HERNANDO, J.:
WHEREFORE, the Court issues the following Temporary Protection Order (effective for a period of 30 days from service on the respondent and deemed automatically renewed every 30 days thereafter until the disposition of this case):The court sheriff made several attempts to personally serve the summons, petition, and TPO to Jay at his address but the security guard said he was not around. He also tried to serve them at the office of his employer, only to be told that appellant was abroad for deployment.[15]
The court orders JAY VILLANUEVA SABADO to stay away at a distance of 200 meters from petitioner Tina Marie L. Sabado and desist from publicly humiliating her and other forms of abuse.
The respondent is given five days from notice within which to file opposition.
IF THE RESPONDENT APPEARS WITHOUT COUNSEL ON THE DATE OF THE PRELIMINARY CONFERENCE AND HEARING ON THE MERITS ON THE ISSUANCE OF A PERMANENT PROTECTION ORDER, WHICH IS HEREBY SET ON JANUARY 17, 2013 AT 3:00 O'CLOCK IN THE AFTERNOON, THE COURT SHALL NOT RESCHEDULE NOR POSTPONE THE PRELIMINARY CONFERENCE AND HEARING BUT SHALL APPOINT A LAWYER FOR THE RESPONDENT AND IMMEDIATELY PROCEED WITH THE HEARING.
IF THE RESPONDENT FAILS TO APPEAR ON THE DATE OF THE PRELIMINARY CONFERENCE AND HEARING ON THE MERITS DESPITE PROPER NOTICE, THE COURT SHALL ALLOW EX PARTE PRESENTATION OF EVIDENCE BY THE PETITIONER AND RENDER JUDGMENT ON THE BASIS OF THE PLEADINGS AND EVIDENCE ON RECORD. NO DELEGATION OF THE RECEPTION OF EVIDENCE SHALL BE ALLOWED.
The Court directs the immediate issuance of the corresponding notice.
SO ORDERED.[14]
Ruling of the Regional Trial Court: |
Summons is a procedural tool. It is a writ by which the defendant is notified that an action was brought against him or her. In an action in personam, brought to enforce personal rights and obligations, jurisdiction over the person of the defendant is mandatory. In such actions, therefore, summonses serve not only to notify the defendant of the filing of an action, but also to enable acquisition of jurisdiction over his person.Clearly, jurisdiction over the person of the respondent in a petition for TPO!PPO under RA 9262 can be acquired through any of the means of serving summons under the Rules of Court. In an action in personam such as a petition for TPO/PPO under RA 9262, the purpose of summons is two-fold: (1) to notify the defendant that an action has been brought against him; and (2) to acquire jurisdiction over the person of the defendant.[38] When the defendant does not voluntarily submit to the court's jurisdiction or when there is no valid service of summons, any judgment of the court which has no jurisdiction over the person of the defendant is null and void.[39] This underscores the importance of the proof of service of summons under the Rules of Court:
A protection order is not a procedural mechanism, which is imperative for the progression of an initiated action. Rather, it is itself a substantive relief which "prevent[s] further acts of violence against a woman or her child specified in Section 5 of [the Anti-VAWC Law] and granting other necessary relief." x x x
x x x x
x x x [S]ummons and temporary protection orders are entirely different judicial issuances. It is true that the latter also serves the purpose of conveying information. However, this information pertains not to the filing of an action but merely to the schedule of an upcoming hearing. The similarities of a summons and a protection order begin and end with their informative capacity. At no point does the Anti-VAWC Law intimate that the temporary protection order is the means for acquiring jurisdiction over the person of the respondent.
