BANK OF AMERICA vs AMERICAN

REALTY
FACTS:
> Petitioner Bank of America NT & SA
(BANTSA) is an international banking
and financing institution duly licensed to
do business in the Philippines,
organized and existing under and by
virtue of the laws of the State of
California, United States of America
while private respondent American
Realty Corporation (ARC) is a domestic
corporation.
> Bank of America International Limited
(BAIL), on the other hand, is a limited
liability company organized and existing
under the laws of England.
> BANTSA and BAIL on several
occasions granted three major multimillion United States (US) Dollar loans
to the following corporate borrowers: (1)
Liberian Transport Navigation, S.A.; (2)
El Challenger S.A. and (3) Eshley
Compania Naviera S.A. (hereinafter
collectively referred to as borrowers), all
of which are existing under and by virtue
of the laws of the Republic of Panama
and are foreign affiliates of private
respondent.
> Due to the default in the payment of
the loan amortizations, BANTSA and the
corporate borrowers signed and entered
into restructuring agreements. As
additional security for the restructured
loans, private respondent ARC as third
party mortgagor executed two real
estate mortgages over its parcels of land
including improvements thereon.
> Eventually, the corporate borrowers
defaulted in the payment of the
restructured loans prompting petitioner
BANTSA to file civil actions before
foreign courts for the collection of the
principal loan.
> In the civil suits instituted before the
foreign courts, private respondent ARC,
being a third party mortgagor, was not
impleaded as party-defendant.
> Petitioner BANTSA filed before the
Office of the Provincial Sheriff of

Bulacan, Philippines, an application for

extrajudicial foreclosure of real estate
mortgage.
> After due publication and notice, the
mortgaged real properties were sold at
public auction in an extrajudicial
foreclosure sale.
> Private respondent filed before the
RTC an action for damages against the
petitioner, for the latters act of
foreclosing extrajudicially the real estate
mortgages despite the pendency of civil
suits before foreign courts for the
collection of the principal loan.
> Petitioner alleged that the rule
prohibiting
the
mortgagee
from
foreclosing the mortgage after an
ordinary suit for collection has been
filed, is not applicable in the present
case, claiming that:
a) The plaintiff, being a mere third party
mortgagor and not a party to the
principal restructuring agreements, was
never made a party defendant in the civil
cases filed in Hongkong and England;
b) There is actually no civil suit for sum
of money filed in the Philippines since
the civil actions were filed in Hongkong
and England.
> Lower court rendered a decision in
favor of private respondent ARC and
affirmed by CA.

ISSUE:
Whether or not the petitioners act
of filing a collection suit against the
principal debtors for the recovery of the
loan before foreign courts constituted a
waiver of the remedy of foreclosure?

RULING:
YES. First, as to the issue of
availability of remedies, petitioner
submits that a waiver of the remedy of
foreclosure requires the concurrence of
1

two requisites: an ordinary civil action for

collection
should
be
filed
and
subsequently a final judgment be
correspondingly rendered therein.

interest by simply filing civil actions for

sums of money.

In the absence of express statutory

provisions, a mortgage creditor may
institute against the mortgage debtor
either a personal action for debt or a real
action to foreclose the mortgage. In
other words, he may pursue either of the
two remedies, but not both. By such
election, his cause of action can by no
means be impaired, for each of the two
remedies is complete in itself.

This argument shows desperation on

the part of petitioner to rivet its
crumbling cause. In the case at bench,
Philippine
law
shall
apply
notwithstanding the evidence presented
by petitioner to prove the English law on
the matter.
In a long line of decisions, this Court
adopted the well-imbedded principle in
our jurisdiction that there is no judicial
notice of any foreign law. A foreign law
must be properly pleaded and proved as
a fact. Thus, if the foreign law involved is
not properly pleaded and proved, our
courts will presume that the foreign law
is the same as our local or domestic or
internal law. This is what we refer to as
the doctrine of processual presumption.

Accordingly, applying the foregoing

rules, we hold that petitioner, by the
expediency of filing four civil suits before
foreign courts, necessarily abandoned
the remedy to foreclose the real estate
mortgages
constituted
over
the
properties of third-party mortgagor and
herein
private
respondent
ARC.
Moreover, by filing the four civil actions
and
by
eventually
foreclosing
extrajudicially the mortgages, petitioner
in effect transgressed the rules against
splitting a cause of action well-enshrined
in jurisprudence and our statute books.
Notably, it is not the nature of the
redress which is crucial but the efficacy
of the remedy chosen in addressing the
creditors cause. Hence, a suit brought
before
a
foreign
court
having
competence and jurisdiction to entertain
the action is deemed, for this purpose,
to be within the contemplation of the
remedy available to the mortgageecreditor. This pronouncement would
best serve the interest of justice and fair
play and further discourage the noxious
practice of splitting up a lone cause of
action.
Incidentally, BANTSA alleges that under
English Law, which according to
petitioner is the governing law with
regard to the principal agreements, the
mortgagee does not lose its security

We rule in the negative.

Thus, when the foreign law, judgment or

contract is contrary to a sound and
established public policy of the forum,
the said foreign law, judgment or order
shall not be applied.
Additionally, prohibitive laws concerning
persons, their acts or property, and
those which have for their object public
order, public policy and good customs
shall not be rendered ineffective by laws
or judgments promulgated, or by
determinations or conventions agreed
upon in a foreign country.
The public policy sought to be protected
in the instant case is the principle
imbedded in our jurisdiction proscribing
the splitting up of a single cause of
action.
Moreover, foreign law should not be
applied when its application would work
undeniable injustice to the citizens or
residents of the forum. To give justice is
the most important function of law;
hence, a law, or judgment or contract
that is obviously unjust negates the
2

fundamental principles of Conflict of

Laws.
Clearly then, English Law is not
applicable.

