THIRD DIVISION

 

 

G.R. No. 170122:                  CLARITA DEPAKAKIBO GARCIA v. SANDIGANBAYAN and REPUBLIC OF THE PHILIPPINES

 

G.R. No. 171381:                  CLARITA DEPAKAKIBO GARCIA v. SANDIGANBAYAN and REPUBLIC OF THE PHILIPPINES

 

                                                                           Promulgated: October 12, 2009

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CONCURRING AND DISSENTING OPINION

 

 

CARPIO, J.:

 

 

         These are consolidated petitions under Rule 65[1] seeking to nullify various orders[2] issued by the Sandiganbayan involving two forfeiture cases against petitioner Clarita Depakakibo Garcia (Clarita).

 

         I concur with the ponente’s views that (1) the Sandiganbayan has and retains jurisdiction over the forfeiture cases, despite the subsequent filing of the plunder case; and (2) there is no need to consolidate the plunder case with the forfeiture cases to avoid double jeopardy.

 

         However, I cannot subscribe to the view that in both forfeiture cases, the Sandiganbayan lacked jurisdiction not only over the person of Clarita but also over Clarita’s children due to defective service of summons.

 

I.

G.R. No. 171381

 

 

         Twenty-two days after the filing of Forfeiture II case, subject of G.R. No. 171381, Clarita moved to dismiss the complaint for lack of jurisdiction over her person as a defendant, among other grounds.  In her Answer filed ad cautelam, Clarita maintained this defense of lack of jurisdiction over her person as a defendant.  However, instead of dismissing  Forfeiture II case for improper service of summons, the Sandiganbayan cited Philamlife v. Breva[3] to justify its non-dismissal of the complaint.

 

          The Sandiganbayan’s reliance on Philamlife[4] is misplaced because an amended complaint was subsequently filed therein which prompted the trial court to issue alias summons which was effectively served. Therefore, as the ponencia correctly concludes, the Sandiganbayan erred in not dismissing Forfeiture II case for lack of jurisdiction over Clarita.

 

         However, I disagree with the ponencia in extending the dismissal of Forfeiture II case, on the ground of lack of jurisdiction over the person of the defendant, to Clarita’s non-petitioning children and co-defendants. 

 

         Clarita is the lone petitioner in the present cases.  Clearly, here is no reason to apply by extension Clarita’s arguments in favor of her children and co-defendants Ian Carl, Juan Paolo and Timothy Mark, who are all of legal age.  In fact, the ponencia failed to state any basis for vicariously relating Clarita’s grounds to her children and co-defendants. The ponencia inexplicably extended to Clarita’s children the benefits arising from Clarita’s invocation of lack of jurisdiction over the person of the defendant.

 

         Lack of jurisdiction over the person, being subject to waiver, is a personal defense which can only be asserted by the party who can thereby waive it by silence.[5]  By failing to come to this Court to raise the matter of a purely personal defense, non-petitioning Clarita’s children and co-defendants have relinquished their right to avail of the present remedy.

 

         Since a court acquires jurisdiction over the person of the plaintiff or petitioner by the filing of the complaint, petition or initiatory pleading,[6] the Court has no jurisdiction over Clarita’s children who did not file any such pleading before this Court, and thus did not signify their submission to the Court’s power and authority.  Well-entrenched is the principle that a party who does not appeal, or file a petition for certiorari, like the present cases, is not entitled to any affirmative relief.[7]    

 

         In view of the foregoing, I agree with the conclusion in G.R. No. 171381 insofar as the Sandiganbayan has not acquired jurisdiction over the  person of Clarita alone.

                  

II.

G.R. No. 170122

 

        

         In its 20 January 2005 Resolution, the Sandiganbayan denied Clarita, et al.’s Motion to Dismiss dated 16 November 2004 (first motion to dismiss) and subsequently declared defendants in default.  In its 3 February 2005 and 23 February 2005 Resolutions, the Sandiganbayan denied two motions for reconsideration.

