May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why. (5%)

No, a treaty may not violate international law. In relation to the five essential requisites of a valid treaty which are : a) entered by parties with treaty-making capacities b) through their authorized representatives c) without the attendance of duress, fraud, mistake or other vice of consent d) on any lawful subject-matter e) in accordance with their respective constitutional processes.

Specifically, in the Treaty of Tordesillas in 1494, ,rendered invalid when it sought to divide parts of the Ocean which are open seas under the law of nations. Similarly, a treaty with such unlawful purposes such traffic in white slavery or narcotics are contrary to international law and public morality would be null and void.

Therefore, any subject-matter or purposes of a treaty contrary to international law are deemed unlawful and renders it invalid.

- III -
The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved? (6%)

In the Philippine setting the power to ratify a treaty is vested in the President. The role of the Senate is confined simply to giving or withholding its consent (veto power). For this matter, it is competent for the President to refuse to submit a treaty to the Senate or having secure its consent for its ratification , to refuse to ratify it. But, as a rule he cannot ratify a treaty without the concurrence of 2/3 of all members of the Senate.

Under this rule, the general practice of treaty-making power is vested to the executive department of the government. The President holds the highest executive office. Thus, the President as provided for in the Constitution has the power to abrogate a treaty if such act obtained the consent of the other country-party. It is not therefore necessary for the Senate to give its concurrence as such is only needed upon ratifying a treaty.

The case involving the validity of the treaty abrogation without Senate’s concurrence is not tenable. The Senate’s consent is only necessary upon ratification. As provided, both country-parties already mutually agreed in the abrogation thus, the President alone can abrogate the treaty as a valid act of his executive power under his treaty-making capacity.

Comparative Study : SC's Dealings with TREATIES

Comparative Study : SC's Dealings with TREATIES

1. Comm. of Internal Revenue vs S.C. Johnson and Son, Inc., G.R. No. 127105, June 25, 1999
Supreme Court’s Ruling :
Interpreting and construing phrase in a treaty

Under the Vienna Convention on the Law of Treaties states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

It bears stress that tax refunds are in the nature of tax exemptions. As such they are regarded as in derogation of sovereign authority and to be construed strictissimi juris against the person or entity claiming the exemption.27 The burden of proof is upon him who claims the exemption in his favor and he must be able to justify his claim by the clearest grant of organic or statute law. Private respondent is claiming for a refund of the alleged overpayment of tax on royalties; however, there is nothing on record to support a claim that the tax on royalties under the RP-US Tax Treaty is paid under similar circumstances as the tax on royalties under the RP-West Germany Tax Treaty.

2. Bayan vs Zamora , G.R. No. 138570, Oct. 10, 2000
Supreme Court’s Ruling :
Definition of a treaty
Requisites for a treaty to be rendered effective under Sec. 25, Article XVIII of the Constitution
Is there a difference between treaties and executive agreements?

A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation. The are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state

This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty.To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.

It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.

In international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.

3. Lim vs Executive Secretary , G.R. No. 151445, Apr. 11, 2002

Supreme Court’s Ruling :
Interpretations of International Agreements
Treaty vs Municipal Law

In interpreting treaties the Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state: i) a treaty shall be interpreted in good faith ill accordance with the ordinary meaning ii) in interpreting the purpose it shall comprise of any agreement and any instrument made iii) shall be taken into account, together with the context and iv) a special meaning to a term shall be given if intended by the parties.

From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "every treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."

4. Pimentel vs Executive Secretary , G.R. No. 158088, July 6, 2005
Supreme Court’s Ruling :
Power to ratify treaties
Senate’s limitation on ratification of treaties

Under E.O. 459, the Department of Foreign Affairs (DFA) prepares the ratification papers and forward the signed copy to the President for ratification. After the President has ratified it, DFA shall submit the same to the Senate for concurrence.

The President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations.

It should be emphasized that under the Constitution the power to ratify is vested in the President subject to the concurrence of the Senate. The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify a treaty.

The signature does not signify final consent, it is ratification that binds the state to the provisions of the treaty and renders it effective.

Senate is limited only to giving or withholding its consent, concurrence to the ratification. It is within the President to refuse to submit a treaty to the Senate or having secured its consent for its ratification, refuse to ratify it. Such decision is within the competence of the President alone, which cannot be encroached by this court via writ of mandamus,

5. Abaya vs Ebdane , G.R. No. 167919, Feb. 14, 2007

Supreme Court’s Ruling :
Definition of an “exchange note” under international law
Rules on treaties by title (differ in names)

It is well to understand the definition of an "exchange of notes" under international law. The term is defined in the United Nations Treaty Collection in this wise:

An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.

Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. Since there was a general desire to codify these customary rules, two international conventions were negotiated.

The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered into force on 27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations ("1986 Vienna Convention"), which has still not entered into force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements.

Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress.

6. Dept. of Budget Management- PS vs Kolonwell Trading , G.R. No. 175608, June 8, 2007

Supreme Court’s Ruling :
Observance of treaties (pacta sunt servanda)

Under the fundamental international law principle of pacta sunt servanda which is in fact embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH. Applying this postulate in the concrete to this case,the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question. Since, this is what has been agreed in the said Loan Agreement.

7. Akbayan vs Aquino , GR 170516, July 16, 2008
Supreme Court’s Ruling :
Non-disclosure of initial drafts of a treaty (exception of right to information)
Diplomatic negotiations are covered by the doctrine of executive privilege
Deliberative process privilege during treaty negotiation process
Presindent- sole organ of the nation in its negotiations with foreign countries

The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review.

Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it is made.

The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review. The negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality.

The Court in Chavez v. PCGG held that “information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.”

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be “ample opportunity for discussion before a treaty is approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that “historic confidentiality” would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.

The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical.

The earlier discussion on PMPF v. Manglapus shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as “the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the Treasury enlightens on the close relation between diplomatic negotiations and deliberative process privileges:

Negotiations between two countries to draft a treaty represent a true example of a deliberative process. Much give-and-take must occur for the countries to reach an accord. The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to the negotiations process if these notes were revealed.

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp “that the President is the sole organ of the nation in its negotiations with foreign countries.”

Morever, such assertion of privileges should be invoked by the President or through the Executive Secretary “by order of the President.”- that the power to directly negotiate treaties and international agreements is vested by our Constitution only in the Executive.

jao v. jao (2002)

FIRST DIVISION

[ G.R. No. 128314, May 29, 2002 ]

RODOLFO V. JAO, PETITIONER, VS. COURT OF APPEALS AND PERICO V. JAO, RESPONDENTS.

DECISION

YNARES-SANTIAGO, J.:

Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and Andrea V. Jao, who died intestate in 1988 and 1989, respectively. The decedents left real estate, cash, shares of stock and other personal properties.

