D
E C I S I O N
CALLEJO,
SR., J.:
In a
Letter dated July 18 and 26, 1990, then Secretary of the Department of
Tourism and Chairman of the Board of Directors of the Philippine
Tourism Authority (PTA) petitioner Peter D. Garrucho requested then
Commissioner of Immigration and Deportation Andrea Domingo to issue
Hold Departure Orders against Ramon Binamira and Faustino
Roberto. This was in connection with the investigation being
conducted by the Department of Justice involving anomalous transactions
in government securities affecting the PTA which entailed the loss of
some P161,000,000.00. Commissioner Domingo granted the request
and issued Hold Departure Order Nos. 333 and 334 against Binamira and
Roberto on the said date. Roberto requested the lifting of the
order, and Secretary Garrucho opposed the same in a Letter dated August
22, 1990.
Roberto
then filed a complaint for prohibition and damages against petitioner
Garrucho and Commissioner Domingo in the Regional Trial Court (RTC) of
Makati City. Binamira, for his part, filed a
complaint-in-intervention in the case. Petitioner Garrucho was
represented by private practitioners Remollo & Associates, whose
offices were located at Suite No. 23, Legaspi Suites, 178 Salcedo
Street, Legaspi Village, Makati City.
On
April 16, 1997, the trial court rendered judgment in favor of
respondent Binamira. The fallo of the decision reads:
WHEREFORE,
premises considered, judgment is hereby rendered in favor of plaintiff
and against the defendants, and the latter are hereby ordered to,
jointly and severally, pay the following:
1.
The amount of P100,000.00 as actual and compensatory damages;
2.
The amount of P1 million as moral damages;
3.
The amount of P500,000.00 as exemplary damages;
4.
The amount of P20,000.00 as attorney’s fees;
5.
Plus cost of suit.
Further,
Hold Departure Order No. 333 having been found to be void ab initio,
unconstitutional and illegal, the preliminary injunction is hereby
declared permanent.
SO
ORDERED.[1]
The
petitioner and Commissioner Domingo appealed the decision to the Court
of Appeals (CA). On March 9, 1999, the CA sent a notice by
registered mail to the petitioner’s counsel directing the latter to
file his brief as appellant. However, the notice was returned to
the court. The envelope containing the said notice was stamped,
thus: “Return To Sender, Moved Out.”[2] The CA resent the notice dated
March 5, 1999 to the petitioner at his office at the Department of
Tourism building, Agripino Circle, Manila. The notice was
returned to the CA on May 5, 1999, again, having been “unclaimed.” The
CA issued a minute resolution[3] on June 23, 1999, declaring that the
service of notice on the petitioner was complete as of May 5,
1999. A copy of the said resolution was sent by registered mail
to the petitioner in the Department of Tourism.
On
November 26, 1999, the appellate court issued a Resolution[4]
dismissing the appeal of the petitioner for his failure to file his
brief. A copy of the resolution was sent by registered mail to
the petitioner’s counsel, but the said resolution was returned to the
court with a notation stamped on the envelope “Return To Sender, Moved
Out.”[5] The CA then had a separate copy of the notice served by
registered mail on the petitioner at his office address, but the same
was returned to the CA with the notation “Unclaimed.”
The
appellate court issued an entry of judgment.[6] A copy of the said
entry of judgment was sent to the petitioner by registered mail at the
Department of Tourism. Thus, the appeal of Commissioner Domingo
was considered submitted for decision after filing her brief and the
filing by the plaintiff-appellee of his brief.
Binamira’s
motion for a writ of execution against the petitioner was granted by
the trial court on June 22, 2000. The trial court issued a writ
of execution on June 28, 2000. The sheriff served a copy of the
said writ on the petitioner on July 12 and 17, 2000, at his office at
the Benpress Building, Pasig City.
The
petitioner filed a petition for certiorari under Rule 65 of the Rules
of Court against the CA, the RTC, Sheriff Flora and Binamira, for the
nullification of the CA resolutions dated June 23, 1999 and November
26, 1999, the June 22, 2000 Order of the RTC, as well as the June 28,
2000 writ of execution issued by the latter court.