SAUDI ARABIAN AIRLINES vs CA

FACTS:
> Defendant SAUDIA hired plaintiff as a
Flight Attendant for its airlines based in
Jeddah, Saudi Arabia.
> while on a lay-over in Jakarta,
Indonesia, plaintiff went to a disco dance
with fellow crew members (Thamer and
Allah) both Saudi nationals. The other
attempted to rape plaintiff. Fortunately, a
roomboy and several security personnel
heard her cries for help and rescued
her. Later, the Indonesian police came
and arrested both the Saudi Nationals.
> A negotiation with the police for the
release of Thamer and Allah but was not
succeeded for she refused cooperate.
> She was brought many times to Saudi
Arabia, faced the court knowing that it
would be necessary for the case.
> When plaintiff returned to Manila, she
was again summoned to go back to
Saudi Arabia explaining the investigation
was routinary and will pose no danger to
her.
> After one hour of interrogation, they let
her go. At the airport, however, just as
her plane was about to take off, a
SAUDIA officer told her that the airline
had forbidden her to take flight. Took
away her passport and told her to
remain in Jeddah, at the crew quarters,
until further orders.
> SAUDIA legal officer again escorted
plaintiff to the same court where the
judge, to her astonishment and shock,
rendered a decision, translated to her in
English, sentencing her to five months
imprisonment and to 286 lashes. Only
then did she realize that the Saudi court
had tried her, together with Thamer and
Allah, for what happened in Jakarta. The
court found plaintiff guilty of (1) adultery;
(2) going to a disco, dancing and
listening to the music in violation of
Islamic laws; and (3) socializing with the
male crew, in contravention of Islamic
tradition.
> Facing conviction, private respondent
sought the help of her employer,
3

petitioner SAUDIA. Unfortunately, she

was denied any assistance.
> Because she was wrongfully
convicted, the Prince of Makkah
dismissed the case against her and
allowed her to leave Saudi Arabia.
Shortly before her return to Manila,she
was terminated from the service by
SAUDIA, without her being informed of
the cause.
> Milagros Morada filed a Complaint for
damages against SAUDI SAUDI filed
an Motion to Dismiss but was denied by
the Respondent Judge.
> SAUDI alleged that the trial court has
no jurisdiction to hear and try the case
on the basis of Article 21 of the Civil
Code, since the proper law applicable is
the law of the Kingdom of Saudi Arabia.

ISSUE:
Whether or not trial court has
jurisdiction to hear and try the case
based on Article 21 of the New Civil
Code since the proper law applicable is
the law of the Kingdom of Saudi Arabia
inasmuch as this case involves what is
known in private international law as a
conflicts problem?

RULING:
YES.
Under
the
factual
antecedents obtaining in this case, there
is no dispute that the interplay of events
occurred in two states, the Philippines
and Saudi Arabia.
Where
the
factual
antecedents
satisfactorily establish the existence of a
foreign element, we agree with petitioner
that the problem herein could present a
conflicts case.
A factual situation that cuts across
territorial lines and is affected by the
diverse laws of two or more states is
said to contain a foreign element. The
presence of a foreign element is

inevitable since social and economic

affairs of individuals and associations
are rarely confined to the geographic
limits of their birth or conception.
In the instant case, the foreign element
consisted in the fact that private
respondent Morada is a resident
Philippine national, and that petitioner
SAUDIA
is
a
resident
foreign
corporation. Also, by virtue of the
employment of Morada with the
petitioner Saudia as a flight stewardess,
events did transpire during her many
occasions of travel across national
borders, particularly from Manila,
Philippines to Jeddah, Saudi Arabia, and
vice versa, that caused a conflicts
situation to arise.
We thus find private respondents
assertion that the case is purely
domestic, imprecise. A conflicts problem
presents itself here, and the question of
jurisdiction confronts the court a quo.
After a careful study of the private
respondents Amended Complaint, and
the Comment thereon, we note that she
aptly predicated her cause of action on
Articles 19 and 21 of the New Civil
Code.
On one hand, Article 19 of the New Civil
Code provides;
Art. 19. Every person must, in the
exercise of his rights and in the
performance of his duties, act with
justice give everyone his due and
observe honesty and good faith.
On the other hand, Article 21 of the New
Civil Code provides:
Art. 21. Any person who willfully
causes loss or injury to another in
a manner that is contrary to
morals, good customs or public
policy shall compensate the latter
for damages.
4

Although Article 19 merely declares a

principle of law, Article 21 gives flesh to
its provisions. Thus, we agree with
private respondents assertion that
violations of Articles 19 and 21 are
actionable, with judicially enforceable
remedies in the municipal forum.

Similarly, the trial court also possesses

jurisdiction over the persons of the
parties herein. By filing her Complaint
and Amended Complaint with the trial
court, private respondent has voluntary
submitted herself to the jurisdiction of
the court.

Based on the allegations in the

Amended Complaint, read in the light of
the Rules of Court on jurisdiction we find
that the Regional Trial Court (RTC) of
Quezon City possesses jurisdiction over
the subject matter of the suit.

The records show that petitioner

SAUDIA has filed several motions
praying for the dismissal of Moradas
Amended Complaint. What is very
patent and explicit from the motions
filed, is that SAUDIA prayed for other
reliefs under the premises. Undeniably,
petitioner SAUDIA has effectively
submitted to the trial courts jurisdiction
by praying for the dismissal of the
Amended Complaint on grounds other
than lack of jurisdiction.

Pragmatic considerations, including the

convenience of the parties, also weigh
heavily in favor of the RTC Quezon City
assuming jurisdiction. Paramount is the
private
interest
of
the
litigant.
Enforceability of a judgment if one is
obtained is quite obvious. Relative
advantages and obstacles to a fair trial
are equally important. Plaintiff may not,
by choice of an inconvenient forum, vex,
harass, or oppress the defendant, e.g.
by inflicting upon him needless expense
or disturbance. But unless the balance is
strongly in favor of the defendant, the
plaintiffs choice of forum should rarely
be disturbed.
Weighing the relative claims of the
parties, the court a quo found it best to
hear the case in the Philippines. Had it
refused to take cognizance of the case,
it would be forcing plaintiff (private
respondent now) to seek remedial action
elsewhere, i.e. in the Kingdom of Saudi
Arabia where she no longer maintains
substantial connections. That would
have caused a fundamental unfairness
to her.
Moreover, by hearing the case in the
Philippines no unnecessary difficulties
and inconvenience have been shown by
either of the parties. The choice of forum
of the plaintiff (now private respondent)
should be upheld.

Clearly, petitioner had submitted to the

jurisdiction of the Regional Trial Court of
Quezon City. Thus, we find that the trial
court has jurisdiction over the case and
that its exercise thereof, justified.
As to the choice of applicable law, we
note that choice-of-law problems seek to
answer two important questions: (1)
What legal system should control a
given situation where some of the
significant facts occurred in two or more
states; and (2) to what extent should the
chosen legal system regulate the
situation.
Before a choice can be made, it is
necessary for us to determine under
what category a certain set of facts or
rules fall. This process is known as
characterization, or the doctrine of
qualification. It is the process of deciding
whether or not the facts relate to the
kind of question specified in a conflicts
rule. The purpose of characterization is
to enable the forum to select the proper
law.
Our starting point of analysis here is not
a legal relation, but a factual situation,
event, or operative fact. An essential
5

element of conflict rules is the indication

of a test or connecting factor or point of
contact. Choice-of-law rules invariably
consist of a factual relationship (such as
property right, contract claim) and a
connecting factor or point of contact,
such as the situs of the res, the place of
celebration, the place of performance, or
the place of wrongdoing.

reason that it falls under one of the

exceptions to the applications of foreign
law; and
(8) the flag of a ship, which in many
cases is decisive of practically all legal
relationships of the ship and of its
master or owner as such. It also covers
contractual relationships particularly
contracts of affreightment.