On April 17, 1991, Perico instituted a petition for issuance of letters of administration before the Regional Trial Court of Quezon City, Branch 99, over the estate of his parents, docketed as Special Proceedings No. Q-91-8507.^[1] Pending the appointment of a regular administrator, Perico moved that he be appointed as special administrator. He alleged that his brother, Rodolfo, was gradually dissipating the assets of the estate. More particularly, Rodolfo was receiving rentals from real properties without rendering any accounting, and forcibly opening vaults belonging to their deceased parents and disposing of the cash and valuables therein.

Rodolfo moved for the dismissal of the petition on the ground of improper venue.^[2] He argued that the deceased spouses did not reside in Quezon City either during their lifetime or at the time of their deaths. The decedent’s actual residence was in Angeles City, Pampanga, where his late mother used to run and operate a bakery. As the health of his parents deteriorated due to old age, they stayed in Rodolfo’s residence at 61 Scout Gandia Street, Quezon City, solely for the purpose of obtaining medical treatment and hospitalization. Rodolfo submitted documentary evidence previously executed by the decedents, consisting of income tax returns, voter’s affidavits, statements of assets and liabilities, real estate tax payments, motor vehicle registration and passports, all indicating that their permanent residence was in Angeles City, Pampanga.

In his opposition,^[3] Perico countered that their deceased parents actually resided in Rodolfo’s house in Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared in their death certificates that their last residence before they died was at 61 Scout Gandia Street, Quezon City.^[4] Rodolfo himself even supplied the entry appearing on the death certificate of their mother, Andrea, and affixed his own signature on the said document.

Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents’ residence on the death certificates in good faith and through honest mistake. He gave his residence only as reference, considering that their parents were treated in their late years at the Medical City General Hospital in Mandaluyong, Metro Manila. Their stay in his house was merely transitory, in the same way that they were taken at different times for the same purpose to Perico’s residence at Legaspi Towers in Roxas Boulevard. The death certificates could not, therefore, be deemed conclusive evidence of the decedents’ residence in light of the other documents showing otherwise.^[5]

The court required the parties to submit their respective nominees for the position.^[6] Both failed to comply, whereupon the trial court ordered that the petition be archived.^[7]

Subsequently, Perico moved that the intestate proceedings be revived.^[8] After the parties submitted the names of their respective nominees, the trial court designated Justice Carlos L. Sundiam as special administrator of the estate of Ignacio Jao Tayag and Andrea Jao.^[9]

On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit:

A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989, respectively, confirm the fact that Quezon City was the last place of residence of the decedents. Surprisingly, the entries appearing on the death certificate of Andrea V. Jao were supplied by movant, Rodolfo V. Jao, whose signature appears in said document. Movant, therefore, cannot disown his own representation by taking an inconsistent position other than his own admission. xxx xxx xxx.

WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of merit movant’s motion to dismiss.

SO ORDERED.^[10]

Rodolfo filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 35908. On December 11, 1996, the Court of Appeals rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, no error, much less any grave abuse of discretion of the court a quo having been shown, the petition for certiorari is hereby DISMISSED. The questioned order of the respondent Judge is affirmed in toto.

SO ORDERED.^[11]

Rodolfo’s motion for reconsideration was denied by the Court of Appeals in the assailed resolution dated February 17, 1997.^[12] Hence, this petition for review, anchored on the following grounds:

I

RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION ALREADY RENDERED BY THIS HONORABLE COURT.

II

RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE COURT IN THE CASE OF EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH CLEARLY INTERPRETED WHAT IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES OF COURT.

III

RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE IN A PLACE AT THE TIME OF DEATH IS DETERMINATIVE OF DECEDENT’S RESIDENCE RATHER THAN THE INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER PLACE.

IV

RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4 FOR THE PURPOSE OF SERVING SUMMONS TO A DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT OF THE ESTATE OF A DECEASED.

V

RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER AND PRIVATE RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY.

VI

RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF ESTOPPEL AS AGAINST PETITIONER WHICH CAN NOT BE MORE PERSUASIVE THAN THE CLEAR INTENTION OF THE DECEDENTS THEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY.

VII

RESPONDENT COURT ERRED IN DISMISSING THE PETITION FOR CERTIORARI DESPITE THE CLEAR ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT IN INSISTING TO TAKE COGNIZANCE OF SP. PROCEEDING NO. Q-91-8507.^[13]

The main issue before us is: where should the settlement proceedings be had --- in Pampanga, where the decedents had their permanent residence, or in Quezon City, where they actually stayed before their demise?

Rule 73, Section 1 of the Rules of Court states:

Where estate of deceased persons be settled. – If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. (underscoring ours)

Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of administration granted in the proper court located in the province where the decedent resides at the time of his death.

Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al.,^[14] where we held that the situs of settlement proceedings shall be the place where the decedent had his permanent residence or domicile at the time of death. In determining residence at the time of death, the following factors must be considered, namely, the decedent had: (a) capacity to choose and freedom of choice; (b) physical presence at the place chosen; and (c) intention to stay therein permanently.^[15] While it appears that the decedents in this case chose to be physically present in Quezon City for medical convenience, petitioner avers that they never adopted Quezon City as their permanent residence.

The contention lacks merit.

The facts in Eusebio were different from those in the case at bar. The decedent therein, Andres Eusebio, passed away while in the process of transferring his personal belongings to a house in Quezon City. He was then suffering from a heart ailment and was advised by his doctor/son to purchase a Quezon City residence, which was nearer to his doctor. While he was able to acquire a house in Quezon City, Eusebio died even before he could move therein. In said case, we ruled that Eusebio retained his domicile --- and hence, residence --- in San Fernando, Pampanga. It cannot be said that Eusebio changed his residence because, strictly speaking, his physical presence in Quezon City was just temporary.

In the case at bar, there is substantial proof that the decedents have transferred to petitioner’s Quezon City residence. Petitioner failed to sufficiently refute respondent’s assertion that their elderly parents stayed in his house for some three to four years before they died in the late 1980s.

Furthermore, the decedents’ respective death certificates state that they were both residents of Quezon City at the time of their demise. Significantly, it was petitioner himself who filled up his late mother’s death certificate. To our mind, this unqualifiedly shows that at that time, at least, petitioner recognized his deceased mother’s residence to be Quezon City. Moreover, petitioner failed to contest the entry in Ignacio’s death certificate, accomplished a year earlier by respondent.

The recitals in the death certificates, which are admissible in evidence, were thus properly considered and presumed to be correct by the court a quo. We agree with the appellate court’s observation that since the death certificates were accomplished even before petitioner and respondent quarreled over their inheritance, they may be relied upon to reflect the true situation at the time of their parents’ death.

