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A.M. No.

88-1-646-0 March 3, 1988 RE: REQUEST OF THE PLAINTIFFS, HEIRS OF THE PASSENGERS OF THE DOA PAZ TO SET ASIDE THE ORDER DATED JANUARY 4, 1988 OF JUDGE B.D. CHINGCUANGCO. The Court deliberated on the letter-request of Atty. Pablito M. Rojas dated January 5, 1988, the comments thereon of Quezon City Executive Judge B.D. Chingcuangco and of counsel for Sulpicio Lines et al, and the reply to said comments. It appears that on January 4, 1988 a complaint for damages amounting to more than one and a half billion pesos was filed in the name and behalf of the relatives or heirs of the victims of "the worst sea disaster in history:" the sinking of the vessel Doa Paz caused by its collision with another vessel. The complaint characterized the action thereby instituted as a "lass suit",prosecuted by the twenty-seven (27) named plaintiffs in their behalf and in presentation of the approximately 4,000 persons . . . (who also) are all close relatives and legal heirs of the passengers of the Doa Paz" (par. 5). The action's character as a class suit results, it is claimed, from "the subject matter . . . (thereof being) of general or common interest to 4,000 persons, more or less, all of whom are residing variously in Samar, Leyte and Metro Manila;" and its institution is proper because the Identified plaintiffs are sufficiently numerous and representative to fully protect the interests of all" (par. 3). The complaint prayed that ... judgment be rendered in favor of the plaintiffs and all other persons embraced in this class suit, and against the defendants, ordering them to pay to the former, jointly and severally, as follows: a) From P200,000.00 to P400,000.00 per victim or passenger who perished in the sinking of the vessel DOA PAZ, by way of actual or compensatory, moral and exemplary damages, or the total amount of from P800,000,000.00 to Pl,200,000,000.00 (should be P1,600,000,000.00) for all of the 4,000 passengers on board said vessel; b) an amount which this Honorable Court may deem just and reasonable as and by way of attorney's fees and, under the circumstances of this case, P10,000,000.00 would be reasonable; xxx xxx xxx Together with the complaint, the plaintiffs filed a "MOTION FOR LEAVE TO FILE CASE AS PAUPER LITIGANT." They alleged that "a big majority ... (of them) are poor and have no sufficient means to finance the filing of this case especially because, considering the gargantuan amount of damages involved, the amount of filing fee alone will run to several thousands of pesos," that in view thereof and the fact that the case was one of "national concern as shown by the public outcry and sustained publicity that it has evoked,' the Court "may be justified in ... (allowing them) to file the instant suit as pauper litigants or, in the alternative, (ruling) that the legal fees incident to the filing of this case may constitute a lien on whatever judgment may be recovered by the plaintiffs therein." On the same day, their counsel submitted a certification of the City Assessor of Quezon City of even date to the effect "that according to the assessment records x x there is no property whether land or improvements registered for taxation purposes in the . . names of' seven (7) of the named plaintiffs.