Note that one or more circumstances

may be present to serve as the possible
test for the determination of the
applicable law. These test factors or
points of contact or connecting factors
could be any of the following:

Considering that the complaint in the

court a quo is one involving torts, the
connecting factor or point of contact
could be the place or places where the
tortious conduct or lex loci actus
occurred. And applying the torts
principle in a conflicts case, we find that
the Philippines could be said as a situs
of the tort (the place where the alleged
tortious conduct took place). This is
because it is in the Philippines where
petitioner allegedly deceived private
respondent, a Filipina residing and
working here. According to her, she had
honestly believed that petitioner would,
in the exercise of its rights and in the
performance of its duties, act with
justice, give her her due and observe
honesty and good faith. Instead,
petitioner failed to protect her, she
claimed. That certain acts or parts of the
injury allegedly occurred in another
country is of no moment. For in our view
what is important here is the place
where the over-all harm or the fatality of
the alleged injury to the person,
reputation, social standing and human
rights of complainant, had lodged,
according to the plaintiff below (herein
private respondent). All told, it is not
without basis to identify the Philippines
as the situs of the alleged tort.

(1) The nationality of a person, his

domicile, his residence, his place of
sojourn, or his origin;
(2) the seat of a legal or juridical person,
such as a corporation;
(3) the situs of a thing, that is, the place
where a thing is, or is deemed to be
situated. In particular, the lex situs is
decisive when real rights are involved;
(4) the place where an act has been
done, the locus actus, such as the place
where a contract has been made, a
marriage celebrated, a will signed or a
tort committed. The lex loci actus is
particularly important in contracts and
torts;
(5) the place where an act is intended to
come into effect, e.g., the place of
performance of contractual duties, or the
place where a power of attorney is to be
exercised;
(6) the intention of the contracting
parties as to the law that should govern
their agreement, the lex loci intentionis;
(7) the place where judicial or
administrative proceedings are instituted
or done. The lex forithe law of the
forumis particularly important because,
as we have seen earlier, matters of
procedure not going to the substance of
the claim involved are governed by it;
and because the lex fori applies
whenever the content of the otherwise
applicable foreign law is excluded from
application in a given case for the

As already discussed, there is basis for

the claim that over-all injury occurred
and lodged in the Philippines. There is
likewise no question that private
respondent is a resident Filipina
national, working with petitioner, a
resident foreign corporation engaged
here in the business of international air
carriage. Thus, the relationship between
6

the parties was centered here, although

it should be stressed that this suit is not
based on mere labor law violations.
From the record, the claim that the
Philippines has the most significant
contact with the matter in this dispute,
raised by private respondent as plaintiff
below
against
defendant
(herein
petitioner), in our view, has been
properly established.

PNB vs CABANSAG
FACTS:
> Respondent Florence Cabansag]
arrived in Singapore as a tourist. She
applied for employment, with the
Singapore Branch of the Philippine
National Bank, a private banking
corporation organized and existing
under the laws of the Philippines, with
principal offices at Manila. At the time,
the Branch Office had two (2) types of
employees: (a) expatriates or the regular
employees, hired in Manila and
assigned abroad including Singapore,
and (b) locally (direct) hired. She applied
for employment as Branch Credit
Officer, Ruben C. Tobias (General
Manager) found her eminently qualified
and wrote a letter to the President of the
Bank in Manila, recommending the
appointment of Florence O. Cabansag,
for the position.
> The President of the Bank was
impressed with the credentials of
Florence O. Cabansag that he approved
the recommendation of Ruben C.
Tobias. She then filed an Application,
with the Ministry of Manpower of the
Government of Singapore, for the
issuance of an Employment Pass as an
employee of the Singapore PNB Branch.
Her application was approved for a
period of two (2) years.
> She was then appointed as temporary
Credit Officer and upon her successful
completion of her probation to be
determined solely, by the Bank, she may
be extended at the discretion of the
Bank, a permanent appointment and
that her temporary appointment was
subject to the following terms and
conditions.
> Florence O. Cabansag accepted the
position and assumed office and she
was issued by the Philippine Overseas
Employment
Administration,
an
Overseas
Employment
Certificate,
certifying that she was a bona fide
contract worker for Singapore.
7

> With a rating of GOOD WORK in her

initial performance, she was perplexed
at the sudden turn of events and the
runabout why Ruben C. Tobias procured
her resignation from the Bank.
> An explanation that her resignation
was imperative as a cost-cutting measure
of the Bank.
> Her resignation was demanded but
when she refused, she received a letter
from Ruben C. Tobias terminating her
employment with the Bank.
> Labor Arbiter rendered judgment in
favor of the Complainant and against the
Respondents which was also affirmed
by NLRC.

ISSUE:
Whether or not the arbitration
branch of the NLRC in the National
Capital Region has jurisdiction over the
instant controversy?

RULING:
YES. The jurisdiction of labor
arbiters and the NLRC is specified in
Article 217 of the Labor Code. Labor
arbiters clearly have original and
exclusive jurisdiction over claims arising
from
employer-employee
relations,
including termination disputes involving
all workers, among whom are overseas
Filipino workers (OFW).
We are not unmindful of the fact that
respondent was directly hired, while on
a tourist status in Singapore, by the PNB
branch in that city state. Prior to
employing respondent, petitioner had to
obtain an employment pass for her from
the Singapore Ministry of Manpower.
Securing the pass was a regulatory
requirement pursuant to the immigration
regulations of that country.
Similarly, the Philippine government
requires non-Filipinos working in the

country to first obtain a local work permit

in order to be legally employed here.
That permit, however, does not
automatically mean that the non-citizen
is thereby bound by local laws only, as
averred by petitioner. It does not at all
imply a waiver of ones national laws on
labor. Absent any clear and convincing
evidence to the contrary, such permit
simply means that its holder has a legal
status as a worker in the issuing
country.
Noteworthy is the fact that respondent
likewise applied for and secured an
Overseas Employment Certificate from
the POEA through the Philippine
Embassy in Singapore. The Certificate
declared her a bona fide contract worker
for Singapore. Under Philippine law, this
document authorized her working status
in a foreign country and entitled her to
all benefits and processes under our
statutes.
Thus,
even
assuming
arguendo that she was considered at
the start of her employment as a direct
hire governed by and subject to the
laws, common practices and customs
prevailing
in
Singapore
she
subsequently became a contract worker
or an OFW who was covered by
Philippine labor laws and policies upon
certification by the POEA. At the time
her
employment
was
illegally
terminated, she already possessed the
POEA employment Certificate.
Whether employed locally or overseas,
all Filipino workers enjoy the protective
mantle of Philippine labor and social
legislation, contract stipulations to the
contrary
notwithstanding.
This
pronouncement is in keeping with the
basic public policy of the State to afford
protection to labor, promote full
employment,
ensure
equal
work
opportunities regardless of sex, race or
creed, and regulate the relations
between workers and employers.
*** VENUE***
8