The death certificates thus prevailed as proofs of the decedents’ residence at the time of death, over the numerous documentary evidence presented by petitioner. To be sure, the documents presented by petitioner pertained not to residence at the time of death, as required by the Rules of Court, but to permanent residence or domicile. In Garcia-Fule v. Court of Appeals,^[16] we held:

xxx xxx xxx the term “resides” connotes ex vi termini “actual residence” as distinguished from “legal residence or domicile.” This term “resides”, like the terms “residing” and “residence”, is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor. Even where the statute uses the word “domicile” still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms “residence” and “domicile” but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term “inhabitant.” In other words, “resides” should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. No particular length of time of residence is required though; however, the residence must be more than temporary.^[17]

Both the settlement court and the Court of Appeals found that the decedents have been living with petitioner at the time of their deaths and for some time prior thereto. We find this conclusion to be substantiated by the evidence on record. A close perusal of the challenged decision shows that, contrary to petitioner’s assertion, the court below considered not only the decedents’ physical presence in Quezon City, but also other factors indicating that the decedents’ stay therein was more than temporary. In the absence of any substantial showing that the lower courts’ factual findings stemmed from an erroneous apprehension of the evidence presented, the same must be held to be conclusive and binding upon this Court.

Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2,^[18] on ordinary civil actions, and Rule 73, Section 1, which applies specifically to settlement proceedings. He argues that while venue in the former understandably refers to actual physical residence for the purpose of serving summons, it is the permanent residence of the decedent which is significant in Rule 73, Section 1. Petitioner insists that venue for the settlement of estates can only refer to permanent residence or domicile because it is the place where the records of the properties are kept and where most of the decedents’ properties are located.

Petitioner’s argument fails to persuade.

It does not necessarily follow that the records of a person’s properties are kept in the place where he permanently resides. Neither can it be presumed that a person’s properties can be found mostly in the place where he establishes his domicile. It may be that he has his domicile in a place different from that where he keeps his records, or where he maintains extensive personal and business interests. No generalizations can thus be formulated on the matter, as the question of where to keep records or retain properties is entirely dependent upon an individual’s choice and peculiarities.

At any rate, petitioner is obviously splitting straws when he differentiates between venue in ordinary civil actions and venue in special proceedings. In Raymond v. Court of Appeals^[19] and Bejer v. Court of Appeals,^[20] we ruled that venue for ordinary civil actions and that for special proceedings have one and the same meaning. As thus defined, “residence”, in the context of venue provisions, means nothing more than a person’s actual residence or place of abode, provided he resides therein with continuity and consistency.^[21] All told, the lower court and the Court of Appeals correctly held that venue for the settlement of the decedents’ intestate estate was properly laid in the Quezon City court.

WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of the Court of Appeals in CA-G.R. SP No. 35908 is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Austria-Martinez, JJ., concur.

---

^[1] Rollo, p. 87.

^[2] Ibid., p. 91.

^[3] Id., p. 95.

^[4] CA Rollo, pp. 34 & 35.

^[5] Rollo, p. 101.

^[6] Record, p. 50.

^[7] Ibid., p. 51.

^[8] Id., p. 55.

^[9] Id., p. 108.

^[10] Rollo, p. 110; penned by Presiding Judge Felix M. de Guzman.

^[11] Ibid., p. 71; penned by Associate Justice Corona Ibay-Somera; concurred in by Associate Justices Jaime M. Lantin and Salvador J. Valdez, Jr.

^[12] Id., p. 73.

^[13] Id., pp. 23-24.

^[14] 100 Phil., 593 (1956).

^[15] Ibid., at 596, citing Minor, Conflict of Laws, pp. 109-110; Goodrich, Conflict of Laws, p. 169; Velilla v. Posadas, 62 Phil., 624; and Zuellig v. Republic of the Philippines, 46 O.G. Supp. No. 11, p. 220.

^[16] 74 SCRA 189 (1976).

^[17] Ibid., at 199-200.

^[18] SEC. 2. Venue of personal actions. – All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant, where he may be found, at the election of the plaintiff.

^[19] 166 SCRA 50 (1988).

^[20] 169 SCRA 566 (1989).

^[21] Ibid., at 571, citing Garcia-Fule v. Court of Appeals, supra, and Dangwa Transportation Co., Inc. v. Sarmiento et al., 75 SCRA 124 (1977).

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Source: Supreme Court E-Library | Date created: December 29, 2009
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dilweg v. philipps (1964)

[ G.R. No. L-19596, October 30, 1964 ]

LAVERN R. DILWEG, PLAINTIFF AND APPELLANT VS. ROBERT 0. PHILIPPS, INOCENTES DINEROS AND ISAAC S. ECETA, DEFENDANTS AND APPELLEES.

D E C I S I O N

Reyes, J. B. L. J.:

Direct appeal on pure question of law from an order rendered by the Court of First Instance of Rizal Branch II in its Civil Case No. 4850, dismissing plaintiffs complaint as well as from the order denying a motion to reconsider said order of dismissal.

The record disclosed that on 7 February 1958 plaintiff Lavern R. Dilweg, a nonresident American citizen, through counsel, instituted the complaint at bar consisting of six causes of action against defendants Robert O. Phillips, Inocentes G. Dineros, and Isaac S. Eceta, claiming civil damages arising out of alleged libelous and defamatory statements uttered and published in the Philippines by the latter. On 24 February 1958 the first two named defendants presented a motion to dismiss the complaint. Plaintiff interposed an opposition thereto on 7 March 1958.

On 13 May 1958 the trial court, acting on this motion, denied the same; consequently, on 17 May 1958, the two defendants filed their joint answer with six causes of action as counterclaims for damages against the plaintiff. On 24 May 1958, plaintiff answered the defendants' counter-claims.

On 11 June 1958, defendant Isaac S. Eceta, who was represented by a different counsel, filed his answer adopting in toto as his own the answer as well as the counterclaims of his co-defendants. On 26 June 1958, plaintiff answered defendant Eceta's counterclaims.

The trial court, in its order dated 17 September 1958, scheduled the hearing of the case for 10 and 11 December 1958.

On 8 March 1961, in the course of the trial on the merits defendants Robert O. Phillips and Inocentes G. Dineros presented a written motion for reconsideration of the order dated 13 May 1958 denying their motion to dismiss the plaintiff's complaint. An opposition thereto was interposed by plaintiff on 7 April 1961.

On 11 May 1961 the trial court issued an order, which is the subject of the present appeal, the pertinent portion of which is as follows:

"This action is one for damages by reason of alleged libelous statements uttered in the Philippines by the defendants against the plaintiff. In other words, it is an action bared on a tort or act, which under the law of the Philippines, is defined as a criminal offense. At the time the said libelous statements were uttered, the plaintiff was in Washington, D.C. where, he was and has always been a resident. There is no allegation in the complaint that plaintiff has ever been in the Philippines or has resided at anytime therein.

