490 Phil. 96
CARPIO MORALES, J.:
. . . Phua asseverated that in 1988, he was employed as Managing Director Syanibat Malayan Adjustment Co., Edu Blvd., Bldg., Kuala Lumpur, Malaysia when the summons was served by publication in a Cebu newspaper. In 1975, he bought Lot 7746 from Spouses Amarillo when he spent his vacation in the house of his brother-in-law at Salinas Compound, Lahug, Cebu City. Instead of using 957-B C. Aragon St., Malate, Manila, which was his residence at the time of the purchase, he merely stated in the Deed of Absolute Sale that he is a resident of Cebu City. Nevertheless, Juanito C. Mendoza, his brother-in-law transferred residence to 26 Paseo Annabelle, Maria Luisa Estate Park, Banilad, Cebu City sometime in 1976. He is presently residing at 31 Vicente R. Jayme St., BF Resort/Vista Grande Village, Las Piñas, Metro Manila.By the present assailed decision, the Court of Appeals ruled in Phua’s favor in this wise:
Phua further claimed that the service of summons by publication suffered from fatal defects, namely: (1) the motion for the service of summons by publication was not supported by an affidavit stating the grounds for the application in violation of Section 19; (2) the editor’s affidavit did not state that The Visayan Herald is a newspaper of general circulation, instead, it merely stated that it is a newspaper printed in Cebu City and circulated in the provinces and cities of Cebu and in the rest of Visayas and Mindanao; (3) there was no affidavit stating that a copy of the summons and order of publication were deposited, postage prepaid, in the post office and directed to the petitioner by registered mail to his last known address and (4) there was no notice of the date, place and time of hearing to the petitioner before issuance of a new title in violation of Section 170 of P.D. 1529, otherwise known as Property Registration Decree. (Emphasis in the original; underscoring supplied)[6]
First. a careful scrutiny of the pleadings showed that the motion for leave to serve summons to Phua by publication was granted by the court (Memorandum for Respondents, p. 4, Rollo, p. 406) although it was not supported by an affidavit setting forth the grounds relied upon by plaintiffs to effect such service. (Annex 7, Memorandum for Respondents, p. 438)Accordingly, the Court of Appeals disposed as follows:
Respondents, on their part, argued that Phua was not an unknown defendant under the contemplation of Section 16, Rule 14, which provides:“Whenever the defendant is designated as an unknown owner, or the like, or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and such places and for such time as the court may order.”The respondents further asserted that the foregoing circumstances (unknown owner, defendant whose address is unknown and cannot be ascertained by diligent inquiry) were absent. Certainly, Phua was a known buyer of Lot 7746 but he indicated an erroneous address in a public document. No less than the branch clerk of court and the process server exerted diligent efforts to serve the summons by personal service and postal service. They regarded these as substantial compliance with the rules.
We are not convinced.
Section 19, Rule 14 is categorical in requiring the said affidavit. Admittedly, there was failure to comply with the explicit submission of the same. Ineludible, this Court has no authority to dispense with such mandatory requirement. The law is unambiguous and its rationale clear. Time and again, this Court has declared that where the law speaks in clear and categorical language, there is no room for interpretation, vacillation or equivocation; there is room only for application. There is no alternative. The respondents cannot proffer excuse and rely on the efforts exerted by the personnel of the court who were not remised in their duties.
Second. The Visayan Herald is not a newspaper of general circulation.
In the case Valmonte et al. v. Court of Appeals, et al., 303 SCRA 278, 286 citing Sadang and Lachica v. Government Service Insurance System, 18 SCRA 491, 494, the Supreme Court ruled that the customary affidavit of the editor of “Voz de Manial,” duly introduced in evidence, that it was published in a newspaper of general circulation constitutes prima facie evidence of such fact. In another case, the High Tribunal regarded the affidavit of publication, executed by the publisher, business/advertising manager of the Luzon Weekly Courier, which states that it is a newspaper of general circulation in Rizal, as sufficient to consider the newspaper one of general circulation. (Bonnevie et al. v. Court of Appeals, et al., 125 SCRA 122)
In the instant suit, there was not even the customary affidavit of editor Jeremias S. Tundag that The Visayan Herald is a newspaper of general circulation. Instead, it merely stated that it is printed in Cebu City and circulated in the province and cities of Cebu and in the rest of the Visayan and Mindanao. Nowhere in the editor’s affidavit was it manifested that The Visayan Herald is published for the dissemination of local news and general information, that it has a bona fide subscription list of paying subscribers and that it is published at regular intervals. (Basa vs. Mercado, 61 Phil. 632) Hence, We are of ineluctable conclusion that there was no valid service of summons by publication.
Third, the trial court, having failed to acquire jurisdiction over the person of Phua in Civil Case No. 6057, the order of the cadastral court in Cadastral Case No. 12 LRC (GLRO) REC. NO. 9468 cancelling TCT Nos. RT-7585 and RT-62176, in favor of Spouses Amarillo and Phua, respectively and the issuance of a new transfer certificate to Luciano Pacaña pursuant to Section 107 of P. D. No. 1529, is null and void.
Finally, although the Court is not unaware of the fact that the respondents deposited the copy of the summons and the order of publication by registered mail in the post office, postage prepaid and were directed to the last known address of the petitioner pursuant to Section 21, service of summons by postal service is, regrettably not one of the modes sanctioned under the Rules. (Emphasis and italics in the original; underscoring supplied)[7]
WHEREFORE, the petition is GRANTED and the Decision of the Regional Trial Court of Cebu City, Branch 11 in Civil Case No. 6057 dated April 3, 1991 and the Order of the Regional Trial Court, Cebu City, Branch 10 in Cadastral Case No. 12 LRC (GLRO) REC. NO. 9468 dated March 24, 1995, are declared NULL and VOID for lack of jurisdiction over the person of the defendant. The Register of Deeds of Cebu City is ordered to cancel TCT No. 131189 and reinstate TCT No. 62176 in favor of the petition.Hence, the present petition of “Lagrimas Pacaña-Gonzales as one of the heirs of Luciano Pacaña.”
SO ORDERED. (Emphasis in the original)[8]
SEC. 16. Service upon an unknown defendant. — Whenever the defendant is designated as an unknown owner, or the like, or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (Underscoring supplied)Since Phua’s whereabouts were unknown and could not be ascertained by diligent inquiry, service of summons by publication was correctly availed of by the Heirs of Pacaña.
SEC. 19. Leave of court. — Any application to the court under this rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (Underscoring supplied)
SEC. 21. Proof of service by publication. — If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. (Underscoring supplied)