The
petitioner alleged, inter alia, that the CA and RTC erred in issuing
the assailed resolutions and order because he never received copies of
the assailed CA resolutions which were sent to him at his former office
at the Department of Tourism. He averred that he had resigned as
Secretary of the Department of Tourism and Chairman of the PTA as early
as January 9, 1991[7] and was no longer holding office thereat.[8]
Since then, he had gone back to the private sector and held office at
417 Benpress Building, Meralco Avenue corner Echague Road, Ortigas
Center, Pasig City. His counsel failed to receive his copy of the
CA resolution because he transferred his office at Suite No. 23,
Legaspi Suites, 178 Salcedo Street, Legaspi Village, Makati City, and
his residence to Dumaguete City, Negros Occidental. He further
alleged that the CA and the RTC were obliged to take judicial notice of
his resignation as Tourism Secretary and the appointment of his
successor, his appointment as Executive Secretary by President Fidel E.
Ramos in July 1992, and his resignation from the said position in
August/September 1992.
The
petitioner argues that he was deprived of his right to due process when
the CA and the RTC failed to serve the copies of the assailed
resolutions and order. He points out that his present office was
not difficult to locate, considering his stature in business and
politics in the country. He avers that there was no reason why
the copies of the assailed resolutions and order could not be sent to
him at the same office since the sheriff was able to locate his office
on July 12 and 17, 2000.
In his
comment on the petition, the private respondent alleged that the
petitioner was mandated to inform his counsel of his present address
after he (the petitioner) resigned as Secretary of the Department of
Tourism. It was also the duty of the petitioner’s counsel to
inform the trial court of his new office address. The private
respondent asserts that the petitioner must suffer the dire
consequences of his and his counsel’s inexcusable negligence.
The
respondent further contends that while the CA and the RTC were mandated
to take judicial notice of the petitioner’s resignation and the
appointment of his successor, they were not mandated to take judicial
notice of the petitioner’s office address after he resigned from the
government, or of the address of his counsel in Dumaguete City, Negros
Occidental. The respondent asserts that such failure of the
petitioner to inform the said courts of his address and that of his
counsel constitutes inexcusable neglect. Thus, if the
petitioner’s appeal was dismissed on account of his failure to file his
brief, he has nobody but himself to blame.
The
petition has no merit.
The
contention of the petitioner that he was deprived of his right to due
process when the CA dismissed his appeal because of his failure to file
his brief as appellant therein has no factual and legal basis.
The
records show that the counsel of the petitioner in the trial court was
the law firm of Remollo & Associates with offices at Suite No. 23,
Legaspi Suites, 178 Salcedo Street, Legaspi Village, Makati City.
Under Section 2, Rule 44 of the 1997 Rules of Civil Procedure, the
counsel of the parties in the court of origin shall be considered as
their counsel in the CA.[9]
Section
2, Rule 13 of the Rules of Civil Procedure provides that if any party
has appeared by counsel, service upon him shall be made upon his
counsel unless served upon the party himself is ordered by the trial
court.[10] Notice or service made upon a party who is represented by
counsel is a nullity.[11] Notice to the client and not to his counsel
of record is not notice in law.[12] The rule admits of exceptions, as
when the court or tribunal orders service upon a party or when the
tribunal defendant is waived.[13]
In the
absence of a proper and adequate notice to the court of a change of
address, the service of the order or resolution of a court upon the
parties must be made at the last address of their counsel on
record.[14] It is the duty of the party and his counsel to device a
system for the receipt of mail intended for them, just as it is the
duty of the counsel to inform the court officially of a change in his
address. It is also the responsibility of a party to inform the
court of the change of his address so that in the event the court
orders that an order or resolution be served on the said party to
enable him to receive the said resolution or order.[15]
In the
present case, the law firm of Remollo & Associates, the
petitioner’s counsel of record, moved out from their office at the
Legaspi Suites to Dumaguete City without informing the court of such
fact. Based on its records, the CA believed that the law office
of the petitioner’s counsel was still at the Legaspi Suites and sent
copies of its resolutions to the counsel of the petitioner at the said
address.