"The general rule in this jurisdiction is that a court acquires jurisdiction over the person of the plaintiff by the filing of his complaint (Manila Railroad Co. vs. .Attorney General, 23 Phil. 523). In King Mau Wu vs.. Sycip, 94 Phil., 784, 50 Off. Gaz., page 5366, April 23, 1954, it was contended that as the plaintiff therein has never been a resident of the Philippines, the courts of this country have not acquired jurisdiction to take cognizance of his action bared on a contract which was executed in the State of New York, U.S.A. The Supreme Court held that a non-resident may sue a resident on the courts of his country for the collection of money arising from a contract notwithstanding the fact that said contract was execute outside the country. In Western Equipment and supply Co. vs. Reyes, 51 Phil. 116 it was held that a foreign corporation which has never done any business in the Philippines and which is unlicensed and unregistered to do business here, may sue in the courts of the Philippines for the purpose of restraining certain resident and inhabitants of the Philippines from organizing a corporation in this country bearing the same name as that of the plaintiff because the action involves the use of a tradename and hence, it is one in rem.

"The instant case is however different because it is a personal action based on an act defined as a crime under Philippine Law. It is therefor of first impression. Defendants contents that if a counterclaim is filed against the plaintiff for damages, it cannot be enforced because the Court has not acquired jurisdiction over his person as he has never been and is not now present in this country. It may be stated in addition, that in such a case, if a judgment is rendered against him by this Court since he has no property in the Philippines the decision cannot be enforced because the decision of a court of this country is not enforceable outside of Philippine jurisdiction.

"In some European countries, it is a requirement that before a non-resident alien may file an action, he must file a bond, the so-called 'Judicatum Solvi,' in order to protect the interest of residents from unwarranted actions. There is no law of this kind in this jurisdiction,

"As there are no doctrines in this jurisdiction covering the issue raised by the defendants, this Court is bound to rely on American doctrines for the reason that our rules on jurisdiction have been copied and patterned upon American laws and statutes. The following are some of the doctrines which have some hearing on the case, aside from those cited by the movants:

"A difficulty may sometimes arise, in determining whether a particular law applied to the citizen of a foreign country, and (is) intended to subject him to its provision. But if the law applies to him, and embraces his case, it is unquestionably binding upon him when he is within the jurisdiction of the United States." (Brown vs. Duchesne, Mass. 19 How., U.S. 194, 51 L. Ed. 595.) (Ibid).

"While the presence of the res or property within the territorial limits of the sovereignty under which the court acts may confer jurisdiction in rem on the court, in personal actions jurisdiction both of the subject matter and of the person or any party whose rights are to be effected are essential, and a state court can acquire no jurisdiction where neither the person nor any property of defendant can be found within the state. (Emmanuel vs. Ferris, 41 S.E. 20, 63 S. C. 104). If a court having jurisdiction of the subject matter acquires jurisdiction of the person it has the right and power to hear and determine the particular case; and unless jurisdiction of the subject matter and of the person exist it is the duty of the court to decline to do more than ascertain and declare that it has no power to examine or to decide the merits of the case . . . While a court may have general jurisdiction of the subject matter of a class of action, it does not necessarily follow that it may hear and determine a particular case submitted for its consideration. (21 C.J.S. 43-44)

"In El Banco Espanol Filipino vs. Palanca, 37 Phil 921, and Perkins vs. Dizon, 69 Phil. 189, it has been also held that in order that the court may validly, try a case, it must have jurisdiction over the subject matter and over the persons of the parties. Jurisdiction over the persons of the parties is acquired by their voluntary appearance in court and their submission to its authority, or by the coercive power of legal process exerted over their persons.

"Applying the principles laid down in the above-quoted doctrines and those cited in the motion for reconsideration” the defendants, the Court has come to conclusion that in order that it may validly try this care, it must have jurisdiction not only over the persons of the parties and over the subject matter and the plaintiff must be a resident within the territorial of this Court in order that jurisdiction over his person can be acquired, otherwise the Court will not be able to render a valid judgment against him.

"IN VIEW OF TIIE FOREGOING CONSIDERATIONS and of the fact that the question of jurisdiction may be raised at any time, the Court hereby grants the motion for reconsideration: sets aside the former order denying defendant’s motion to dismiss and hereby dismisses this case, without costs.

“So ORDERED." (Rec. on Appeal, pp. 99-103)

On 28, June 1961, a motion to have the above-quoted order reconsidered was presented by the plaintiff and an opposition thereto was filed by the defendants on 10 July 196l. Plaintiff, in turn, submitted a reply to said opposition on 22 July 1961. On 7 November 1961, the trial court, acting on said motion, denied it; hence, the present appeal.

The sole issue posed in the present appeal is whether or not our Philippine courts can rightfully refuse to assume jurisdiction over a personal action instituted by a nonresident alien who is not within the territorial jurisdiction of our courts.

In refusing to assume jurisdiction over this case, the court below upheld defendants contention that in a personal action it can only acquire jurisdiction over the person of the plaintiff if he resides within our territorial jurisdiction. We believe and hold that the trial court is in error in this point. In fact, this Court only recently has upheld the right of nonresidents to maintain personal actions against our residents in Philippine courts (Sharuff vs. Bubla, G.R. No. L-17029, Scptember 30, 1964).

In an .American case with facts similar to those obtaining in the case at bar, and in which the same identical issue was raised, the Court of Appeals of New York held:

"There is no objection to the maintenance of the action in our courts in the fact that the plaintiff was an English subject or he was a non-resident. As a personal action sounding in tort, it was transitory in its nature, following the person of the defendant. Our courts were open to the plaintiff for redress of any personal injury suffered by reason of defendants’ acts. Story’s Conflict of Laws. Sec. 625; Wharton’s Conflict of Laws, Secs. 478, 707, 743; Cardner vs. Thomas, 14 Johrs. 134, 7 Am. Dec. 445; De Witt vs. Puchapan, 54 Barb. 31.” (Crashley vs. Press Pub. Co., 71 N. E. 258, 259).

This position is supported by practically unanimous American authority (3 Am. Jur. 2d, Aliens, Sec. 43, p. 895; 21 C.J.S. (Courts), sec. 75, pp. 112-113).

It is thus evident that, contrary to the conclusion reached by the court below, it is not indispensable for a foreigner to establish a residence, nor need he be physically present in a state of which he is not a resident or citizen in order that he may initiate or maintain a personal action against a resident or citizen of that ether state for rights of action arising in, or for violations of laws committed within, the territorial jurisdiction of that other state. In this jurisdiction, no general law has come to our knowledge or notice which restricts the right of nonresident aliens to sue in our courts. It is not disputed that plaintiff's causes of action arose in, and that the defendants are within, our territorial jurisdiction. It is conceded by both parties that the law under which the instant case falls is silent on the matter of the right of an Alien to sue in our courts. On the other hand the particular law evidently availed of by the plaintiff in filing his complaint is Article 33 of the Civil Code of the Philippines, which provides:

"In cases of defamation, fraud, and physical injuries, a civil action for damages entirely separate and distinct from the criminal action may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution and shall require only preponderance of evidence."

The above-quoted provision of law does not make any distinction as to whether the "injured party." who may maintain an action for damages based on defamation, is a Filipino citizen or resident or an alien.

