COL. LUVIN S. MANAY, (RET), COL. ANTONIO MANTUANO (RET), 2LT. JOHNSON NESTOR OCFEMIA (RET), MAJ. JOSE A. ELAURZA (RET) AND COL. ANSELMO R. GERONIMO (RET), PETITIONERS, VS. HON. …
DIMAAMPAO, J.:
In this Petition for Certiorari, petitioners assail, on the ground of grave abuse of discretion, the Orders dated 14 October 2005[1] and 28 October 2005[2] of the Regional Trial Court of Pasay City, Branch 117, which denied petitioner’s prayer for a 20-day restraining order and motion for reconsideration thereof, respectively.
The factual backdrop of the case is hereunder summarized:
Private respondent Air Materiel Wing Savings and Loan Association, Inc. (“AMWSLAI”) is a corporation duly organized and existing under and by virtue of the laws of the Philippines. Under its By-Laws[3], the eleven (11) members of its Board of Trustees (Board) shall hold office for a term of three (3) years.[4]
Conceding to the clamor for a new set of Trustees, petitioners and private respondents Col. Nolasco, Jr., Col. Estalilla, and Lt. Mercado, then members of the Board, cut short their terms and submitted en masse their letters of resignation.[5] Parenthetically, three (3) other members of the Board[6] had earlier resigned from their positions. In Board Resolution No. 2005-353[7] dated 7 September 2005, the Board accepted the mass resignation and declared vacant all the eleven (11) seats. The said Resolution likewise resolved the holding of a general election on 14 October 2005.
Pursuant to Article XIII of AMWSLAI By-Laws, the Board created a Committee on Elections (“AMWSLAI-COMELEC”) composed of private respondents MGen. Rodolfo S. Estrellado (Ret.), as Chairman, and Col. Gregorio G. Paduganan and Lt. Col. Rolando G. Jungco as Members.
Together with some other members of AMWSLAI, petitioners and private respondents Col. Nolasco, Jr., Col. Estalilla, Lt. Mercado, Col. Abad, BGen. Estepa, Col. Dimapilis Jr., Col. Gumba, Col. Tapac, Maj. Cacabelos, Lt. Toledanes, Lt. Perido and Lt. Reyes, filed their respective Certificates of Candidacy for the 14 October 2005 Election. Unfortunately, the AMWSLAI-COMELEC disqualified petitioners from being eligible to run in the election. Accordingly, notices of dis-qualification[8] were individually sent to them.
Having been placed in a disadvantageous position, petitioners then tried to withdraw their respective resignation on the ground that it was tendered upon understanding “that there would be a fair and honest election on October 14, 2005”. It appears however, that the withdrawals were not acted upon by the former Board.
Left with no other recourse, petitioners filed on 12 October 2005 a Petition[9] for Election Protest With Prayer for a Writ of Preliminary Injunction/Prohibition and/or Temporary Restraining Order before the Regional Trial Court (RTC) of Pasay City against the AMWSLAI-COMELEC represented by MGen. Rodolfo S. Estrellado (Ret.), Col. Gregorio G. Paduganan and Lt. Col. Rolando G. Jungco; and AMWSLAI. The Petition seeks to enjoin the AMWSLAI-COMELEC from disqualifying them as candidates and to stop the holding of the 14 October 2005 Election. Petitioners alleged therein that the act of AMWSLAI-COMELEC disqualifying them to run from office is unwarranted because the alleged violations which became the basis for disqualification are still under investigation by the Bangko Sentral ng Pilipinas (BSP), and that on 29 September 2005 the AMWSLAI-COMELEC Chairman even wrote to BSP inquiring whether or not they (petitioners) are qualified to run.[10]
Also on even date, petitioners filed an Ex-Parte Motion for Immediate/Special Raffle and/or Cognizance and Issuance of An Ex-Parte Temprorary Restraining Order.[11]
On 13 October 2005, Executive Judge Caridad Grecia-Cuerdo of RTC-Pasay City issued an Order[12] granting petitioners’ prayer for a 72-hour Temporary Restraining Order (TRO), as follows:
“The petitioners have fully established to the satisfaction of this Court that if the holding of the “GENERAL ELECTIONS” of the members of the Board of Trustees of AMWSLAI, scheduled on October 14, 2005 from 8:00 a.m. to 5:00 p.m. will not be enjoined or restrained, they stand to suffer grave injustice and irreparable injury. The matter is also of extreme urgency taking into consideration that the act sought to be enjoined/restrained is scheduled to be held tomorrow, October 14, 2005.
