"x x x.
The Court’s Ruling
The basic question is whether the constitutional right to procedural due process was properly observed or was unacceptably violated in this case when the respondents were declared in default for failing to file their answer within the prescribed period and when the petitioners were allowed to present their evidence ex-parte.
Section 1, Article III of the 1987 Constitution guarantees that:
No person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied the equal protection of the law.
Procedural due process is that which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. It contemplates notice and opportunity to be heard before judgment is rendered affecting one's person or property.
Moreover, pursuant to the provisions of Section 5(5) of Article VIII of the 1987 Constitution, the Court adopted and promulgated the following rules concerning, among others, the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts:
SEC. 5. Modes of service.—Service of pleadings, motions, notices, orders, judgments and other papers shall be made either personally or by mail.
SEC. 6. Personal service.—Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein.
SEC. 7. Service by mail.—Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail.
SEC. 8. Substituted service.—If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery.
The above rules, thus, prescribe the modes of service of pleadings, motions, notices, orders, judgments, and other papers, namely: (1) personal service; (2) service by mail; and (3) substituted service, in case service cannot be effected either personally or by mail.
The Rules of Court has been laid down to insure the orderly conduct of litigation and to protect the substantive rights of all party litigants. It is for this reason that the basic rules on the modes of service provided under Rule 13 of the Rules of Court have been made mandatory and, hence, should be strictly followed. In Marcelino Domingo v. Court of Appeals,  the Court wrote:
Section 11, Rule 13 of the Rules of Court states:
SEC. 11. Priorities in modes of service and filing. — Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.
Section 11 is mandatory. In Solar Team Entertainment, Inc. v. Judge Ricafort, the Court held that:
Pursuant x x x to Section 11 of Rule 13, service and filing of pleadings and other papers must, whenever practicable, be done personally; and if made through other modes, the party concerned must provide a written explanation as to why the service or filing was not done personally. x x x
Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action or resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail, considering the inefficiency of postal service. Likewise, personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that the registered parcel containing the pleading of or other paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such pleading or other papers.
If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to consider a pleading or paper as not filed if the other modes of service or filing were resorted to and no written explanation was made as to why personal service was not done in the first place. The exercise of discretion must, necessarily, consider the practicability of personal service, for Section 11 itself begins with the clause "whenever practicable."
We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11. This Court cannot rule otherwise, lest we allow circumvention of the innovation introduced by the 1997 Rules in order to obviate delay in the administration of justice.
x x x x
x x x [F]or the guidance of the Bench and Bar, strictest compliance with Section 11 of Rule 13 is mandated. [Emphasis supplied]
In the case at bench, the respondents were completely deprived of due process when they were declared in default based on a defective mode of service – service of notice to file answer by publication. The rules on service of pleadings, motions, notices, orders, judgments, and other papers were not strictly followed in declaring the respondents in default. The Court agrees with the CA that the RTC committed procedural lapses in declaring the respondents in default and in allowing the petitioners to present evidence ex-parte.
A review of the records discloses that after the Court rendered its April 15, 1988 Decision in G.R. No. 69866, annulling the RTC orders dated November 8, 1983, May 11, 1984 and September 21, 1984 and ordering the remand of the case to the RTC for further proceedings, the RTC issued an order dated August 17, 1990 directing the petitioners to report the addresses and whereabouts of the respondents so that they would be properly notified of the proceedings. This directive was issued by the RTC considering that the respondents’ counsel of record, the OSG, could no longer represent them and because the respondents were no longer holding official government positions because of a change in government brought about by the 1986 EDSA Revolution. This order was likewise made in response to the motion filed by the petitioners praying that the respondents be required to file their answer.
Instead of complying with the RTC’s directive to report the respondents’ addresses and whereabouts, the petitioners filed a motiondated
September 4, 1990 to declare the respondents in default. On December 27, 1990, the RTC denied the petitioners’ default motion because the respondents were not duly notified of the April 15, 1988 Decision of this Court and the OSG no longer wanted to represent them. The RTC likewise ordered the petitioners to comply with its August 17, 1990 Order, otherwise, the case would be archived and eventually dismissed. On February 1, 1991, the RTC denied the petitioners’ motion for reconsideration and on March 7, 1991, it issued an order dismissing the case without prejudice.
June 4, 1991, the RTC issued an order setting aside its March 7, 1991 Order and reinstating the case. It directed the petitioners, among others, to cause the publication of a notice on the respondents to file answer or responsive pleading. After the petitioners complied with the publication requirements, the RTC issued the order dated December 5, 1991 declaring the respondents in default and directing the petitioners to present evidence ex-parte.
As correctly observed by the CA, the RTC’s
August 17, 1990 Order was an attempt to serve a notice to file answer on the respondents by personal service and/or by mail. These proper and preferred modes of service, however, were never resorted to because the OSG abandoned them when the petitioners failed to comply with the August 17, 1990 RTC order requiring them to report the addresses and whereabouts of the respondents. Nevertheless, there was still another less preferred but proper mode of service available – substituted service - which is service made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. Unfortunately, this substitute mode of service was not resorted to by the RTC after it failed to effect personal service and service by mail. Instead, the RTC authorized an unrecognized mode of service under the Rules, which was service of notice to file answer by publication.