By Order dated January 4, 1988, the motion was granted by Judge Chingcuangco in his capacity as Executive Judge only in so far as said seven (7) plaintiffs were concerned, but not as regards the case. It is this order that the plaintiffs, in their counsel's aforementioned letter of January 5, 1988, request this Court to set aside. They ask that they all instead be allowed to prosecute the case as pauper litigants and they be exempt from paying filing fees which they say have "been assessed in the amount of P6,060,252.50 based on the total maximum claim of P1,200,000,000.00 as per the complaint." In the comment (dated January 22, 1988) submitted by him in response to this Court's direction, Judge Chingcuangco declared that he had opted to leave the matter of the propriety of the class suit "to the sound judgment of the branch to which this case may be raffled," although he personally "would have freely allowed all plaintiffs to litigate as pauper litigants and close ... (his) eyes to the fact that one of them is the present Clerk of this Court and another regional trial court judge;"and that he had 'suggested to the plaintiffs' counsel to seek the assistance of the highest tribunal of the land with the fond hope that it may once again exercise its highly-regarded judicial activism by allowing that which this Executive Judge cannot do, that is, allow, in the highest interest of public service, all plaintiffs to litigate as pauper litigants, and consider the case as a class suit." The defendants, Sulpicio Lines, Inc., et al., in their own comment, point out that there were only 1,493 passengers on board the Doa Paz at the time of the tragedy, not 4,000; they have not been remiss in attending to the immediate needs and claims of the the legal basis for the claim and the amount of damages recoverable;"' it is doubtful whether 27 plaintiffs are sufficiently numerous and representative to fully protect the interests of all the suit preempts the other claimants' cause of action as to the amount of recovery and as to the venue of the suit; there are in truth only seven plaintiffs qualified to sue as pauper litigants; and the claimants not authorized to sue as paupers may continue with the action. In the first place, it is not the rule governing class suits under Section 12, Rule 3 of the Rules of Court that in truth is involved in the proceedings at bar, but that concerning permissive joinder of parties in Section 6 of the same Rule 3. 1 It is perhaps not inappropriate for the Court to avail of the opportunity that the proceeding at bar presents to point out the distinctions between the two rules, as these appear to have been missed by the petitioners and even by the Court a quo. The first cited provision reads as follows: SEC. 12. Class Suit. When the subject matter of his controversy is one of csurvivors and next of kin of the victims; each claimant is a class unto himself in terms of ommon or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. But in such case the court shall make sure that the parties actually before it are sufficiently numerous and representative so that all interests concerned are fully protected. Any party in interest shall have a right to intervene in protection of his individual interest. What is contemplated, as will be noted, is that (a) the subject matter in controversy is of common or general interest to many persons, and (b) those persons are so numerous as to

make it impracticable to bring them all before the court. Illustrative of the rule is a so-called derivative suit brought in behalf of numerous stockholders of a corporation to perpetually enjoin or nullify what is claimed to be a breach of trust or an ultra vires act of the 2 company's board of directors. In such a suit, there is one, single right of action pertaining to numerous stockholders, not multiple rights belonging separately to several, distinct persons. On the other hand, if there are many persons who have distinct, separate rights against the same party or group of parties, but those rights arise from the same transaction or series of transactions and there are common questions of fact or law resulting therefrom, the former may join as plaintiffs in one action against the same defendant. This is authorized by the above mentioned joinder-of- parties rule in Section 6 of Rule 3. SEC. 6. Permissive joinder of parties. All persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transaction is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put texpense in connection with any proceedings in which he may have no interests. For instance, it has been held that employees dismissed by their employer on the same occasion for substantially the same reasons, allegedly without cause or justification, may 3 join as plaintiff in a single action to obtain relief from their employer. In such a case, the plaintiff each have a material interest only in the damages properly due to him, not in those that may be payable to the others, although their rights thereto arise from the same transaction. In other words, there are as many rights of action as there are plaintiffs joined in the action. Similarly, the owner of a tract of land whose property has been illegally occupied by many persons claiming different portions thereof, may bring a single action against all illegal occupants thereof, in accordance with this rule of permissive joinder of 4 parties. The right of action is not unal but plural, there being as many rights asserted in the action as there are defendants, each defendant having an interest only in the portion of the land occupied by him. It is true that in both juridical situations, similar essential factors exist i.e., the same transaction or series of transactions is involved; and common questions of fact or law are at issue. What makes the situation a proper case for a class suit is the circumstance that there is only one right or cause of action pertaining or belonging in common to many persons, not separately or severally to distinct individuals. The "true" class action, which is the invention of equity, is one which involves the enforcement of a right which is joint, common, or secondary or derivative. ... (It) is a suit wherein, but for the class action device, the 5 joinder of all interested parties would be essential. A "true class actions" distinguished from the so-called hybrid and the spurious class action in U.S. Federal Practice-involves principles of compulsory joinder, since . . (were it not) for the numerosity of the class