WHEREFORE, an Executive Temporary Restraining Order is hereby issued for a period of 72 hours from today, restraining the Respondents from holding and/or conducting the subject election scheduled on October 14, 2005 at 8:00 a.m. to 5 p.m. This is without prejudice to the provision of Section 5, Rule 58 of the 1997 Rules of Court. The Clerk of Court and Ex-Officio Sheriff or any her Deputy Sheriff is hereby ordered to cause the implementation of this Order. Service of the required notice of hearing shall be served by the commercial court to which this case will be assigned.”
On the same date, Sheriff Virgilio Villar served copies of the Summons (with copy of Complaint and its Annexes), Notice of Raffle and the 72-Hour TRO, at the AMWSLAI Building, thru Ms. Kathy Liong, an “authorized receiving personnel”, as shown in the Sheriff’s Return[13], which, for easy reference is hereunder reproduced.
“SHERIFF’S RETURN
This is to certify that on this date October 13, 2005, undersigned Sheriff IV, caused the service of Summons together with the attached Complaint and its Annexes, copy of Order dated October 13, 2005 and Notice of Raffle dated October 13, 2005 in connection with the above-entitled case upon defendants, THE COMMITTEE ON ELECTIONS OF AIR MATERIEL WING SAV. AND LOAN ASSOC., MAJ. GEN. RODOLFO S. ESTRELLADO, COL. GREGORIO G. PADUGANAN, LTC. ROLANDO G. JUNGCO AND AIR MATERIEL WING SAV. AND LOAN ASSOC., INC. all of AMWSLAI BLDG., cor. B. Serrano and 18th St., Murphy Quezon City, thru MS. KATHY LIONG, AMWSLAI’s authorized receiving personnel who personally received copies of said Court Processes on behalf of all the above-named defendants as shown by her signature appearing on the original copy of summons, Order and Notice of Raffle.”
However, in an interesting turn of events, Ms. Katheryn “Kathy” Liong returned all the pleadings/notices and orders in the afternoon of the same day at the Office of the Clerk of Court of the RTC, Pasay City. In her letter[14], Ms. Liong stated that she is “returning the . . . documents . . . which w(ere) mistakenly left with (her) . . . because (she is) not authorized to receive the copies on behalf of the other defendants, MAJ GEN RODOLFO S ESTRELLADO (RET), COL. GREGORIO G PADUGANAN AND LTC ROLANDO G. JUNGCO.”
The following day, public respondent, then Presiding Judge of Branch 117, RTC, Pasay City (where the case was subsequently raffled) conducted a hearing on the application for the 20-day Temporary Restraining Order (TRO). Counsels for petitioners and AMSLAI appeared. On the other hand, intervenor Atty. Fe Padilla, one of the candidates for the Board, entered her appearance on her behalf.
Immediately after the hearing, public respondent issued the assailed first assailed Order denying the issuance of a TRO upon a finding that summonses were not properly served upon the representatives of AMWSLAI-COMELEC. The public respondent reasoned?
“Only natural or juridical persons, or entities authorized by law may be parties in a civil action” (Sec. 1, Rule 3). The Committee on Election (COMELEC) of AMWSLAI is indisputably not a juridical person or an entity authorized by law to be a party to a suit. Hence, it cannot be a party to an action and is thus erroneously impleaded in the instant case. Only Maj. Gen. Estrellado, Col. Paduganan and LTC Jungco as constituting the COMELEC may be properly impleaded.
In the matter of service of summons upon Maj. Gen. Estrellado, Col. Paduganan and LTC Jungco, the following are the applicable rules:
“Sec. 6. Service in person on defendant. – Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.
“Sec. 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.”
The Sheriff’s return of the summons states that the summons, the copies of the petition and the TRO intended for these individual respondents were served not upon them personally in violation of Section 6. They were served upon Katheryn R. Liong, an HR Specialist of AMWSLAI. Nothing is thus far shown that all these individual respondents hold office or conduct business in the place where Ms. Liong works and that Ms. Liong is in charge thereof.
Substituted service may be availed of for justifiable cause. But the impossibility of personal service should be explained in the proof of service showing that efforts were exerted therefore, hence the resort to substituted service (Keister vs. Navarro, et al., L-29067, May 31, 1977) and such facts must be reported in the proof of service, otherwise the substituted service is invalid (Busuego vs. Court of Appeals, et al., L-48955, June 30, 1971; Venturanza vs. Court of Appeals, et al., G.R. No. 77760, December 11, 1987).
These individual respondents are the ones conducting the elections sought to be restrained. They are the real objects of this court’s temporary restraining order. Unfortunately, no summons, no petition, and no restraining order were served upon them. In fine, this court has not acquired jurisdiction over these persons. Worse, as the petitioners themselves admit, the elections were held and presumably carried on to its final conclusion. There is thus nothing left to be restrained.”