Section 1. Venue (a) All cases which

Labor Arbiters have authority to hear
and decide may be filed in the Regional
Arbitration Branch having jurisdiction
over
the
workplace
of
the
complainant/petitioner;
Provided,
however that cases of Overseas Filipino
Worker (OFW) shall be filed before the
Regional Arbitration Branch where the
complainant resides or where the
principal
office
of
the
respondent/employer is situated, at the
option of the complainant.
Under the Migrant Workers and
Overseas Filipinos Act of 1995 (RA
8042), a migrant worker refers to a
person who is to be engaged, is
engaged or has been engaged in a
remunerated activity in a state of which
he or she is not a legal resident; to be
used interchangeably with overseas
Filipino worker. Undeniably, respondent
was employed by petitioner in its branch
office in Singapore. Admittedly, she is a
Filipino and not a legal resident of that
state. She thus falls within the category
of migrant worker or overseas Filipino
worker.
As such, it is her option to choose the
venue of her Complaint against
petitioner for illegal dismissal. The law
gives her two choices: (1) at the
Regional Arbitration Branch (RAB)
where she resides or (2) at the RAB
where the principal office of her
employer is situated. Since her
dismissal by petitioner, respondent has
returned to the Philippines -- specifically
to her residence at Filinvest II, Quezon
City. Thus, in filing her Complaint before
the RAB office in Quezon City, she has
made a valid choice of proper venue.

CORPUZ vs STO. TOMAS

FACTS:
> Petitioner Gerbert R. Corpuz was a
former Filipino citizen who acquired
Canadian
citizenship
through
naturalization.
> Gerbert married respondent Daisylyn
T. Sto. Tomas, a Filipina. Due to work
and other professional commitments,
Gerbert left for Canada soon after the
wedding. He returned to the Philippines
sometime to surprise Daisylyn, but was
shocked to discover that his wife was
having an affair with another man. Hurt
and disappointed, Gerbert returned to
Canada and filed a petition for divorce.
Canada granted Gerberts petition for
divorce
> Two years after the divorce, Gerbert
has moved on and has found another
Filipina to love. Desirous of marrying his
new Filipina fiance in the Philippines,
Gerbert went to the Registry Office and
registered the Canadian divorce decree
on his and Daisylyns marriage
certificate. Despite the registration of the
divorce decree, an official of the
National
Statistics
Office
(NSO)
informed Gerbert that the marriage
between him and Daisylyn still subsists
under Philippine law; to be enforceable,
the foreign divorce decree must first be
judicially recognized by a competent
Philippine court.
> Accordingly, Gerbert filed a petition for
judicial recognition of foreign divorce
and/or declaration of marriage as
dissolved (petition) with the RTC.
Although summoned, Daisylyn did not
file any responsive pleading but
submitted
instead
a
notarized
letter/manifestation to the trial court. She
offered no opposition to Gerberts
petition and, in fact, alleged her desire to
file a similar case herself but was
prevented by financial and personal
circumstances. She, thus, requested
that she be considered as a party-ininterest with a similar prayer to
Gerberts.
9

> RTC denied Gerberts petition. The

RTC concluded that Gerbert was not the
proper party to institute the action for
judicial recognition of the foreign divorce
decree as he is a naturalized Canadian
citizen. It ruled that only the Filipino
spouse can avail of the remedy.

ISSUE:
Whether or not the alien spouse
can claim no right under the second
paragraph of Article 26 of the Family
Code as the substantive right it
establishes is in favor of the Filipino
spouse>

RULING:

YES. Recognizing the reality that

divorce is a possibility in marriages
between a Filipino and an alien,
President Corazon C. Aquino, in the
exercise of her legislative powers under
the Freedom Constitution, enacted
Executive Order No. (EO) 227,
amending Article 26 of the Family Code
to its present wording, as follows:
Art. 26. All marriages solemnized
outside
the
Philippines,
in
accordance with the laws in force
in the country where they were
solemnized, and valid there as
such, shall also be valid in this
country, except those prohibited
under Articles 35(1), (4), (5) and
(6), 36, 37 and 38.
Where a marriage between a
Filipino citizen and a foreigner is
validly celebrated and a divorce is
thereafter validly obtained abroad
by the alien spouse capacitating
him or her to remarry, the Filipino
spouse
shall
likewise
have
capacity
to
remarry
under
Philippine law.

Through the second paragraph of Article

26 of the Family Code, EO 227
effectively incorporated into the law this
Courts holding in Van Dorn v. Romillo,
Jr. and Pilapil v. Ibay-Somera. In both
cases,
the
Court
refused
to
acknowledge
the
alien
spouses
assertion of marital rights after a foreign
courts divorce decree between the alien
and the Filipino. The Court, thus,
recognized that the foreign divorce had
already severed the marital bond
between the spouses.
To maintain x x x that, under our laws,
[the Filipino spouse] has to be
considered still married to [the alien
spouse] and still subject to a wife's
obligations x x x cannot be just. [The
Filipino spouse] should not be obliged to
live together with, observe respect and
fidelity, and render support to [the alien
spouse]. The latter should not continue
to be one of her heirs with possible
rights to conjugal property. She should
not be discriminated against in her own
country if the ends of justice are to be
served.
Given the rationale and intent behind the
enactment, and the purpose of the
second paragraph of Article 26 of the
Family Code, the RTC was correct in
limiting the applicability of the provision
for the benefit of the Filipino spouse. In
other words, only the Filipino spouse
can invoke the second paragraph of
Article 26 of the Family Code; the alien
spouse can claim no right under this
provision.
We qualify our above conclusion i.e.,
that the second paragraph of Article 26
of the Family Code bestows no rights in
favor of aliens with the complementary
statement that this conclusion is not
sufficient basis to dismiss Gerberts
petition before the RTC. In other words,
the unavailability of the second
paragraph of Article 26 of the Family
Code to aliens does not necessarily strip
Gerbert of legal interest to petition the
10