The American decisions cited in the order of 11 May 1961 are not applicable to the case at bar because there the defendants invoked the issue of lack of jurisdiction over their own persons and not against the person of the plaintiff.

The fact that there are counterclaims against the non-resident plaintiff does not alter the case. The Rules of Court provide for remedies against nonresident defendants. Wherefore, the order appealed from is set aside, and the case is ordered remanded to the court below for further proceeding consonant with this opinion. Costs against respondents Phillips, Dineros and Eceta.

Bengzon C. J., Bautista Angelo, Concepcion, Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

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Source: Supreme Court E-Library | Date created: May 20, 2010
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saludo v. american express (2006)

FIRST DIVISION

[ G.R. NO. 159507, April 19, 2006 ]

ANICETO G. SALUDO, JR., PETITIONER, VS. AMERICAN EXPRESS INTERNATIONAL, INC., AND/OR IAN T. FISH AND DOMINIC MASCRINAS, RESPONDENTS.

D E C I S I O N

CALLEJO, SR., J.:

Before the Court is the Petition for Review on Certiorari filed by Aniceto G. Saludo, Jr. seeking to reverse and set aside the Decision^[1] dated May 22, 2003 of the Court of Appeals in CA-G.R. SP No. 69553. The assailed decision directed the Regional Trial Court (RTC) of Maasin City, Southern Leyte, Branch 25 thereof, to vacate and set aside its Orders dated September 10, 2001 and January 2, 2002 in Civil Case No. R-3172, and enjoined the presiding judge^[2] thereof from conducting further proceedings in said case, except to dismiss the complaint filed therewith on ground of improper venue. The petition also seeks to reverse and set aside the appellate court's Resolution dated August 14, 2003 denying the motion for reconsideration of the assailed decision.

The factual and procedural antecedents are as follows:

Aniceto G. Saludo, Jr. filed a complaint for damages against the American Express International, Inc. (AMEX) and/or its officers Ian T. Fish, Vice-President and Country Manager, and Dominic Mascrinas, Head of Operations, with the RTC of Maasin City, Southern Leyte. The case was raffled to Branch 25 of the said court.

The complaint alleged, inter alia, that plaintiff (herein petitioner Saludo) "is a Filipino citizen, of legal age, and a member of the House of Representatives and a resident of Ichon, Macrohon, Southern Leyte, Philippines." On the other hand, defendant (herein respondent AMEX, Inc.) "is a corporation doing business in the Philippines and engaged in providing credit and other credit facilities and allied services with office address at 4th floor, ACE Building, Rada Street, Legaspi Village, Makati City." The other defendants (herein respondents Fish and Mascrinas) are officers of respondent AMEX, and may be served with summons and other court processes at their office address.

The complaint's cause of action stemmed from the alleged wrongful dishonor of petitioner Saludo's AMEX credit card and the supplementary card issued to his daughter. The first dishonor happened when petitioner Saludo's daughter used her supplementary credit card to pay her purchases in the United States some time in April 2000. The second dishonor occurred when petitioner Saludo used his principal credit card to pay his account at the Hotel Okawa in Tokyo, Japan while he was there with other delegates from the Philippines to attend the Congressional Recognition in honor of Mr. Hiroshi Tanaka.

The dishonor of these AMEX credit cards were allegedly unjustified as they resulted from respondents' unilateral act of suspending petitioner Saludo's account for his failure to pay its balance covering the period of March 2000. Petitioner Saludo denied having received the corresponding statement of account. Further, he was allegedly wrongfully charged for late payment in June 2000. Subsequently, his credit card and its supplementary cards were canceled by respondents on July 20, 2000.

Petitioner Saludo claimed that he suffered great inconvenience, wounded feelings, mental anguish, embarrassment, humiliation and besmirched political and professional standing as a result of respondents' acts which were committed in gross and evident bad faith, and in wanton, reckless and oppressive manner. He thus prayed that respondents be adjudged to pay him, jointly and severally, actual, moral and exemplary damages, and attorney's fees.

In their answer, respondents specifically denied the allegations in the complaint. Further, they raised the affirmative defenses of lack of cause of action and improper venue. On the latter, respondents averred that the complaint should be dismissed on the ground that venue was improperly laid because none of the parties was a resident of Leyte. They alleged that respondents were not residents of Southern Leyte. Moreover, notwithstanding the claim in his complaint, petitioner Saludo was not allegedly a resident thereof as evidenced by the fact that his community tax certificate, which was presented when he executed the complaint's verification and certification of non-forum shopping, was issued at Pasay City. To buttress their contention, respondents pointed out that petitioner Saludo's complaint was prepared in Pasay City and signed by a lawyer of the said city. Respondents prayed for the dismissal of the complaint a quo.

Thereafter, respondents filed an Opposition to Ex-Parte Motion (to Set Case for Pre-Trial) and Motion for Preliminary Hearing (on Affirmative Defense of Improper Venue) to which petitioner Saludo filed his Comments and/or Objections to the Affirmative Defense of Improper Venue. He asserted that any allegation refuting his residency in Southern Leyte was baseless and unfounded considering that he was the congressman of the lone district thereof at the time of the filing of his complaint. He urged the court a quo to take judicial notice of this particular fact. As a member of Congress, he possessed all the qualifications prescribed by the Constitution including that of being a resident of his district. He was also a member of the Integrated Bar of the Philippines-Southern Leyte Chapter, and has been such ever since his admission to the Bar. His community tax certificate was issued at Pasay City only because he has an office thereat and the office messenger obtained the same in the said city. In any event, the community tax certificate is not determinative of one's residence.

In the Order dated September 10, 2001, the court a quo denied the affirmative defenses interposed by respondents. It found the allegations of the complaint sufficient to constitute a cause of action against respondents. The court a quo likewise denied respondents' affirmative defense that venue was improperly laid. It reasoned, thus:

x x x [T]he fact alone that the plaintiff at the time he filed the complaint was and still is, the incumbent Congressman of the Lone District of Southern Leyte with residence at Ichon, Macrohon, Southern Leyte, is enough to dispell any and all doubts about his actual residence. As a high-ranking government official of the province, his residence there can be taken judicial notice of. As such his personal, actual and physical habitation or his actual residence or place of abode can never be in some other place but in Ichon, Macrohon, Southern Leyte. It is correctly stated by the plaintiff, citing the case of Core v. Core, 100 Phil. 321 that, "residence, for purposes of fixing venue of an action, is synonymous with domicile. This is defined as the permanent home, the place to which, whenever absent for business or pleasure, one intends to return, and depends on the facts and circumstances, in the sense that they disclose intent. A person can have but one domicile at a time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. Venue could be at place of his residence. (Masa v. Mison, 200 SCRA 715 [1991])^[3]

Respondents sought the reconsideration thereof but the court a quo denied the same in the Order dated January 2, 2002. They then filed with the appellate court a petition for certiorari and prohibition alleging grave abuse of discretion on the part of the presiding judge of the court a quo in issuing the September 10, 2001 and January 2, 2002 Orders. Upon respondents' posting of a bond, the appellate court issued on March 14, 2002 a temporary restraining order which enjoined the presiding judge of the court a quo from conducting further proceedings in Civil Case No. R-3172.