Meanwhile, on 19 October 2005, Sheriff Villar submitted a Supplemental Sheriff’s Report[15] explaining the resort to substituted service. Being material to the resolution of this petition, pertinent portions of the said report are quoted below:
“THIS IS TO CERTIFY that when the undersigned sheriff caused the service of the Summons, together with a copy of the Complaint therewith accompanying, Order dated October 13, 2005 and the Notice of Raffle upon the respondents at the given address on October 13, 2005, diligent efforts were exerted to cause the personal service of the same in accordance with Sections 6 and 11, Rule 14, of the 1997 Rules of Civil Procedure despite the time constraint inherent upon the case.
However, despite such efforts, respondents Maj. Gen. Rodolfo Estrellado, Col. Gregorio Paduganan, and LTC Rolando G. Jungco could not be found, while the officers authorized by the Rules of Court to receive in behalf of respondents COMELEC of AMWSLAI and those of AMWSLAI itself are likewise not available at the same time.
Upon inquiry inside the AMWSLAI office, the undersigned was pointed to the office of Ms. Kathy Liong who was said to be authorized to receive documents for the respondents.
As the above-stated documents were shown and explained to said Ms. Kathy Liong, the latter confirmed that she is the one authorized by their office (AMWSLAI) to receive such documents and further confirmed that she is also authorized to receive the same for and in behalf of respondents Maj. Gen. Rodolfo Estrellado, Col. Gregorio Paduganan, and LTC Rolando G. Jungco and of the COMELEC OF AMWSLAI.
Thus, the undersigned caused the service of the aforesaid documents to the respondents, all thru Ms. Liong, who acknowledged receipt thereof by affixing her signature on the stamp “RECEIVED” which she placed on the upper right hand of the original of each of said documents thus served.
. . .
It bears to stress that the said documents were not mistakenly left but was actually served upon the respondents, thru Ms. Liong, upon her confirmation that she is authorized to receive such. Whatever made her change her mind or which made her later decide that she is not authorized to receive these documents is beyond my knowledge and is already beyond the scope of my duties because I have already returned the said documents to the Court of origin.”
Forthwith, petitioners filed a Motion to Recall Order Declaring Non-Service of Order[16], which virtually sought reconsideration of the Order denying the issuance of the TRO. The motion was denied in the second assailed Order[17] dated 28 October 2005.
Hence, this petition.
Petitioners argue in main that contrary to the findings of the public respondent, the court properly acquired jurisdiction over the persons of the private respondents because the summonses were properly served on them.
We agree. We find the petition meritorious.
At the outset, We find it necessary to reiterate the following relevant facts demonstrative of AMSLAI-COMELEC’s bad faith in dealing with petitioners. Petitioners and private respondents Col. Nolasco, Jr., Col. Estalilla, and Lt. Mercado, then members of the AMWSLAI Board, undeniably cut short their terms to give way to the conduct of early election. The former Board even expressed its appreciation for the “selfless gesture of the resigning Trustees”.[18] Yet, the COMELEC-AMWSLAI disqualified petitioners to run in the election even when (a) the AMWSLAI-COMELEC Chairman’s letter to BSP inquiring whether or not they (petitioners) are qualified to run has not yet been answered; and, (b) the complaint for permanent disqualification as Trustees filed before the BSP has not yet been resolved. For their selfless gestures of shortening their terms of office to pave way for the election, petitioners were slapped with arbitrary disqualification, without waiting for the BSP ruling on the matter.
While We cannot rule on said issue of disqualification, the foregoing circumstances readily indicate AMSLAI-COMELEC’s unmitigated predisposition against petitioners. This, to Our mind, should have demanded from public respondent a cautious attitude in ruling on the propriety of extending the TRO, especially so when the election enjoined was precipitately held on 14 October 2005, during the lifetime of the 72-hour-TRO and at the same time that the hearing on its extension was still being conducted.
Now to the resolution of the main issue.
It is very clear in the assailed Orders that public respondent did not rule on the merits of extending the preventive writ; it instead refrained from so doing upon a finding that copies of the summons were not properly served. We find, however, that this finding has no concrete legal mooring.
The public respondent ruled that the AMWSLAI-COMELEC is not a juridical person, hence, it cannot be a party to an action. As such, only the individuals constituting it may be impleaded, and jurisdiction on their persons may be acquired through personal service of summons, or through substituted service, in the event that personal service cannot be effected. According to the public respondent, Sheriff Villar resorted to the second mode of service without explaining the impossibility of personal service, hence, the said service of summons was invalid.