RTC for the recognition of his foreign

divorce decree. The foreign divorce
decree itself, after its authenticity and
conformity with the aliens national law
have been duly proven according to our
rules of evidence, serves as a
presumptive evidence of right in favor of
Gerbert, pursuant to Section 48, Rule 39
of the Rules of Court which provides for
the effect of foreign judgments.
SEC. 48. Effect of foreign
judgments or final orders.The
effect of a judgment or final order
of a tribunal of a foreign country,
having jurisdiction to render the
judgment or final order is as
follows:
(a) In case of a judgment or final
order upon a specific thing, the
judgment or final order is
conclusive upon the title of the
thing; and
(b) In case of a judgment or final
order against a person, the
judgment or final order is
presumptive evidence of a right as
between the parties and their
successors in interest by a
subsequent title.
In either case, the judgment or final
order may be repelled by evidence of a
want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake
of law or fact.
The starting point in any recognition of a
foreign divorce judgment is the
acknowledgment that our courts do not
take judicial notice of foreign judgments
and laws. Justice Herrera explained
that, as a rule, "no sovereign is bound to
give effect within its dominion to a
judgment rendered by a tribunal of
another country." This means that the
foreign judgment and its authenticity
must be proven as facts under our rules
on evidence, together with the aliens
applicable national law to show the
effect of the judgment on the alien

himself or herself. The recognition may

be made in an action instituted
specifically for the purpose or in another
action where a party invokes the foreign
decree as an integral aspect of his claim
or defense.
In Gerberts case, since both the foreign
divorce decree and the national law of
the alien, recognizing his or her capacity
to obtain a divorce, purport to be official
acts of a sovereign authority, Section
24, Rule 132 of the Rules of Court
comes into play. This Section requires
proof, either by (1) official publications or
(2) copies attested by the officer having
legal custody of the documents. If the
copies of official records are not kept in
the Philippines, these must be (a)
accompanied by a certificate issued by
the proper diplomatic or consular officer
in the Philippine foreign service
stationed in the foreign country in which
the record is kept and (b) authenticated
by the seal of his office.
The records show that Gerbert attached
to his petition a copy of the divorce
decree, as well as the required
certificates proving its authenticity, but
failed to include a copy of the Canadian
law on divorce. Under this situation, we
can, at this point, simply dismiss the
petition for insufficiency of supporting
evidence, unless we deem it more
appropriate to remand the case to the
RTC to determine whether the divorce
decree is consistent with the Canadian
divorce law.

11

FUJIKI vs MARINAY
FACTS:

RULING:

> Petitioner Minoru Fujiki (Fujiki) is a

Japanese
national
who
married
respondent Maria Paz Galela Marinay
(Marinay) in the Philippines. The
marriage did not sit well with petitioners
parents. Thus, Fujiki could not bring his
wife to Japan where he resides.
Eventually, they lost contact with each
other.
> Marinay met another Japanese,
Maekara. Without the first marriage
being dissolved, Marinay and Maekara
were married in the Philippines.
Maekara brought Marinay to Japan.
However, Marinay allegedly suffered
physical abuse from Maekara. She left
Maekara and started to contact Fujiki.
> Fujiki and Marinay met in Japan and
they were able to reestablish their
relationship. Fujiki helped Marinay
obtain a judgment from a family court in
Japan which declared the marriage
between Marinay and Maekara void on
the ground of bigamy. Fujiki filed a
petition in the RTC entitled: "Judicial
Recognition of Foreign Judgment (or
Decree of Absolute Nullity of Marriage)."
Fujiki prayed that (1) the Japanese
Family Court judgment be recognized;
(2) that the bigamous marriage between
Marinay and Maekara be declared void
ab initio.
> RTC immediately issued an Order
dismissing the petition - that only "the
husband or the wife," in this case either
Maekara or Marinay, can file the petition
to declare their marriage void, and not
Fujiki.

YES. The Rule on Declaration of

Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M.
No. 02-11-10-SC) does not apply in a
petition to recognize a foreign judgment
relating to the status of a marriage
where one of the parties is a citizen of a
foreign country. Court held that the rule
in A.M. No. 02-11-10-SC that only the
husband or wife can file a declaration of
nullity or annulment of marriage "does
not apply if the reason behind the
petition is bigamy."

ISSUE:
Whether or not a husband or wife
of a prior marriage can file a petition to
recognize a foreign judgment nullifying
the subsequent marriage between his or
her spouse and a foreign citizen on the
ground of bigamy?

To hold that A.M. No. 02-11-10-SC

applies to a petition for recognition of
foreign judgment would mean that the
trial court and the parties should follow
its provisions, including the form and
contents of the petition, the service of
summons, the investigation of the public
prosecutor, the setting of pre-trial, the
trial and the judgment of the trial court.
This is absurd because it will litigate the
case anew. It will defeat the purpose of
recognizing foreign judgments, which is
"to limit repetitive litigation on claims and
issues." The interpretation of the RTC is
tantamount to relitigating the case on
the merits. In Mijares v. Raada, this
Court explained that "[i]f every judgment
of a foreign court were reviewable on
the merits, the plaintiff would be forced
back on his/her original cause of action,
rendering immaterial the previously
concluded litigation."
A foreign judgment relating to the status
of a marriage affects the civil status,
condition and legal capacity of its
parties. However, the effect of a foreign
judgment is not automatic. To extend
the effect of a foreign judgment in the
Philippines, Philippine courts must
determine if the foreign judgment is
consistent with domestic public policy
and other mandatory laws. Article 15 of
the Civil Code provides that "[l]aws
12

relating to family rights and duties, or to

the status, condition and legal capacity
of persons are binding upon citizens of
the Philippines, even though living
abroad." This is the rule of lex nationalii
in private international law. Thus, the
Philippine State may require, for
effectivity in the Philippines, recognition
by Philippine courts of a foreign
judgment affecting its citizen, over whom
it exercises personal jurisdiction relating
to the status, condition and legal
capacity of such citizen.
Since the recognition of a foreign
judgment only requires proof of fact of
the judgment, it may be made in a
special proceeding for cancellation or
correction of entries in the civil registry
under Rule 108 of the Rules of Court.
Rule 1, Section 3 of the Rules of Court
provides that "[a] special proceeding is a
remedy by which a party seeks to
establish a status, a right, or a particular
fact." Rule 108 creates a remedy to
rectify facts of a persons life which are
recorded by the State pursuant to the
Civil Register Law or Act No. 3753.
These are facts of public consequence
such as birth, death or marriage, which
the State has an interest in recording.
As noted by the Solicitor General, in
Corpuz v. Sto. Tomas this Court
declared that "[t]he recognition of the
foreign divorce decree may be made in
a Rule 108 proceeding itself, as the
object of special proceedings (such as
that in Rule 108 of the Rules of Court) is
precisely to establish the status or right
of a party or a particular fact."
Rule 108, Section 1 of the Rules of
Court states:
Sec. 1. Who may file petition. Any
person interested in any act, event,
order or decree concerning the civil
status of persons which has been
recorded in the civil register, may file a
verified petition for the cancellation or
correction of any entry relating thereto,
with the Regional Trial Court of the