On May 22, 2003, the appellate court rendered the assailed decision granting respondents' petition for certiorari as it found that venue was improperly laid. It directed the court a quo to vacate and set aside its Orders dated September 10, 2001 and January 2, 2002, and enjoined the presiding judge thereof from further proceeding in the case, except to dismiss the complaint.

The appellate court explained that the action filed by petitioner Saludo against respondents is governed by Section 2, Rule 4 of the Rules of Court. The said rule on venue of personal actions basically provides that personal actions may be commenced and tried where plaintiff or any of the principal plaintiffs resides, or where defendant or any of the principal defendants resides, at the election of plaintiff.

Venue was improperly laid in the court a quo, according to the appellate court, because not one of the parties was a resident of Southern Leyte. Specifically, it declared that petitioner Saludo was not a resident thereof. The appellate court pronounced that, for purposes of venue, the residence of a person is his personal, actual or physical habitation, or his actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency.^[4]

The appellate court quoted the following discussion in Koh v. Court of Appeals^[5] where the Court distinguished the terms "residence" and "domicile" in this wise:

x x x [T]he term domicile is not exactly synonymous in legal contemplation with the term residence, for it is [an] established principle in Conflict of Laws that domicile refers to the relatively more permanent abode of a person while residence applies to a temporary stay of a person in a given place. In fact, this distinction is very well emphasized in those cases where the Domiciliary Theory must necessarily supplant the Nationality Theory in cases involving stateless persons.

x x x x

"There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with intention to remain for an unlimited time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means, necessarily so since no length of residence without intention of remaining will constitute domicile."^[6] (Italicized for emphasis)

In holding that petitioner Saludo is not a resident of Maasin City, Southern Leyte, the appellate court referred to his community tax certificate, as indicated in his complaint's verification and certification of non-forum shopping, which was issued at Pasay City. Similarly, it referred to the same community tax certificate, as indicated in his complaint for deportation filed against respondents Fish and Mascrinas. Under Republic Act No. 7160,^[7] the community tax certificate shall be paid in the place of residence of the individual, or in the place where the principal office of the juridical entity is located.^[8] It also pointed out that petitioner Saludo's law office, which was also representing him in the present case, is in Pasay City. The foregoing circumstances were considered by the appellate court as judicial admissions of petitioner Saludo which are conclusive upon him and no longer required proof.

The appellate court chided the court a quo for stating that as incumbent congressman of the lone district of Southern Leyte, judicial notice could be taken of the fact of petitioner Saludo's residence thereat. No evidence had yet been adduced that petitioner Saludo was then the congressman of Southern Leyte and actual resident of Ichon, Macrohon of the said province.

The appellate court held that, based on his complaint, petitioner Saludo was actually residing in Pasay City. It faulted him for filing his complaint with the court a quo when the said venue is inconvenient to the parties to the case. It opined that under the rules, the possible choices of venue are Pasay City or Makati City, or any place in the National Capital Judicial Region, at the option of petitioner Saludo.

It stressed that while the choice of venue is given to plaintiff, said choice is not left to his caprice and cannot deprive a defendant of the rights conferred upon him by the Rules of Court.^[9] Further, fundamental in the law governing venue of actions that the situs for bringing real and personal civil actions is fixed by the rules to attain the greatest possible convenience to the party litigants by taking into consideration the maximum accessibility to them - i.e., to both plaintiff and defendant, not only to one or the other - of the courts of justice.^[10]

The appellate court concluded that the court a quo should have given due course to respondents' affirmative defense of improper venue in order to avoid any suspicion that petitioner Saludo's motive in filing his complaint with the court a quo was only to vex and unduly inconvenience respondents or even to wield influence in the outcome of the case, petitioner Saludo being a powerful and influential figure in the said province. The latter circumstance could be regarded as a "specie of forum shopping" akin to that in Investors Finance Corp. v. Ebarle^[11] where the Court mentioned that the filing of the civil action before the court in Pagadian City "was a specie of forum shopping" considering that plaintiff therein was an influential person in the locality.

The decretal portion of the assailed Decision dated May 22, 2003 of the appellate court reads:

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the challenged orders must be, as they hereby are, VACATED and SET ASIDE and the respondent judge, or any one acting in his place or stead, is instructed and enjoined to desist from further proceeding in the case, except to dismiss it. The temporary restraining order earlier issued is hereby converted into a writ of preliminary injunction, upon the posting this time by petitioners [herein respondents], within five (5) days from receipt of this decision, of a bond in the amount of Five Million Pesos (P5,000,000.00), to answer for all damages that private respondent [herein petitioner] may sustain by reason of the issuance of such injunction should the Court finally decide that petitioners are not entitled thereto. Private respondent, if he so minded, may refile his case for damages before the Regional Trial Court of Makati City or Pasay City, or any of the Regional Trial Courts of the National Capital Judicial Region. Without costs.

SO ORDERED.^[12]

Petitioner Saludo sought the reconsideration of the said decision but the appellate court, in the Resolution dated August 14, 2003, denied his motion for reconsideration. Hence, he filed the instant petition for review with the Court alleging that:

The Court of Appeals, (Special Fourth Division), in promulgating the afore-mentioned Decision and Resolution, has decided a question of substance in a way probably not in accord with law or with applicable decisions of this Honorable Court.

(a) the Court of Appeals erred in not taking judicial notice of the undisputed fact that herein petitioner is the incumbent congressman of the lone district of Southern Leyte and as such, he is a residence (sic) of said district;

(b) the Court of Appeals erred in dismissing the complaint on the basis of improper venue due to the alleged judicial admission of herein petitioner;

(c) the Court of Appeals in dismissing the complaint ignored applicable decisions of this Honorable Court; and

(d) the Court of Appeals erred in deciding that herein petitioner violated the rules on venue, and even speculated that herein petitioner's motive in filing the complaint in Maasin City was only to vex the respondents.^[13]

In gist, the sole substantive issue for the Court's resolution is whether the appellate court committed reversible error in holding that venue was improperly laid in the court a quo in Civil Case No. R-3172 because not one of the parties, including petitioner Saludo, as plaintiff therein, was a resident of Southern Leyte at the time of filing of the complaint.

The petition is meritorious.

Petitioner Saludo's complaint for damages against respondents before the court a quo is a personal action. As such, it is governed by Section 2, Rule 4 of the Rules of Courts which reads:

SEC. 2. Venue of personal actions. - All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.

