Express Padala v. Ocampo, G.R. No. 202505, 6 September 2017.
Express Padala v. Ocampo, G.R. No. 202505, 6 September 2017.
Express Padala v. Ocampo, G.R. No. 202505, 6 September 2017.
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* FIRST DIVISION.
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JARDELEZA, J.:
This is a petition for review on certiorari1 challenging
the Decision2 dated January 5, 2012 and Resolution3
dated June 27, 2012 of the Court of Appeals (CA) in C.A.-
G.R. S.P. No. 113475. The CA granted the petition for
certiorari filed by
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50
respondent Helen M. Ocampo (Ocampo) and set aside the
Decision4 dated September 14, 2009 of the Regional Trial
Court (RTC) in Civil Case No. MC08-3775 which granted
BDO Remittance (Italia) S.P.A.’s (BDO Remittance)
petition for recognition of foreign judgment.
The core issue being raised is whether service of
summons was validly effected upon respondent, who lives
in Italy, through substituted service.
BDO Remittance, a corporation with principal office in
Italy, hired respondent Ocampo as a remittance processor
in September 2002. She was dismissed in February 2004
for misappropriating the sum of €24,035.60 by falsifying
invoices of money payments relating to customers’ money
transfer orders from February to December 2003.5
Accordingly, BDO Remittance filed a criminal
complaint against Ocampo for the same acts before the
Court of Turin, Italy. Ocampo pleaded guilty to the offense
charged. On April 13, 2005, the Honorable Court of Turin
convicted and sentenced her to suffer imprisonment of six
months and a penalty of €300.00, but granted her the
benefit of suspension of the enforcement of sentence on
account of her guilty plea (the Court of Turin Decision).6
On September 22, 2008, BDO Remittance filed a
petition for recognition of foreign judgment7 with the RTC
of Mandaluyong City. BDO Remittance prayed for the
recognition of the Court of Turin Decision and the
cancellation or restriction of Ocampo’s Philippine passport
by the Department of Foreign Affairs (DFA).8
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51 /
VOL. 839, SEPTEMBER 6, 2017 51
Express Padala (Italia) S.P.A., now BDO Remittance
(Italia) S.P.A. vs. Ocampo
On November 21, 2008, the sheriff attempted to
personally serve the summons on Ocampo in her local
address alleged in the petition located in San Bernardo
Village, Darasa, Tanauan, Batangas. However, since the
address was incomplete, the sheriff sought the help of
barangay officials, who pointed him to the house
belonging to Ocampo’s father, Nicasio Ocampo; Victor P.
Macahia (Macahia), uncle of Ocampo and present
occupant, informed the sheriff that Ocampo and her
family were already in Italy, and that he was only a
caretaker of the house. The sheriff then proceeded to serve
the summons upon Macahia.9 After Ocampo failed to file
an answer, BDO Remittance filed a motion to declare
Ocampo in default. The RTC granted the motion and
allowed BDO Remittance to present evidence ex parte.10
On September 14, 2009, the RTC rendered a Decision11
in favor of BDO Remittance (RTC Decision). It recognized
as valid and binding in the Philippines the Court of Turin
Decision and ordered the DFA to cancel or restrict
Ocampo’s Philippine passport and not to allow its renewal
until she has served her sentence.12
On February 11, 2010, Ocampo’s mother, Laureana
Macahia, received a copy of the RTC’s Decision and
forwarded it to Ocampo.13 Not having been represented by
counsel a quo, the period of appeal lapsed. Ocampo was
later able to engage the services of counsel who filed a
petition for certiorari under Rule 65 with the CA on April
12, 2010.14 Ocampo principally argued that the RTC acted
in grave abuse of discretion in recognizing and ordering
the enforcement of the Court of Turin’s Decision.15
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In its now assailed Decision,16 the CA set aside the
RTC’s Decision and revoked the order to cancel or restrict
Ocampo’s Philippine passport (CA Decision). The CA first
settled the issue of procedural due process, particularly
whether Ocampo was properly served with summons. It
held that since Ocampo’s whereabouts were unknown,
summons should have been served in accordance with
Section 14, Rule 14 of the Rules of Civil Procedure. The
sheriff however, erroneously effected the substituted
service of summons under Section 7 of Rule 14. Thus, the
CA concluded that the RTC did not acquire jurisdiction
over Ocampo, and the RTC’s Decision against her is null
and void. It also found that the RTC acted in grave abuse
of discretion when it recognized a foreign judgment of a
criminal case and ordered the DFA to restrict or cancel
Ocampo’s passport.17
After the CA denied its motion for reconsideration,
BDO Remittance filed the present petition for review
under Rule 45 arguing that: (1) Ocampo availed of the
wrong remedy; and (2) the RTC did not gravely abuse its
discretion in granting the petition for recognition of
foreign judgment and ordering the DFA to restrict or
cancel Ocampo’s passport.18
In her comment,19 Ocampo explained that BDO
Remittance’s insistence on the enforcement of Court of
Turin Decision is misleading because, by availing of the
benefit of suspension of the enforcement, the penalty of
confinement will not be enforced upon her. She also /
presented a decree20 from the High Court of Turin dated
June 29, 2010 which stated that her criminal liability has
been extinguished.
We deny the petition.