 

         Despite notice of the default order, Clarita did not file any motion to set it aside. Instead of forthwith pursuing the proper remedy,[8] Clarita allowed a considerable length of time to lapse.

 

         Clarita thereafter filed a Manifestation with Motion dated 15 April 2005 for the consolidation of Forfeiture I case with the plunder case, and another Motion to Dismiss dated 26 July 2005 (second motion to dismiss).

 

         In its Order of 5 August 2005, the Sandiganbayan merely noted the second motion to dismiss in view of its standing default order.  Notably, it was only in this second motion to dismiss that the ground of lack of jurisdiction over the person of the defendant was first raised.  In its Order of 26 August 2005, the Sandiganbayan denied reconsideration of the 5 August 2005 Order after finding a mere repetition of the arguments raised.

 

         Since Clarita had already been declared in default, the Sandiganbayan could not be compelled by mandamus to recognize her right to participate in the proceedings and resolve her motions, without lifting the default order first.  As mentioned earlier, Clarita did not pursue the proper remedies available to a party declared in default.  She did not file a motion under oath to set aside the order of default or a petition for certiorari after receipt of the 20 January 2005 Resolution of the Sandiganbayan denying the first motion to dismiss.  The 60-day reglementary period provided by law to assail the  Sandiganbayan Resolutions dated 20 January 2005 and 3 February 2005 via certiorari, aside from having lapsed, may no longer be pursued since these two Resolutions had already been upheld by this Court in its Decision dated 31 August 2006 in G.R. No. 167103, entitled Garcia v. Sandiganbayan.[9]

 

          Regardless, it is my view that Clarita voluntarily submitted herself to the jurisdiction of the Sandiganbayan in the Forfeiture I case.

 

         Section 20, Rule 14 of the Rules of Court provides:

 

Sec. 20. Voluntary appearance. -- The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

 

 

         The Rule clearly provides that the defendant’s voluntary appearance shall be equivalent to service of summons.  I disagree with the ponencia’s conclusion that Clarita’s special appearance to question the Sandiganbayan’s jurisdiction is not voluntary appearance. While the ponencia mentioned some of Clarita’s pleadings which were filed by way of special appearance, it ignored certain material facts.  The first motion to dismiss filed by all the defendants, including Clarita, raised the sole ground of “no jurisdiction over separate civil actions for forfeiture of unlawfully acquired properties.”[10]  It was only after more than six months from the denial of the first motion to dismiss that Clarita raised, via the second motion to dismiss, the ground of lack of jurisdiction over her person as defendant.

 

 

 

         In Fernandez v. Court of Appeals,[11] this Court ruled that an appearance in whatever form, without expressly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person.  A defendant may, e.g., appear by presenting a motion and unless by such appearance he specifically objects to the jurisdiction of the court, he thereby gives his assent to the jurisdiction of the court over his person.

 

         Clarita failed to assert the defense of lack of jurisdiction over her person as a defendant in her Answer, even if filed ex abundante ad cautelam.  Here, she interposed only the defense of “no cause of action” upon a claim of legitimate acquisition of the properties subject of the case.  Likewise, the Manifestation with Motion dated 15 April 2005 exhibits voluntary appearance on the part of Clarita who moved not to dismiss but to transfer or consolidate the Forfeiture I case with the plunder case which was pending in a different division of the Sandiganbayan.  Such filing of the motion to consolidate was not a conditional appearance entered to question the regularity of the service of summons. Clarita expressly waived her remedy against the default order when she filed such motion “without any intention of participating in the default proceedings.”[12] 

 

          Since Clarita invoked the transfer or consolidation of the cases as an affirmative relief, this clearly indicates a recognition of the Sandiganbayan’s power and authority.  This is inconsistent with a special appearance for the sole purpose of questioning the court’s lack of jurisdiction.  In Hongkong & Shanghai Banking Corp., Ltd. v. Catalan,[13] this Court held:

 

 It must be noted that HSBANK initially filed a Motion for Extension of Time to File Answer or Motion to Dismiss. HSBANK already invoked the RTC’s jurisdiction over it by praying that its motion for extension of time to file answer or a motion to dismiss be granted.  The Court has held that the filing of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the court.  Consequently, HSBANK’s expressed reservation in its Answer ad cautelam that it filed the same “as a mere precaution against being declared in default, and without prejudice to the Petition for Certiorari and/or Prohibition...now pending before the Court of Appeals” to assail the jurisdiction of the RTC over it is of no moment.  Having earlier invoked the jurisdiction of the RTC to secure affirmative relief in its motion for additional time to file answer or motion to dismiss, HSBANK effectively submitted voluntarily to the jurisdiction of the RTC and is thereby estopped from asserting otherwise, even before this Court. (Italics in the original; emphasis supplied)   

 

 

         From the foregoing, I submit that the Sandiganbayan acquired jurisdiction over the person of Clarita in the Forfeiture I case.

 

         In sum, Clarita failed to substantiate her allegations that the Sandiganbayan: (1) had not acquired jurisdiction over her person as a defendant in the Forfeiture I case; (2) gravely abused its discretion when it merely noted her second motion to dismiss in view of its standing default order; and (3) unlawfully neglected to perform its legal duty.

 

         Accordingly, I vote to GRANT the petition for certiorari filed by Clarita Depakakibo Garcia alone in G.R. No. 171381 and to DISMISS the petition for certiorari and mandamus in G.R. No. 170122.

 

 

 

 

                                                         ANTONIO T. CARPIO

                                                               Associate Justice

 

 

 


[1]G.R. No. 170122 is a petition for certiorari and mandamus while G.R. No. 171381 is a petition for certiorari.

[2]In G.R. No. 170122, Clarita assails the 5 August 2005 and 26 August 2005 Orders of the Sandiganbayan, Fourth Division.

 

      In G.R. No. 171381, Clarita challenges the 9 November 2005 Resolution issued by the Sandiganbayan, Fourth Division.

[3]484 Phil. 824 (2004).

[4]Id.

[5]Carandang v. Heirs of Quirino A. De Guzman, G.R. No. 160347, 29 November 2006, 508 SCRA 469, 480.  See La Naval Drug Corp. v. Court of Appeals, G.R. No. 103200, 31 August 1994.

[6]De Joya v. Marquez , G.R. No. 162416, 31 January 2006, 481 SCRA 376. See Montaner v. Shari’a District Court, G.R. No. 174975, 20 January 2009.

[7]Aklan College, Inc. v. Enero,  G.R. No. 178309, 27 January 2009; Corinthian Gardens Association, Inc. v. Tanjangco, G.R. No. 160795, 27 June 2008, 556 SCRA 154; Tangalin v. Court of Appeals, G.R. No. 121703, 29 November 2001.

[8]In Cerezo v. Tuazon, 469 Phil. 1020 (2004), the Court provided the remedies available to a party declared in default.  The remedies are as follows:

      a) The  defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);

      b) If the judgment has already been rendered when defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under Section 1(a) of Rule 37;

      c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Section 2 [now Section 1] of Rule 38; and

      d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41).

 

      Moreover, a petition for certiorari to declare the nullity of a judgment by default is also available if the trial court improperly declared a party in default, or even if the trial court properly declared a party in default, if grave abuse of discretion attended such declaration. (Italics in the original; emphasis supplied)

[9]      G.R. No. 167103, 31 August 2006, 500 SCRA 631.

[10]     Rollo (G.R. No. 170122), p. 81.

[11]     G.R. No. 131094, 16 May 2005, 458 SCRA 454.

[12]     Rollo (G.R. No. 170122), p. 214.

[13]     483 Phil. 525, 542-543 (2004).