province where the corresponding civil

registry is located.
Fujiki has the personality to file a petition
to recognize the Japanese Family Court
judgment
nullifying
the
marriage
between Marinay and Maekara on the
ground of bigamy because the judgment
concerns his civil status as married to
Marinay. For the same reason he has
the personality to file a petition under
Rule 108 to cancel the entry of marriage
between Marinay and Maekara in the
civil registry on the basis of the decree
of the Japanese Family Court.
There is no doubt that the prior spouse
has a personal and material interest in
maintaining the integrity of the marriage
he contracted and the property relations
arising from it. There is also no doubt
that he is interested in the cancellation
of an entry of a bigamous marriage in
the civil registry, which compromises the
public record of his marriage. The
interest derives from the substantive
right of the spouse not only to preserve
(or dissolve, in limited instances) his
most intimate human relation, but also to
protect his property interests that arise
by operation of law the moment he
contracts marriage. These property
interests in marriage include the right to
be supported "in keeping with the
financial capacity of the family" and
preserving the property regime of the
marriage.
Property rights are already substantive
rights protected by the Constitution.
Section 2(a) of A.M. No. 02-11-10-SC
does not preclude a spouse of a
subsisting marriage to question the
validity of a subsequent marriage on the
ground of bigamy. On the contrary,
when Section 2(a) states that "[a]
petition for declaration of absolute nullity
of void marriage may be filed solely by
the husband or the wife" it refers to
the husband or the wife of the subsisting
marriage. Under Article 35(4) of the
13

Family Code, bigamous marriages are

void from the beginning. Thus, the
parties in a bigamous marriage are
neither the husband nor the wife under
the law. The husband or the wife of the
prior subsisting marriage is the one who
has the personality to file a petition for
declaration of absolute nullity of void
marriage under Section 2(a) of A.M. No.
02-11-10-SC.
Article 35(4) of the Family Code, which
declares bigamous marriages void from
the beginning, is the civil aspect of
Article 349 of the Revised Penal Code,
which penalizes bigamy. Bigamy is a
public crime. Thus, anyone can initiate
prosecution for bigamy because any
citizen has an interest in the prosecution
and prevention of crimes. If anyone can
file a criminal action which leads to the
declaration of nullity of a bigamous
marriage, there is more reason to confer
personality to sue on the husband or the
wife of a subsisting marriage. The prior
spouse does not only share in the public
interest of prosecuting and preventing
crimes, he is also personally interested
in the purely civil aspect of protecting his
marriage.
Being a real party in interest, the prior
spouse is entitled to sue in order to
declare a bigamous marriage void. For
this purpose, he can petition a court to
recognize a foreign judgment nullifying
the bigamous marriage and judicially
declare as a fact that such judgment is
effective in the Philippines. Once
established, there should be no more
impediment to cancel the entry of the
bigamous marriage in the civil registry.
In the recognition of foreign judgments,
Philippine courts are incompetent to
substitute their judgment on how a case
was decided under foreign law. They
cannot decide on the "family rights and
duties, or on the status, condition and
legal capacity" of the foreign citizen who
is a party to the foreign judgment. Thus,
Philippine courts are limited to the

question of whether to extend the effect

of a foreign judgment in the Philippines.
In a foreign judgment relating to the
status of a marriage involving a citizen
of a foreign country, Philippine courts
only decide whether to extend its effect
to the Filipino party, under the rule of lex
nationalii expressed in Article 15 of the
Civil Code.
For this purpose, Philippine courts will
only determine (1) whether the foreign
judgment is inconsistent with an
overriding
public
policy
in
the
Philippines; and (2) whether any alleging
party is able to prove an extrinsic ground
to repel the foreign judgment, i.e. want
of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake
of law or fact. If there is neither
inconsistency with public policy nor
adequate proof to repel the judgment,
Philippine courts should, by default,
recognize the foreign judgment as part
of the comity of nations. Section 48(b),
Rule 39 of the Rules of Court states that
the foreign judgment is already
"presumptive evidence of a right
between the parties." Upon recognition
of the foreign judgment, this right
becomes conclusive and the judgment
serves as the basis for the correction or
cancellation of entry in the civil registry.
The recognition of the foreign judgment
nullifying a bigamous marriage is a
subsequent event that establishes a
new status, right and fact that needs to
be reflected in the civil registry.
Otherwise,
there
will
be
an
inconsistency between the recognition of
the effectivity of the foreign judgment
and the public records in the
Philippines.1wphi1
However, the recognition of a foreign
judgment nullifying a bigamous marriage
is without prejudice to prosecution for
bigamy under Article 349 of the Revised
Penal Code. The recognition of a foreign
judgment nullifying a bigamous marriage
is not a ground for extinction of criminal
liability under Articles 89 and 94 of the
14

Revised Penal Code. Moreover, under

Article 91 of the Revised Penal Code,
"[t]he term of prescription [of the crime
of bigamy] shall not run when the
offender is absent from the Philippine
archipelago."

VALMONTE vs CA
FACTS:
> Petitioner Lourdes A. Valmonte is a
foreign resident.
> Petitioners Lourdes A. Valmonte and
Alfredo D. Valmonte are husband and
wife. They are both residents of
Washington, U.S.A. Petitioner Alfredo D.
Valmonte, who is a member of the
Philippine bar, however, practices his
profession in the Philippines, commuting
for this purpose between his residence
in the state of Washington and Manila.
> private respondent Rosita Dimalanta,
who is the sister of petitioner Lourdes A.
Valmonte, filed a complaint for partition
of real property and accounting of
rentals against petitioners Lourdes A.
Valmonte and Alfredo D. Valmonte
before the RTC. The subject of the
action is a three-door apartment located
in Paco, Manila.
> Service of summons was then made
upon petitioner Alfredo D. Valmonte,
who at the time, was at his office in
Manila. Petitioner Alfredo D. Valmonte
accepted the summons, insofar as he
was concerned, but refused to accept
the summons for his wife, Lourdes A.
Valmonte, on the ground that he was not
authorized to accept the process on her
behalf. Accordingly the process server
left without leaving a copy of the
summons and complaint for petitioner
Lourdes A. Valmonte.
> Petitioner Alfredo D. Valmonte
thereafter filed his Answer with
Counterclaim. Petitioner Lourdes A.
Valmonte, however, did not file her
Answer. For this reason private
respondent moved to declare her in
default. Petitioner Alfredo D. Valmonte
entered a special appearance in behalf
of his wife and opposed the private
respondents motion.
> Trial court denied private respondents
motion to declare petitioner Lourdes A.
Valmonte in default.