We are not persuaded. Viewing AMWSLAI-COMELEC from whatever feasible legal angle, as an entity without juridical personality or as a non-entity (in which case only the individuals constituting it may be impleaded as parties), summonses were definitely properly served.
It bears stressing that the purpose of Summons is to acquire jurisdiction over the person of the defendant, to give notice that an action has been commenced against it.[19] Since it is undisputed that AMWSLAI has been duly served with Summons, such service should be deemed service upon AMWSLAI-COMELEC, a creation with no personality of its own. The notice to AMWSLAI of the action to enjoin the election is sufficient notice to AMWSLAI-COMELEC. AMWSLAI-COMELEC is a mere creation of AMWSLAI. Its “business” subserves AMWSLAI, that is, to oversee the election of its Board of Trustees.
This is akin to a situation when a corporation is being sued for the conduct of one of its departments. Surely, summons need not be served upon the department separately, summons upon the corporation is sufficient.
Moreover, the holding of election of a corporation’s Board of Trustees is undoubtedly a corporate act, and a controversy in the election is an intra-corporate controversy.[20] An intra-corporate controversy is one which arises between a stockholder and the corporation.[21] Involving as it does the corporation itself, service of summons must be made upon it.
From another perspective, even assuming, ex gratia argumentis, that AMWSLAI- COMELEC is a separate entity without juridical personality, the service of the Summons upon Ms. Liong is sufficient service on it. Section 8, Rule 14 of the 1997 Rules of Civil Procedure provides:
“Section 8. Service upon entity without juridical personality. — When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. x x x” (Emphasis supplied)
Relative thereto, the assailed Order dated 14 October 2005 deduced that it was not “shown that all these individual respondents hold office or conduct business in the place where Ms. Liong works and that Ms. Liong is in-charge thereof.” A mere perusal of Ms. Liong’s letter[22] and the series of correspondences[23] made by the AMWSLAI-COMELEC to petitioners and the BSP, annexed to the “Election Protest”, belies this conclusion. The letter used by Ms. Liong bears the AMWSLAI letterhead with address at AMWSLAI Building corner Boni Serrano and 18th Avenues, Murphy, Cubao, Quezon City. On the other hand, AMWSLAI-COMELEC’s correspon-dence also used the same letterhead, with the same office address.
Also, even following public respondent’s theory that only the individuals constituting the AMWSLAI-COMELEC may be impleaded as party to the case, and jurisdiction on their persons may be acquired through service of summons upon them, the conclusion would still be the same. Per Sheriff’s Return[24], summonses to MGen. Rodolfo S. Estrellado, Col. Gregorio G. Paduganan and Lt. Col. Rolando G. Jungco were served thru substituted service, upon Ms. Liong. The public respondent however ruled that such substituted service was invalid because of the absence of a statement about impossibility of personal service. This is notwithstanding the submission by Sheriff Villar of a Supplemental Sheriff’s Report containing the specifics required. Nonetheless, relying heavily on Ms. Liong’s letter, the public respondent disregarded the supplemental report, branding it as mere afterthought.
The better part of wisdom should have prompted public respondent to give credence to the sheriff’s supplemental report. For one, contrary to public respondent’s position, the Supreme Court has already ruled in Mapa v. Court of Appeals[25] that the absence of a statement about impossibility of personal service does not invalidate the service, viz:
“It must nevertheless be emphasized that the absence in the sheriff’s return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid. Proof of prior attempts at personal service may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service. While the sheriff’s return carries with it the presumption, albeit disputable, of regularity in the sense that inter alia, the entries therein are deemed correct, it does not necessarily follow that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein. Besides, the sheriff’s neglect in making such a disclosure should not unduly prejudice the plaintiff if what was undisclosed was in fact done.” (Emphasis supplied)
For another, the unsubscribed letter of Ms. Liong, which parenthetically did not refute authority to receive the summonses for AMWSLAI and AMWSLAI-COMELEC, is not enough to overturn the presumption of regularity that the sheriff’s return enjoys. While a letter may be offered in evidence and admitted as such, its evidentiary weight depends upon the observance of the rules on evidence. The author of the letter should be presented as witness to provide the other party to the litigation the opportunity to question him on the contents of the letter. Being mere hearsay evidence, failure to present the author of the letter renders its contents suspect. It is a hearsay evidence that has no probative value whether objected to or not.[26]
Finally, the rules on summons certainly do not promote protracted and expensive service of summons. The Court can only imagine the sheriff’s herculian task of serving the summons should the number of the AMSLAI-COMELEC members be increased ten-fold. In litigations before the courts, the rules on service of summons and other legal processes are liberally construed so long as actual receipt and knowledge of the summons and process is shown.[27]
It cannot escape Our attention that shortly after receiving the summonses, the TRO and the Petition in behalf of private respondents, Ms. Liong returned said papers to the Clerk of Court, this time disavowing her authority to receive the same. On the following day, the election that the 72-hour Temporary Restraining Order (TRO) enjoined proceeded despite the fact that hearing on its extension was still going on. These clearly coordinated actions show not only expression of disrespect but ridicule to judicial processes. They were carried out purposely to defeat the 72-hour Temporary Restraining Order (TRO).