members all should ... (be) before the court. Included within the true class suit ... (are) the shareholders' derivative suit and a class action by or against an unincorporated association. ... A judgment in a class suit, whether favorable or unfavorable to the class, is binding under res judicata principles upon all the members of the class, whether or not they were before the court. It is the non-divisible nature of the right sued on which determines both the membership of the class and the 6 res judicata effect of the final determination of the right. The object of the suit is to obtain relief for or against numerous persons as a group or as an integral entity, and not as separate, distinct individuals whose rights or liabilities are 7 separate from and independent of those affecting the others. An action instituted by several hundred members of a voluntary association against their officers to compel them to wind up the association's affairs and render an accounting of the 8 money and property in their possession has been held to be a class suit. In that case there was in truth only one single right of action sought to be enforced by the numerous plaintiff, 9 not separate, individual, distinct rights pertaining independently to them. On the other hand unlike an action by numerous stockholders (which is properly a class suit) to restrain an unauthorized act of a corporation's board of directors, e.g., to extend or shorten the corporate life or increase capital stock of incur bonded indebtedness without the specified majority vote prescribed by the Corporation Law, in which the right sought to be vindicated is single, common and general, not multiple and separate and distinct from 10 each other's an action by shareholders of a banking corporation, for example, to enforce their right to subscribe to stock left unsubscribed by other stockholders who failed to exercise their own right to do so on or before a stipulated date, was held not to be a class suit since each one of them 'had determinable interest; each one had a right, if any, only to his respective portion of the stocks (or a definite number of shares) ... and (no one) 11 of them had any right to, or any interest in, the stock to which another was entitled." So, too, an action for libel flied in behalf of 8,500 sugarcane planters has been held not to be a class suit since 'each of the plaintiffs has a separate and distinct reputation in the community ... (and) do not have a common or general interest in the subject matter of the 12 controversy. But in all these instances, and prescinding from pragmatic considerations, a permissive joinder of parties would have been perfectly proper in accordance with the 13 aforecited Section 6 of Rule 3 . The other factor that serves to distinguish the rule on class suits from that of permissive joinder of parties is, of course, the numerousness of parties involved in the former. The rule is that for a class suit to be allowed, it is needful inter alia that the parties be so numerous that it would be impracticable to bring them all before the court. The case at bar not being a proper one for a class suit, it follows that the action may not be maintained by a representative few in behalf of all the others. Be all this as it may, as regards the computation of the amount involved in the action for purposes of determining the original jurisdiction over it, and the correlative matter of the amount of filing fees to be paid, it is immaterial whether the rule applied be that on class suits or permissive joinder of parties. For in either case, it is the totality of the amounts claimed by or against the parties 14 that determines jurisdiction, exclusive only of interest and costs.

The second question-whether or not the numerous claimants, should they join as parties plaintiff, may be allowed to sue as pauper litigants, not because they are shown to be without means to maintain their suits, but on the ground of the alleged "national importance" of the subject matter, or upon an unverified averment that most of them are impecunious-yields another negative answer. The rule on the matter is clear. A party may be allowed to litigate in forma pauper is only. . upon a proper showing that he has no means to that effect by affidavits, certificate of the corresponding provincial, city or 15 municipal treasurer, or otherwise. Thus, every would be litigant who seeks exemption from the payment of the fees prescribed for maintaining an action must establish, not simply allege, his lack of means Where there is a multiplicity of such parties, each must show such lack, in propria persona as it were. And that the particular circumstances or possible consequences of an actual or contemplated suit are such as to transcend the narrow personal interests of the immediate parties thereto and to so impinge upon the wider interests of the people at large as to assume an aspect of "national importance," does not under any existing law or rule justify excusing such parties from paying the requisite judicial fees or costs. It should moreover be quite obvious that the denial of the privilege to prosecute as paupers litigant to those who do not qualify as such cannot in any sense be deemed a denial of free 16 access to the courts by reason of poverty, as counsel for the plaintiffs suggests. Everyone and the members of the Court are no exception deplores that tragedy that claimed so many unsuspecting victims in what has been described, to repeat, as 'the worst single -disaster' in maritime history. Everyone condoles and symphatizes with those whom the victims, both known and unknown, left behind, many of whom were denied even the small consolation of being able to bury their dead. Everyone undoubtedly hopes and wishes that these survivors may quickly obtain adequate recompense for the untimely loss of their loved ones. But sympathy and commiseration however-well-deserved, are not considerations that would justifiably argue for bending or dispensing with the observance of the rules which prescribe now such vindication may be obtained in the courts of law. WHEREFORE, the order complained of being in accordance with law, the solicitation to set aside the same, and to be exempted from observance of the rule on paupers litigant, is DENIED. The authority to litigate in the form of a class action is likewise DENIED.