15

> Court of Appeals rendered a decision

granting the petition and declaring
Lourdes A. Valmonte in default.
> CA ruled: Mrs. Valmonte clearly and
unequivocally
directed
the
aforementioned counsel of Dimalanta to
address all communications (evidently
referring to her controversy with her
sister Mrs. Dimalanta over the Paco
property, now the subject of the instant
case) to her lawyer who happens also to
be her husband. Such directive was
made without any qualification just as
was her choice/designation of her
husband Atty. Valmonte as her lawyer
likewise made without any qualification
or reservation. Any disclaimer therefore
on the part of Atty. Valmonte as to his
being his wifes attorney (at least with
regard to the dispute vis-a-vis [sic] the
Paco property) would appear to be
feeble or trifling, if not incredible.
This view is bolstered by Atty.
Valmontes subsequent alleged special
appearance made on behalf of his wife.
ISSUE:
Whether or not the petitioner was
validly served with summons?
RULING:
NO. We hold that there was no
valid service of process on Lourdes A.
Valmonte.
To provide perspective, it will be helpful
to determine first the nature of the action
filed against petitioners Lourdes A.
Valmonte and Alfredo D. Valmonte by
private respondent, whether it is an
action in personam, in rem or quasi in
rem. This is because the rules on
service of summons embodied in Rule
14 apply according to whether an action
is one or the other of these actions.
In an action in personam, personal
service of summons or, if this is not
possible and he cannot be personally
served, substituted service, as provided

in Rule 14, 7-8 is essential for the

acquisition by the court of jurisdiction
over the person of a defendant who
does not voluntarily submit himself to
the authority of the court. If defendant
cannot be served with summons
because he is temporarily abroad, but
otherwise he is a Philippine resident,
service of summons may, by leave of
court, be made by publication.
Otherwise stated, a resident defendant
in an action in personam, who cannot be
personally served with summons, may
be summoned either by means of
substituted service in accordance with
Rule 14, 8 or by publication as provided
in 17 and 18 of the same Rule.
In all of these cases, it should be noted,
defendant must be a resident of the
Philippines, otherwise an action in
personam cannot be brought because
jurisdiction over his person is essential
to make a binding decision.
On the other hand, if the action is in rem
or quasi in rem, jurisdiction over the
person of the defendant is not essential
for giving the court jurisdiction so long
as the court acquires jurisdiction over
the res. If the defendant is a nonresident
and he is not found in the country,
summons
may
be
served
extraterritorially in accordance with Rule
14, 17, which provides:
17. Extraterritorial service. - When
the defendant does not reside and
is not found in the Philippines and
the action affects the personal
status of the plaintiff or relates to,
or the subject of which is, property
within the Philippines, in which the
defendant has or claims a lien or
interest, actual or contingent, or in
which
the
relief
demanded
consists, wholly or in part, in
excluding the defendant from any
interest therein, or the property of
the defendant has been attached
within the Philippines, service
may, by leave of court, be effected
16

out of the Philippines by personal

service as under Section 7; or by
publication in a newspaper of
general circulation in such places
and for such time as the court may
order, in which case a copy of the
summons and order of the court
shall be sent by registered mail to
the last known address of the
defendant, or in any other manner
the court may deem sufficient. Any
order granting such leave shall
specify a reasonable time, which
shall not be less than sixty (60)
days after notice, within which the
defendant must answer.
In such cases, what gives the court
jurisdiction in an action in rem or quasi
in rem is that it has jurisdiction over the
res, i.e. the personal status of the
plaintiff who is domiciled in the
Philippines or the property litigated or
attached. Service of summons in the
manner provided in 17 is not for the
purpose of vesting it with jurisdiction but
for complying with the requirements of
fair play or due process, so that he will
be informed of the pendency of the
action against him and the possibility
that property in the Philippines
belonging to him or in which he has an
interest may be subjected to a judgment
in favor of the plaintiff and he can
thereby take steps to protect his interest
if he is so minded.
Applying the foregoing rules to the case
at bar, private respondents action, which
is for partition and accounting under
Rule 69, is in the nature of an action
quasi in rem. Such an action is
essentially for the purpose of affecting
the defendants interest in a specific
property and not to render a judgment
against him.
As petitioner Lourdes A. Valmonte is a
nonresident who is not found in the
Philippines, service of summons on her
must be in accordance with Rule 14, 17.
Such service, to be effective outside the

Philippines, must be made either (1) by

personal service; (2) by publication in a
newspaper of general circulation in such
places and for such time as the court
may order, in which case a copy of the
summons and order of the court should
be sent by registered mail to the last
known address of the defendant; or (3)
in any other manner which the court
may deem sufficient.
Since in the case at bar, the service of
summons upon petitioner Lourdes A.
Valmonte was not done by means of
any of the first two modes, the question
is whether the service on her attorney,
petitioner Alfredo D. Valmonte, can be
justified under the third mode, namely, in
any . . . manner the court may deem
sufficient.
We hold it cannot. This mode of service,
like the first two, must be made outside
the Philippines, such as through the
Philippine Embassy in the foreign
country where the defendant resides.
Moreover, there are several reasons
why the service of summons on Atty.
Alfredo D. Valmonte cannot be
considered a valid service of summons
on petitioner Lourdes A. Valmonte. In
the first place, service of summons on
petitioner Alfredo D. Valmonte was not
made upon the order of the court as
required by Rule 14, 17 and certainly
was not a mode deemed sufficient by
the court which in fact refused to
consider the service to be valid and on
that basis declare petitioner Lourdes A.
Valmonte in default for her failure to file
an answer.
In the second place, service in the
attempted manner on petitioner was not
made upon prior leave of the trial court
as required also in Rule 14, 17. As
provided in 19, such leave must be
applied for by motion in writing,
supported by affidavit of the plaintiff or
some person on his behalf and setting
forth the grounds for the application.
17

Finally, and most importantly, because

there was no order granting such leave,
petitioner Lourdes A. Valmonte was not
given ample time to file her Answer
which, according to the rules, shall be
not less than sixty (60) days after notice.
It must be noted that the period to file an
Answer in an action against a resident
defendant differs from the period given
in an action filed against a nonresident
defendant who is not found in the
Philippines. In the former, the period is
fifteen (15) days from service of
summons, while in the latter, it is at least
sixty (60) days from notice.

construed as also including an authority

to represent her in any litigation.
For the foregoing reasons, we hold that
there was no valid service on petitioner
Lourdes A. Valmonte in this case.

