeals,20this Court capsulized the criteria or tests that may be used in determining whethera counterclaim is compulsory or permissive, summarized as follows:

1. Are the issues of fact and lawraised by the claim and counterclaim largely the same?

2. Would res judicatabar a subsequent suit on defendant's claim absent the compulsory counterclaim rule?

3. Will substantially the same evidence support or refute plaintiff's claim as well s defendant's counterclaim?

4. Is there any logical relationbetween the claim and the counterclaim?

Another test, applied in the more recent case of Quintanilla v. Court of Appeals,21is the "compelling test ofcompulsoriness" which requires "a logical relationship between the claim and counterclaim, that is, whereconducting separate trials of the respective claims of the parties would entail a substantial duplication of effort andtime by the parties and the court."

As contained in her answer, petitioner's counterclaims are as follows:

(20) That defendant incorporates and repleads by reference all the foregoing allegations as may be materialto her Counterclaim against FGU.

(21) That FGU is liable to pay the following just, valid and legitimate claims of defendant:

(a) the sum of at least P104,893.45 plus maximum interest thereon representing, among others,direct commissions, profit commissions and contingent bonuses legally due to defendant; and

(b) the minimum amount of P500,000.00 plus the maximum allowable interest representingdefendant's accumulated premium reserve for 1985 and previous years,

which FGU has unjustifiably failed to remit to defendant despite repeated demands in gross violation of theirSpecial Agent's Contract and in contravention of the principle of law that "every person must, in the exercise


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of his rights and in the performance of his duties, act with justice, give everyone his due, and observehonesty and good faith."

(22) That as a result of the filing of this patently

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