Section 15 of the Anti-VAWC Law's reference to "immediate personal service" is an incident of the underlying urgency which compelled the ex parte issuance of a protection order. It should not be construed as a restriction on the manner of acquisition of jurisdiction over the person of the respondent. Otherwise, far from relieving a manifest urgency, it stifles a civil action for the issuance of a protection order right at the moment of its initiation. Construed as such, a temporary protection order is twisted to a shrewdly convenient procedural tool for defeating the very purposes for which it was issued in the first place.
x x x x
Section 1 of A.M. No. 04-10-11-SC expressly states that while it governs petitions for the issuance of protection orders under the Anti-VAWC Law, "[t]he Rules of Court shall apply suppletorily." In the silence of A.M. No. 04-10-11-SC, service of summons - the means established by the 1997 Rules of Civil Procedure for informing defendants and/or respondents of the filing of adverse actions, and for the acquisition of jurisdiction over their persons - remains efficacious.[37] (Emphasis and underscoring supplied)
The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy.[40]In the case at bar, the sheriff attempted to personally serve the summons, petition, and TPO in Jay's residence and place of employment as per the Sheriffs Return:
THIS IS TO CERTIFY [that] on several occasions the undersigned tried to serve personally upon respondent JAY VILLANUEVA SABADO a copy of herein summons together with the petition and its annexes as well as the copy of TEMPORARY PROTECTION ORDER dated October 22, 2012 issued by the Honorable Court in the above-entitled case, at the stated address x x x but to no avail for the reason that said respondent were out of his place according to the Guard on Duty.However, records show that Jay was out of the country from August 7, 2012 to January 5, 2013 due to his overseas employment. Since personal service could not be effected upon him, summons should be served through substituted service, extraterritorial service, or by publication in accordance with Sections 7, 15 and 16, Rule 14 of the Rules of Court:
That on October 30, the undersigned went at the office of respondent at ELMIRA SHIPPING PHILS., INC. x x x as per information given by Ms. Malou, an employee of Elmitra [sic] Shipping Phils. Inc., that according to her the said respondent were on Board, but according to her she did not known [sic] when he [sic] coming back.
IT IS FURTHER CERTIFIED, that on November 16, 2012 at around 4:05 pm the counsel of respondent, Atty. Gary O. Palmero, arrived at the Regional Trial Court of Makati City, Branch 136, and he received a copy of the Court Order and the Petition for his client.
WHEREFORE, the herein Summons and Temporary Protection Order are hereby returned to this Honorable Court of origin for its record and information.[41]
Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's 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.Notably, none of these modes of service were resorted to by Tina. While the CA is correct in quoting GCP-Manny Transport Services, Inc. v. Prinsipe[42] that notice to counsel is equivalent to notice to client, the very same case also states that it is notice sent to counsel of record which is binding upon the client.[43] In the case at hand, Atty. Palmero was Jay's counsel in a separate criminal case filed against the latter for violation of RA 9262 pending at that time before Branch 140 of the RTC of Makati. Therefore, Jay had no counsel of record yet with Branch 136 of the RTC of Makati at the time Atty. Palmero received the copy of the order and TPO.
Section 15. Extraterritorial service. - When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.
Section 16. Residents temporarily out of the Philippines. - When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (Emphases supplied)
There is voluntary appearance when a party, without directly assailing the court's lack of jurisdiction, seeks affirmative relief from the court. When a party appears before the court without qualification, he or she is deemed to have waived his or her objection regarding lack of jurisdiction due to improper service of summons. When a defendant, however, appears before the court for the specific purpose of questioning the court's jurisdiction over him or her, this is a special appearance and does not vest the court with jurisdiction over the person of the defendant. (Emphasis supplied; citations omitted)Frias v. Alcayde[48] instructs that -
When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. This is not, however, always the case. Admittedly, and without subjecting himself to the court's jurisdiction, the defendant in an action can, by special appearance object to the court's assumption on the ground of lack of jurisdiction. If he so wishes to assert this defense, he must do so seasonably by motion for the purpose of objecting to the jurisdiction of the court, otherwise, he shall be deemed to have submitted himself to that jurisdiction. (Emphases supplied)Moreover, Navale v. Court of Appeals,[49] holds that:
Defects of summons are cured by voluntary appearance and by the filing of an answer to the complaint. A defendant [cannot] be permitted to speculate upon the judgment of the court by objecting to the court's jurisdiction over its person if the judgment is adverse to it, and acceding to jurisdiction over its person if and when the judgment sustains its defense.Clearly, the trial court acquired jurisdiction over Jay through his voluntary appearance when he sought the lifting of the TPO and the denial of the issuance of PPO in his opposition, without raising the issue of lack of jurisdiction over his person. By such conduct, he can no longer subsequently object to the court's jurisdiction.