Neither
did the petitioner inform the court of his home or office address after
his resignation as Secretary of the Department of Tourism where copies
of the said order or resolution could be sent. Notwithstanding
his stature in the business community, the CA cannot take judicial
notice of the petitioner’s home address or his office address after his
departure as Secretary of the Department of Tourism or as Executive
Secretary of the President.
Indeed,
the petitioner has nobody but himself to blame. It was his
responsibility to check the status of his appeal in the CA from time to
time, from his counsel or from the CA. He failed to do so.
As we held in Bernardo vs. Court of Appeals:[16]
Litigants,
represented by counsel, should not expect that all they need to do is
sit back, relax and await the outcome of their case. They should
give the necessary assistance to their counsel for what is at stake is
their interest in the case.
In his
concurring opinion in Republic vs. Sandiganbayan, Mr. Justice Teodoro
R. Padilla emphasized the value and significance of the party’s
presence and diligence in the advancement of his cause, thus:
xxx An
almost lifetime of experience in litigation is the best witness to the
indispensability of party’s presence (aside from his lawyer, in case he
has the assistance of counsel) in order to litigate with any reasonable
opportunity of success. xxx especially during the
cross-examination of adverse party’s witnesses – where the truth must
be determined – every counsel worth his salt must have the assistance
and presence of his client on the spot, for the client invariably knows
the facts far better than his counsel. In short, even in civil
cases, the presence of party (as distinguished from his lawyer alone)
is essential to due process.
True
enough, the party-litigant should not rely totally on his counsel to
litigate his case even if the latter expressly assures that the
former’s presence in court will no longer be needed. No prudent
party will leave the fate of his case entirely to his lawyer.
Absence in one or two hearings may be negligible but want of inquiry or
update on the status of his case for several months (four, in this
case) is inexcusable. It is the duty of a party-litigant to be in
contact with his counsel from time to time in order to be informed of
the progress of his case. Petitioner simply claims that he was
busy with his gravel and sand and trading businesses which involved
frequent traveling from Manila to outlying provinces. But this
was not a justifiable excuse for him to fail to ask about the
developments in his case or to ask somebody to make the query for him.
Petitioner failed to act with prudence and diligence; hence, his plea
that he was not accorded the right to due process cannot elicit this
Court’s approval or even sympathy.[17]
IN LIGHT OF ALL THE FOREGOING, the
Petition is DENIED for lack of
merit.
SO
ORDERED.
Puno,
J., (Chairman),
Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
[1]
Rollo, p. 29.
[2]
Id. at 63.
[3]
Id. at 23.
[4]
Id. at 24.
[5]
Id. at 25.
[6]
Id. at 26.
[7]
Id. at 66.
[8]
Id. at 67.
[9]
Sec. 2. Counsel and guardians. – The counsel and guardians ad
litem of the parties in the court of origin shall be respectively
considered as their counsel and guardians ad litem in the Court of
Appeals. When others appear or are appointed, notice thereof
shall be served immediately on the adverse party and filed with the
court.
[10]
Sec. 2. Filing and service, defined. – Filing is the act of
presenting the pleading or other paper to the clerk of court.
Service
is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him
shall be made upon his counsel or one of them, unless service upon the
party himself is ordered by the court. Where one counsel appears
for several parties, he shall only be entitled to one copy of any paper
served upon him by the opposite side.
[11]
Tak vs. Makasiar, 350 SCRA 475 (2001).
[12]
De Leon vs. Court of Appeals, 383 SCRA 216 (2002).
[13]
Philippine National Bank vs. Court of Appeals, 246 SCRA 304 (1995).
[14]
Thermochem Incorporated vs. Naval, 344 SCRA 76 (2000).
[15]
Rivera vs. Litam & Company, Inc., 4 SCRA 1072 (1962).
[16]
275 SCRA 413 (1997).
[17]
Id. at 429-430.
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