The choice of venue for personal actions cognizable by the RTC is given to plaintiff but not to plaintiff's caprice because the matter is regulated by the Rules of Court.^[14] The rule on venue, like other procedural rules, is designed to insure a just and orderly administration of justice, or the impartial and evenhanded determination of every action and proceeding.^[15] The option of plaintiff in personal actions cognizable by the RTC is either the place where defendant resides or may be found, or the place where plaintiff resides. If plaintiff opts for the latter, he is limited to that place.^[16]

Following this rule, petitioner Saludo, as plaintiff, had opted to file his complaint with the court a quo which is in Maasin City, Southern Leyte. He alleged in his complaint that he was a member of the House of Representatives and a resident of Ichon, Macrohon, Southern Leyte to comply with the residency requirement of the rule.

However, the appellate court, adopting respondents' theory, made the finding that petitioner Saludo was not a resident of Southern Leyte at the time of the filing of his complaint. It hinged the said finding mainly on the fact that petitioner Saludo's community tax certificate, indicated in his complaint's verification and certification of non-forum shopping, was issued at Pasay City. That his law office is in Pasay City was also taken by the appellate court as negating petitioner Saludo's claim of residence in Southern Leyte.

The appellate court committed reversible error in finding that petitioner Saludo was not a resident of Southern Leyte at the time of the filing of his complaint, and consequently holding that venue was improperly laid in the court a quo. In Dangwa Transportation Co., Inc. v. Sarmiento,^[17] the Court had the occasion to explain at length the meaning of the term "resides" for purposes of venue, thus:

In Koh v. Court of Appeals, we explained that the term "resides" as employed in the rule on venue on personal actions filed with the courts of first instance means the place of abode, whether permanent or temporary, of the plaintiff or the defendant, as distinguished from "domicile" which denotes a fixed permanent residence to which, when absent, one has the intention of returning.

"It is fundamental in the law governing venue of actions (Rule 4 of the Rules of Court) that the situs for bringing real and personal civil actions are fixed by the rules to attain the greatest convenience possible to the parties-litigants by taking into consideration the maximum accessibility to them of the courts of justice. It is, likewise, undeniable that the term domicile is not exactly synonymous in legal contemplation with the term residence, for it is an established principle in Conflict of Laws that domicile refers to the relatively more permanent abode of a person while residence applies to a temporary stay of a person in a given place. In fact, this distinction is very well emphasized in those cases where the Domiciliary Theory must necessarily supplant the Nationality Theory in cases involving stateless persons.

"This Court held in the case of Uytengsu v. Republic, 50 O.G. 4781, October, 1954, reversing its previous stand in Larena v. Ferrer, 61 Phil. 36, and Nuval v. Guray, 52 Phil. 645, that "

"There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means, necessarily so since no length of residence without intention of remaining will constitute domicile." (Italicized for emphasis)

"We note that the law on venue in Courts of First Instance (Section 2, of Rule 4, Rules of Court) in referring to the parties utilizes the words "resides or may be found," and not "is domiciled," thus:

"Sec. 2(b) Personal actions - All other actions may be commenced and tried where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff." (Italicized for emphasis)

"Applying the foregoing observation to the present case, We are fully convinced that private respondent Coloma's protestations of domicile in San Nicolas, Ilocos Norte, based on his manifested intention to return there after the retirement of his wife from government service to justify his bringing of an action for damages against petitioner in the C.F.I. of Ilocos Norte, is entirely of no moment since what is of paramount importance is where he actually resided or where he may be found at the time he brought the action, to comply substantially with the requirements of Sec. 2(b) of Rule 4, Rules of Court, on venue of personal actions." (Koh v. Court of Appeals, supra, pp. 304-305.)

The same construction of the word "resides" as used in Section 1, Rule 73, of the Revised Rules of Court, was enunciated in Fule v. Court of Appeals, et al. (G.R. No. L-40502) and Fule v. Hon. Ernani C. Paño, et al. (G.R. No. L-42670), decided on November 29, 1976. Thus, this Court, in the aforecited cases, stated:

"2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like the terms "residing" and "residence" is elastic and should be interpreted in the light of the object or purposes of the statute or rule in which it is employed. In the application of venue statutes and rules - Section 1, Rule 73 of the Revised Rules of Court is of such nature - residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile. No particular length of time of residence is required though; however, the residence must be more than temporary."^[18]

There is no dispute that petitioner Saludo was the congressman or the representative of the lone district of Southern Leyte at the time of filing of his complaint with the court a quo. Even the appellate court admits this fact as it states that "it may be conceded that private respondent ever so often travels to Maasin City, Southern Leyte, because he is its representative in the lower house."^[19]

As a member of the House of Representatives, petitioner Saludo was correctly deemed by the court a quo as possessing the requirements for the said position,^[20] including that he was then a resident of the district which he was representing, i.e., Southern Leyte. Significantly, for purposes of election law, the term "residence" is synonymous with "domicile," thus:

x x x [T]he Court held that "domicile" and "residence" are synonymous. The term "residence," as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. x x x^[21]

It can be readily gleaned that the definition of "residence" for purposes of election law is more stringent in that it is equated with the term "domicile." Hence, for the said purpose, the term "residence" imports "not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention."^[22] When parsed, therefore, the term "residence" requires two elements: (1) intention to reside in the particular place; and (2) personal or physical presence in that place, coupled with conduct indicative of such intention. As the Court elucidated, "the place where a party actually or constructively has a permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law."^[23]

On the other hand, for purposes of venue, the less technical definition of "residence" is adopted. Thus, it is understood to mean as "the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile."^[24]

Since petitioner Saludo, as congressman or the lone representative of the district of Southern Leyte, had his residence (or domicile) therein as the term is construed in relation to election laws, necessarily, he is also deemed to have had his residence therein for purposes of venue for filing personal actions. Put in another manner, Southern Leyte, as the domicile of petitioner Saludo, was also his residence, as the term is understood in its popular sense. This is because "residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time."

Reliance by the appellate court on Koh v. Court of Appeals^[25] is misplaced. Contrary to its holding,^[26] the facts of the present case are not similar to the facts therein. In Koh, the complaint was filed with the Court of First Instance in San Nicolas, Ilocos Norte by plaintiff who admitted that he was a resident of Kamias, Quezon City. Save for the fact that he grew up in San Nicolas, Ilocos Norte and that he manifested the intent to return there after retirement, plaintiff therein had not established that he was actually a resident therein at the time of the filing of his complaint. Neither did he establish that he had his domicile therein because although he manifested the intent to go back there after retirement, the element of personal presence in that place was lacking. To reiterate, domicile or residence, as the terms are taken as synonyms, imports "not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention."^[27]

In contrast, petitioner Saludo was the congressman or representative of Southern Leyte at the time of filing of his complaint with the court a quo. Absent any evidence to the contrary, he is deemed to possess the qualifications for the said position, including that he was a resident therein. And following the definition of the term "residence" for purposes of election law, petitioner Saludo not only had the intention to reside in Southern Leyte, but he also had personal presence therein, coupled with conduct indicative of such intention. The latter element, or his bodily presence as an inhabitant in Southern Leyte, was sufficient for petitioner Saludo to be considered a resident therein for purposes of venue.