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The general rule in this jurisdiction is that summons
must be served personally on the defendant. Section 6,
Rule 14 of the Rules of Court provides:
For justifiable reasons, however, other modes of serving
summons may be resorted to. When the defendant cannot
be served personally within a reasonable time after efforts
to locate him have failed, the rules allow summons to be
served by substituted service. Substituted service is
effected by leaving copies of the summons at the
defendant’s residence with some person of suitable age
and discretion then residing therein, or by leaving the
copies at defendant’s office or regular place of business
with some competent person in charge thereof.21
/
When the defendant’s whereabouts are unknown, the
rules allow service of summons by publication.22 As an
exception to the preferred mode of service, service of
summons by publication may only be resorted to when the
whereabouts of the defendant are not only unknown, but
cannot be ascertained by diligent inquiry. The diligence
requirement means that there must be prior resort to
personal service under Section 7 and substituted service
under Section 8, and proof that these modes were
ineffective before summons by publication may be
allowed.23 This mode also requires the plaintiff to file a
written motion for leave of court to effect service of
summons by publi-
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cation, supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds for the
application.24
In the present case, the sheriff resorted to substituted
service upon Ocampo through her uncle, who was the
caretaker of Ocampo’s old family residence in Tanauan,
Batangas. The CA held that substituted service was
improperly resorted to. It found that since Ocampo’s
“whereabouts are unknown and cannot be ascertained by
diligent inquiry x x x service may be effected only by
publication in a newspaper of general circulation.”25 /
We agree with the CA that substituted service is
improper under the facts of this case. Substituted service
presupposes that the place where the summons is being
served is the defendant’s current residence or
office/regular place of business. Thus, where the
defendant neither resides nor holds office in the address
stated in the summons, substituted service cannot be
resorted to. As we explained in Keister v. Navarro:26
Under the Rules, substituted service may be effect[ed]
(a) by leaving copies of the summons at the defendant’s
dwelling house or residence with some person of suitable
age and discretion then residing therein, or (b) by leaving
the copies at defendant’s office or regular place of business
with some competent person in charge thereof. The terms
“dwelling house” or “residence” are generally held to refer
to the time of service, hence it is not sufficient “to leave
the copy at defendant’s former dwelling house, residence,
or place of abode, as the case may be, after his removal
therefrom.” They refer to the place where the person
named in the summons is living at the time when the
service is made, even though he may be temporarily out of
the country at the time. Similarly, the
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Based on the sheriff’s report, it is clear that Ocampo no
longer resides in San Bernardo Village, Darasa, Tanauan,
Batangas. The report categorically stated that “defendant
Helen M. Ocampo and her family were already in Italy,”28
without, however, identifying any specific address. Even
BDO Remittance itself admitted in its petition for
recognition that Ocampo’s “whereabouts in Italy are no
longer certain.”29 This, we note, is the reason why in
alleging the two addresses of Ocampo, one in Italy and one
in the Philippines, BDO Remittance used the phrase “last
known [address]”30 instead of the usual “resident of.” Not
being a resident of the address where the summons was
served, the substituted service of summons is ineffective.
Accordingly, the RTC did not acquire jurisdiction over the
person of Ocampo.
BDO Remittance’s reliance on Palma v. Galvez31 is
misplaced for the simple reason that the case involved
service of summons to a person who is temporarily out of
the country. In this case, however, Ocampo’s sojourn in
Italy cannot be classified as temporary considering that
she already resides there, albeit her precise address was
not known. Modes of service of summons must be strictly
followed in order that the court
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/
56 SUPREME COURT REPORTS ANNOTATED
Express Padala (Italia) S.P.A., now BDO Remittance
(Italia) S.P.A. vs. Ocampo
may acquire jurisdiction over the person of the defendant.
The purpose of this is to afford the defendant an
opportunity to be heard on the claim against him.32 BDO
Remittance is not totally without recourse, as the rules
allow summons by publication and extraterritorial
service.33 Unlike substituted service, however, these are
extraordinary modes which require leave of court.
The service of summons is a vital and indispensable
ingredient of a defendant’s constitutional right to due
process. As a rule, if a defendant has not been validly
summoned, the court acquires no jurisdiction over his
person, and a judgment rendered against him is void.34
Since the RTC never acquired jurisdiction over the person
of Ocampo, the judgment rendered by the court could not
be considered binding upon her.
Consequently, it is no longer necessary to delve into the
other issues raised in the petition. These issues can be
resolved by the trial court upon acquiring jurisdiction over
Ocampo and giving her an opportunity to be heard. It is in
a better position to receive and assess the evidence that
may be presented by Ocampo, including the decree dated
June 29, 2010 issued by the High Court of Turin, to the
effect that her liability has been extinguished. While such
claim would tend to render the case moot, we refuse to
consider the argument at the first instance on two
grounds: first, we are not a trier of facts; and second, the
document submitted has not been authenticated in
accordance with the rules on evidence.
WHEREFORE, the petition is DENIED. The Decision
dated January 5, 2012 and Resolution dated June 27,
2012 of the Court of Appeals in C.A.-G.R. S.P. No. 113475
are AFFIRMED insofar as there was no valid service of
summons.
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The Decision dated September 14, 2009 of the Regional
Trial Court, Branch 212, Mandaluyong City in Civil Case
No. MCOS-3775 is declared VOID.
SO ORDERED.
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