It is claimed that the elected officers have already taken their oath and assumed office. This will not however purge the election of its defect— that it was conducted in open defiance of the Temporary Restraining Order (TRO). An order from the court is entitled to respect. It would make a mockery of the judicial processes if private respondents would be allowed trample upon a lawful order of the court. In one case,[28] this Court has nullified the deeds of assignments executed by the parties in violation of the Temporary Restraining Order (TRO) and injunction issued by the SEC.
It must also be emphasized that the conduct of the election foreclosed petitioners’ right to assail their disqualification in the election protest. This is a clear violation of their right to due process. No rule is better established under the due process clause of the Constitution than that which requires the right to be heard before any person can be deprived of his rights.[29] Any act committed in violation of due process may be declared void. Thus, being the fruit of wrongful acts, the election must be invalidated.
A final note. It has been said that soldiers want peace, not war. Let it be similarly said here, courts desire legal tranquility not legal battles. Let it be further said that the instant case could have been avoided, if only the parties, and more importantly their respective counsels, acted like “officers and gentlemen”.
UPON THE PREMISES, the assailed Orders dated 14 October 2005 and 28 October 2005 of the Regional Trial Court of Pasay City, Branch 117 are ANNULLED and SET ASIDE. Accordingly, the election of the Board of Trustees of AMWSLAI held on 14 October 2005 is INVALIDATED and the result thereof declared NULL and VOID.
SO ORDERED.
Cosico, (Chairman) and Sundiam, JJ., concur.
[1] Rollo, pp. 89-92.
[2] Id., pp. 100-103.
[3] Id., pp. 64-71.
[4] Section 1, Article X, which reads:
SECTION 1. There shall be eleven (11) members of the Board of Trustees of the Association who shall hold office for a term of three (3) years, unless sooner removed from office for cause or has resigned or shall become incapacitated due to illness or death, or otherwise, until their successors shall have been duly (illegible) and qualified.
[5] Rollo, pp. 189-196.
[6] Col. Pelias (Ret.), Col. Hector Senosa (Ret.) and private respondent Col. Abad.
[7] Rollo, pp. 197-198.
[8] Rollo, pp. 40-44.
[9] Id., pp. 22-37.
[10] See letter to the BSP, Rollo, p. 63.
[11] Rollo, pp. 76-79.
[12] Id., pp. 80-81.
[13] Id., p. 104.
[14] Rollo, p. 93.
[15] Rollo, pp. 105-106.
[16] Rollo, pp. 94-99.
[17] Supra, at note 2.
[18] See Board Resolution No. 2005-353, Supra, at note 7.
[19] Ablaza v. Court of Industrial Relations, 126 SCRA 246, 254 (1983).
[20] Section 1 [a (3)] of the Interim Rules of Procedure for Intra-Corporate Controversies, which provides:
Section 1. (a) Cases covered. – These Rules shall govern the procedure to be observed in civil cases involving the following:
. . .
(3) Controversies in the election or appointment of directors, trustees, officers, or managers of corporations, partnerships, or associations.
[21] Tabang v. National Labor Relations Commission, 266 SCRA 463, 466 (1997).
[22] Supra, at note 14.
[23] Rollo, pp. 82-86.
[24] Supra, at note 13.
[25] 214 SCRA 417, 428-429 (1992).
[26] PNOC Shipping and Transport Corporation v. Court of Appeals, 297 SCRA 402, 421 (1998).
[27] Gesulgon v. National Labor Relations Commission, 219 SCRA 561, 570 (1993).
[28] CA-G.R. SP No. 18310, as affirmed by the Supreme Court in G.R. No. 96675 decided on 26 August 1991. Being its precursor, this case was cited in Ruby Industrial Corporation v. Court of Appeals, 284 SCRA 445, 451-452, 454 (1998).
[29] See Cebu Stevedoring Co.,Inc. v. Regional Director/Minister of Labor, 168 SCRA 315, 321 (1988).