The following ratiocination of the court a quo is apt:

Residence in civil law is a material fact, referring to the physical presence of a person in a place. A person can have two or more residences, such as a country residence and a city residence. (Quetulio v. Ruiz, S.C. Off. Gaz. 156, Commentaries and Jurisprudence in Civil Law, Vol. 1, page 211, Tolentino). Residence is acquired by living in a place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some other place.

Thus, if a person lives with his family habitually in Quezon City, he would have his domicile in Quezon City. If he also has a house for vacation purposes in the City of Baguio, and another house in connection with his business in the City of Manila, he would have residence in all three places (Tolentino, Commentaries and Jurisprudence on Civil Law, Vol. 1, Page 212, 1990 Edition) so that one[']s legal residence or domicile can also be his actual, personal or physical residence or habitation or place of abode if he stays there with intention to stay there permanently.

In the instant case, since plaintiff has a house in Makati City for the purpose of exercising his profession or doing business and also a house in Ichon, Macrohon, Southern Leyte, for doing business and/or for election or political purposes where he also lives or stays physically, personally and actually then he can have residences in these two places. Because it would then be preposterous to acknowledge and recognize plaintiff Aniceto G. Saludo, Jr. as congressman of Southern Leyte without also recognizing him as actually, personally and physically residing thereat, when such residence is required by law.^[28]

The fact then that petitioner Saludo's community tax certificate was issued at Pasay City is of no moment because granting arguendo that he could be considered a resident therein, the same does not preclude his having a residence in Southern Leyte for purposes of venue. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence.^[29]

That petitioner Saludo was the congressman or representative of the lone district of Southern Leyte at the time of the filing of his complaint was admitted as a fact by the court a quo. In this connection, it consequently held that, as such, petitioner Saludo's residence in Southern Leyte, the district he was the representing, could be taken judicial notice of. The court a quo cannot be faulted for doing so because courts are allowed "to take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions."^[30] Courts are likewise bound to take judicial notice, without the introduction of evidence, of the law in force in the Philippines,^[31] including its Constitution.

The concept of "facts of common knowledge" in the context of judicial notice has been explained as those facts that are "so commonly known in the community as to make it unprofitable to require proof, and so certainly known to as to make it indisputable among reasonable men."^[32] Moreover, "though usually facts of "common knowledge" will be generally known throughout the country, it is sufficient as a basis for judicial notice that they be known in the local community where the trial court sits."^[33] Certainly, the fact of petitioner Saludo being the duly elected representative of Southern Leyte at the time could be properly taken judicial notice of by the court a quo, the same being a matter of common knowledge in the community where it sits.

Further, petitioner Saludo's residence in Southern Leyte could likewise be properly taken judicial notice of by the court a quo. It is bound to know that, under the Constitution, one of the qualifications of a congressman or representative to the House of Representatives is having a residence in the district in which he shall be elected.

In fine, petitioner Saludo's act of filing his complaint with the court a quo cannot be characterized as a "specie of forum-shopping" or capricious on his part because, under the rules, as plaintiff, he is precisely given this option.

Finally, respondents' claim that the instant petition for review was not properly verified by petitioner Saludo deserves scant consideration.

Section 4, Rule 7 of the Rules of Court reads:

Sec. 4. Verification. - Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

A pleading required to be verified which contains a verification based on "information and belief," or upon "knowledge, information and belief," or lacks proper verification, shall be treated as an unsigned pleading.

Petitioner Saludo's verification and certification of non-forum shopping states that he has "read the contents thereof [referring to the petition] and the same are true and correct of my own personal knowledge and belief and on the basis of the records at hand." The same clearly constitutes substantial compliance with the above requirements of the Rules of Court.

WHEREFORE, premises considered, the petition is GRANTED. The Decision dated May 22, 2003 and Resolution dated August 14, 2003 of the Court of Appeals in CA-G.R. SP No. 69553 are REVERSED and SET ASIDE. The Orders dated September 10, 2001 and January 2, 2002 of the Regional Trial Court of Maasin City, Southern Leyte, Branch 25 thereof, in Civil Case No. R-3172 are REINSTATED.

SO ORDERED.

Panganiban, C.J. (Chairperson), Ynares-Santiago, Austria-Martinez, and Chico-Nazario, JJ., concur.

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^[1] Penned by Associate Justice Renato C. Dacudao, with Associate Justices Godardo A. Jacinto (Chairman) and Rodrigo V. Cosico, concurring; rollo, pp. 24-30.

^[2] Honorable Romeo M. Gomez.

^[3] Rollo, pp. 104-105.

^[4] Citing Boleyley v. Hon. Villanueva, 373 Phil. 141, 146 (1999).

^[5] G.R. No. L-40428, March 31, 1976, 70 SCRA 298.

^[6] Id. at 305.

^[7] Local Government Code of 1991.

^[8] Id., Section 160 thereof.

^[9] Citing, among others, Baritua v. Court of Appeals, 335 Phil. 12, 18 (1997).

^[10] Koh v. Court of Appeals, supra note 5.

^[11] G.R. No. L-70640, June 29, 1988, 163 SCRA 60.

^[12] Rollo, p. 30.

^[13] Id. at 10.

^[14] Escuerte v. Court of Appeals, G.R. No. 53485, February 6, 1991, 193 SCRA 541.

^[15] Id. at 544.

^[16] Id.

^[17] G.R. No. L-22795, January 31, 1977, 75 SCRA 124.

^[18] Id. at 127-129.

^[19] CA Decision, p. 5; rollo, p. 26.

^[20] Section 6, Article VI of the Constitution reads:

No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.

^[21] Papandayan, Jr. v. Commission on Elections, 430 Phil. 754, 770 (2002).

^[22] Id..

^[23] Perez v. Commission on Elections, 375 Phil. 1106, 1117 (1999).

^[24] Dangwa Transportation Co., Inc. v. Sarmiento, supra note 17, at 129.

^[25] Supra note 5.

^[26] In its Resolution dated August 14, 2003 denying petitioner's motion for reconsideration, the appellate court stated that the pertinent facts in the case are similar to Koh; rollo, p. 38.

^[27] See, for example, Dangwa Transportation Co., Inc. v. Sarmiento, supra note 17, at 127.

^[28] Order dated January 2, 2002 of the court a quo; rollo, p. 116.

^[29] Dangwa Transportation Co., Inc. v. Sarmiento, supra note 17, at 128.

^[30] Section 2, Rule 129, Rules of Court.

^[31] HERRERA, IV REMEDIAL LAW 78 (1999 ed.), citing 5 MORAN 58 (1980 ed.). Section 1, Rule 129 of the Rules of Court reads:

Judicial notice, when mandatory. - A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.

^[32] Id. at 81, citing MCCORMICK, EVIDENCE, 4th ed.

^[33] Id.

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Source: Supreme Court E-Library | Date created: August 07, 2008
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