Considering the fact that the OSG could no longer represent the respondents, the RTC should have been more patient in notifying the respondents through personal service and/or service by mail. It should not have simply abandoned the preferred modes of service when the petitioners failed to comply with its
August 17, 1990 order with the correct addresses of the respondents. More so, it should not have skipped the substituted service prescribed under the Rules and authorized a service of notice on the respondents to file answer by publication.
In view of the peculiar circumstances surrounding the case, the RTC should have instead directed the petitioners to exert diligent efforts to notify the respondents either personally or by registered mail. In case the preferred modes were impractical, the Court should have required the petitioners to at least report in writing why efforts exerted towards personal service or service by mail failed. In other words, a convincing proof of an impossibility of personal service or service by mail to the respondents should have been shown first. The RTC, thus, erred when it ruled that the publication of a notice to file answer to the respondents substantially cured the procedural defect equivalent to lack of due process. The RTC cannot just abandon the basic requirement of personal service and/or service by mail.
At any rate, the Court is of the view that personal service to the respondents was practicable under the circumstances considering that they were well-known persons who used to occupy high government positions.
To stress, the only modes of service of pleadings, motions, notices, orders, judgments and other papers allowed by the rules are personal service, service by mail and substituted service if either personal service or service by mail cannot be made, as stated in Sections 6, 7 and 8 of Rule 13 of the Rules of Court. Nowhere under this rule is service of notice to file answer by publication is mentioned, much less recognized.
Furthermore, the Court would like to point out that service by publication only applies to service of summons stated under Rule 14 of the Rules of Court where the methods of service of summons in civil cases are: (1) personal service; (2) substituted service; and (3) service by publication. Similarly, service by publication can apply to judgments, final orders and resolutions as provided under Section 9, Rule 13 of the Rules of Court, as follows:
SEC. 9. Service of judgments, final orders or resolutions. –Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. [Emphasis supplied]
As correctly ruled by the CA:
Its third error was when it authorized service by publication after initially dismissing the case for failure of plaintiffs-appellees to furnish the current address of defendants-appellants. There is, however, nothing in the Rules that authorizes publication of a notice of hearing to file answer. What is authorized to be published are: (1) summons, and (2) final orders and judgments.
Xxx xxx xxx
The above-quoted provision cannot be used to justify the trial court’s action in authorizing service by publication. Firstly, what was published was not a final order or judgment but a simple order or notice to file answer. Secondly, even granting that the notice to file answer can be served by publication, it is explicit in the Rule that publication is allowed only if the defendant-appellant was summoned by publication. The record is clear that defendants-appellants were not summoned by publication.
On this point, the petitioners argue that the publication was a valid and justified procedure because following the ruling of the RTC, it was “an extra step to safeguard the interest of the defendants done pursuant to the inherent power of the courts to control its proceedings to make them comfortable to law and justice.” The petitioners further argue that “the defendants in a civil case cannot seize control of the proceedings or cause them to be suspended indefinitely by the simple expedient of not filing their answers or by feigning ignorance of the proceedings. All these could have been avoided had the defendants not been so inexplicably complacent and utterly lacking in ordinary prudence.”
The Court is not convinced.
As already discussed above, the basic rules on modes of service of pleadings, motions, notices, orders, judgments, and other papers are mandatory in nature and, therefore, must be strictly observed. The Court is not unaware of the inherent power of courts to control its proceedings. Nonetheless, the exercise of such inherent power must not violate basic court procedures. More importantly, it must not disregard one’s basic constitutional right to procedural due process.
This was precisely the reason for the RTC’s denial of the petitioner’s default motion in its
August 17, 1990 Order, and for the eventual dismissal of the case in its December 27, 1990 Order.
It must be noted that as the RTC orders stated, the respondents were not notified of the
April 15, 1988 Decision of this Court, which ordered the re-opening and remanding of this case to the RTC. They were neither notified of the reconstitution proceedings that took place pertaining to the burned records of the case. The RTC further stated that the respondents were no longer holding their official government positions and that they were no longer represented by the OSG on account of the change in government. In other words, the respondents had no counsel of record and no notice of subsequent proceedings. In short, due process was absent.
x x x."
ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO,
NOEL ETABAG, DANILO DELA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN,
ALAN JASMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO,
JOSEPH OLAYER, CARLOS
ROLANDO SALUTIN BENJAMIN SEGUNDO, ARTURO TABARA, EDWIN TULALIAN, and
- versus -
MAJ. GEN. FABIAN VER,
COL. FIDEL SINGSON,
COL. GERARDO B. LANTORIA, COL. ROLANDO ABADILLA,
COL. GALILEO KINTANAR,
LT. COL. PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO,
1LT. PEDRO TANGO,
1LT. ROMEO RICARDO,
1LT. RAUL BACALSO,
M/SGT. BIENVENIDO BALABA
and “JOHN DOES,”
G.R. No. 166216
VELASCO, JR., J., Chairperson,
March 14, 2012