NM
ROTHSCHILD & SONS (AUSTRALIA) LIMITED vs LEPANTO CONSOLIDATED MINING
COMPANY
G.R. No. 175799
November
28, 2011
FACTS:
On August 30, 2005, Lepanto Consolidated Mining Company filed with
the Regional Trial Court of Makati City a Complaint against NM Rothschild &
Sons (Australia) Limited praying for a judgment declaring the loan and hedging
contracts between the parties void for being contrary to Article 2018 of the
Civil Code of the Philippines and for damages.
Upon respondent’s motion, the trial court authorized respondent’s
counsel to personally bring the summons and Complaint to the Philippine
Consulate General in Sydney, Australia for the latter office to effect service
of summons on petitioner.
On October 20, 2005, petitioner filed a Special Appearance With
Motion to Dismiss praying for the dismissal of the Complaint on the grounds
that the court has not acquired jurisdiction over the person of petitioner due
to the defective and improper service of summons; the Complaint failed to state
a cause of action; respondent does not have any against petitioner; and other
grounds.
On December 9, 2005, the
trial court issued an Order denying the Motion to Dismiss providing that there
was a proper service of summons through the Department of Foreign Affairs on
account of the fact that the defendant has neither applied for a license to do
business in the Philippines, nor filed with the Securities and Exchange
Commission a Written Power of Attorney designating some person on whom summons
and other legal processes maybe served. The trial court also held
that the Complaint sufficiently stated a cause of action. The other
allegations in the Motion to Dismiss were brushed aside as matters of defense
which can best be ventilated during the trial.
On April 3, 2006,
petitioner sought redress via a Petition for Certiorari with the
Court of Appeals, alleging that the trial court committed grave abuse of
discretion in denying its Motion to Dismiss.
On September 8, 2006,
the Court of Appeals rendered the assailed Decision dismissing the Petition
for Certiorari.
Hence, petitioner filed
the present petition assailing the Decision and Resolution of the Court of
Appeals.
ISSUE:
Whether or not the RTC is considered to have
committed grave abuse of discretion amounting to lack or excess of jurisdiction
in the denial of the Motion to Dismiss on account of its failure to acquire
jurisdiction over the person of the defendant.
HELD:
Petitioner alleges that
the RTC has not acquired jurisdiction over its person on account of the
improper service of summons. Summons was served on petitioner
through the DFA, with respondent’s counsel personally bringing the summons and
Complaint to the Philippine Consulate General in Sydney, Australia.
Respondent argues that
extraterritorial service of summons upon foreign private juridical entities is
not proscribed under the Rules of Court.
Section 15, Rule 14,
however, is the specific provision dealing precisely with the service of
summons on a defendant which does not reside and is not found in the
Philippines.
Breaking down Section
15, Rule 14, it is apparent that there are only four instances wherein a
defendant who is a non-resident and is not found in the country may be served
with summons by extraterritorial service, to wit: (1) when the
action affects the personal status of the plaintiffs; (2) when the action
relates to, or the subject of which is property, within the Philippines, in
which the defendant claims a lien or an interest, actual or contingent; (3)
when the relief demanded in such action consists, wholly or in part, in
excluding the defendant from any interest in property located in the
Philippines; and (4) when the defendant non-resident's property has been
attached within the Philippines. In these instances, service of
summons may be effected by (a) personal service out of the country, with leave
of court; (b) publication, also with leave of court; or (c) any other manner
the court may deem sufficient.
Undoubtedly,
extraterritorial service of summons applies only where the action is in
rem or quasi in rem, but not if an action is in
personam. . On the other hand, when the defendant or
respondent does not reside and is not found in the Philippines, and the action
involved is in personam, Philippine courts cannot try any case
against him because of the impossibility of acquiring jurisdiction over his
person unless he voluntarily appears in court
It is likewise settled that an action in
personam is lodged against a person based on personal liability; an
action in rem is directed against the thing itself instead of
the person; while an action quasi in rem names a person as
defendant, but its object is to subject that person’s interest in a property to
a corresponding lien or obligation.
The Complaint in the
case at bar is an action to
declare the loan and Hedging Contracts between the parties void with a prayer
for damages. It is a suit in which the plaintiff seeks to be
freed from its obligations to the defendant under a contract and to hold said
defendant pecuniarily liable to the plaintiff for entering into such
contract. It is therefore an action in personam, unless
and until the plaintiff attaches a property within the Philippines belonging to
the defendant, in which case the action will be converted to onequasi in rem.
Since the action involved in the case at bar
is in personam and since the defendant, petitioner
Rothschild/Investec, does not reside and is not found in the Philippines, the
Philippine courts cannot try any case against it because of the impossibility of
acquiring jurisdiction over its person unless it voluntarily appears in court
In this regard, respondent vigorously argues
that petitioner should be held to have voluntarily appeared before the trial
court when it prayed for, and was actually afforded, specific reliefs from the
trial court.
The Court therefore rule that petitioner, by
seeking affirmative reliefs from the trial court, is deemed to have voluntarily
submitted to the jurisdiction of said court. A party cannot invoke
the jurisdiction of a court to secure affirmative relief against his opponent
and after obtaining or failing to obtain such relief, repudiate or question
that same jurisdiction
Consequently, the trial court cannot be
considered to have committed grave abuse of discretion amounting to lack or
excess of jurisdiction in the denial of the Motion to Dismiss on account of
failure to acquire jurisdiction over the person of the defendant.
Petition is DENIED
Walang komento:
Mag-post ng isang Komento