Strict
compliance
with
these
requirements
alone
can
assure
observance of due process. That is why
in one case, although the Court
considered publication in the Philippines
of the summons (against the contention
that it should be made in the foreign
state where defendant was residing)
sufficient, nonetheless the service was
considered insufficient because no copy
of the summons was sent to the last
known
correct
address
in
the
Philippines.
In contrast, in the case at bar, petitioner
Lourdes A. Valmonte did not appoint her
husband
as
her
attorney-in-fact.
Although she wrote private respondents
attorney that
all
communications
intended for her should be addressed to
her husband who is also her lawyer at
the latters address in Manila, no power
of attorney to receive summons for her
can be inferred therefrom. In fact the
letter was written seven months before
the filing of this case below, and it
appears that it was written in connection
with the negotiations between her and
her sister, respondent Rosita Dimalanta,
concerning the partition of the property
in question. As is usual in negotiations
of this kind, the exchange of
correspondence was carried on by
counsel for the parties. But the authority
given to petitioners husband in these
negotiations
certainly
cannot
be
18

RAYRAY vs LEE
FACTS:
Rayray married Lee in 1952 in Pusan,
Korea. Before the marriage, Lee was
able to secure a marriage license which
is a requirement in Korea prior to
marrying. They lived together until 1955.
Rayray however later found out that Lee
had previously lived with 2 Americans
and a Korean. Lee answered by saying
that it is not unusual in Korea for a
woman to have more than one partner
and that it is legally permissive for them
to do so and that there is no legal
impediment to her marriage with
Rayray. Eventually they pursued their
separate ways. Rayray later filed before
lower court of Manila for an action to
annul his marriage with Lee because
Lees
whereabouts
cannot
be
determined and that his consent in
marrying Lee would have not been for
the marriage had he known prior that
Lee had been living with other men. His
action for annulment had been duly
published and summons were made
known to Lee but due to her absence
Rayray moved to have Lee be declared
in default. The lower court denied
Rayrays action stating that since the
marriage was celebrated in Korea the
court cannot take cognizance of the
case and that the facts presented by
Rayray is not sufficient to debunk his
marriage with Lee.

ISSUE:
Whether or not the court has
jurisdiction to pass upon the validity of
plaintiff's marriage to the defendant, it
having been solemnized in Seoul,
Korea?

RULING:
YES. In order that a given case
could be validly decided by a court of

justice, it must have jurisdiction over (1)

the subject-matter of the litigation; (2)
the person of the parties therein; and (3)
in actions in rem or quasi-in-rem, the
res.
The subject-matter of the present case
is the annulment of plaintiff's marriage to
the defendant, which is within the
jurisdiction of our courts of first instance.
The same acquired jurisdiction over
plaintiff herein by his submission thereto
in consequence of the filing of the
complaint herein. Defendant was placed
under the jurisdiction of said court, upon
the service of summons by publication.
This is an action in rem, for it concerns
the status of the parties herein, and
status affects or binds the whole world.
The res in the present case is the
relation between said parties, or their
marriage tie. Jurisdiction over the same
depends upon the nationality or domicile
of the parties, not the place of
celebration of marriage, or the locus
celebrationis. Plaintiff here is a citizen of
the Philippines, domiciled therein. His
status is, therefore, subject to our
jurisdiction, on both counts. True that
defendant was and under plaintiff's
theory still is a non-resident alien. But,
this fact does not deprive the lower court
of its jurisdiction to pass upon the
validity of her marriage to plaintiff herein.
Hence, a judicial decree on the marriage
status of a person necessarily reflects
upon the status of another and the
relation between them. The prevailing
rule is, accordingly, that a court has
jurisdiction over the res, in an action for
annulment of marriage, provided, at
least, one of the parties is domiciled in,
or a national of, the forum. Since plaintiff
is a Filipino, domiciled in the Philippines,
it follows that the lower court had
jurisdiction over the res, in addition to its
jurisdiction over the subject-matter and
the parties. In other words, it could
19

validly inquire into the legality of the

marriage between the parties herein.

RAYTHEON vs ROUZIE
FACTS:

The lower court considered plaintiffs

evidence insufficient to establish that
defendant was married to another
person prior to their marriage. It could,
at best, be no more than hearsay
evidence. Again, when plaintiff allegedly
confronted the defendant defendant did
not say that she had been married
before. Plaintiff declared that she
admitted having previously lived with
several other men, adding, however,
that she had no impediment, thus, in
effect, negating the alleged previous
marriage.
There is no competent evidence to the
effect that Korean laws permit bigamy or
polygamy. Moreover, the presumption is
that the foreign law is identical to the lex
fori, or, in the case at bar, the Philippine
Law. In fact, the statement, imputed by
plaintiff to the defendant, to the effect
that, although she had cohabited before
with other men, there was no
impediment to her marrying him, clearly
suggests that a previous marriage on
her part would have been, in her
opinion, a legal obstacle to her marriage
with the plaintiffs.
Plaintiff cannot possibly secure the relief
prayed for unless full faith and credence
are given to his testimony, but we
cannot believe him for the records show
that he would not hesitate to lie when it
suits his purpose. Thus, for instance,
when plaintiff contracted marriage with
the defendant, he said that he was
single, although, he admitted, this was a
lie, because, sometime in 1940, he
married in Baguio, one Adelaida Melecio
or Valdez. But, then he would, also,
have us believe that his marriage with
the latter was illegal or fictitious,
because Adelaida and he did no more
than sign, on a small window in the City
Hall of Baguio, certain documents the
contents of which he did not read.

Brand Marine Services, Inc., (BMSI) a

foreign corporation organized under
thelaws of the State of Connecticut, and
respondent Stockton W. Rouzie entered
into acontract whereby the respondent
was hired by BMSI as representative to
negotiate the saleof services with the
Philippine government. Respondent
secure a service contract
with
thegovernment on behalf of BMSI.
In 1994, respondent filed before the
National Labor Relations Commission
(NLRC) a complaint against BMSI and
Rust
International
In.
for illegal
termination,
non-payment
of
commission, and breach of contract.
The Labor Arbiter rendered a favorable
decision for respondent. The NLRC
reversed
the
decision
of
the
Labor Arbiter. Respondent elevated the
case before the Supreme Court but it
was dismissed. In 1998, respondent
filed an action for damages before the
Regional Trial Court(RTC) against the
petitioner and impleaded BMSI and
RUST International reiterating the
allegations made in the earlier labor
case. The respondent also alleged that
BMSI, Rust International, and herein
petitioner combined
and function as
one company. The petitioner sought the
dismissal of the case on grounds of
failure to state a cause of action and
forum non conveniens.
It also filed an Omnibus Motion which
was denied by the RTC. The motion for
reconsideration was also dismissed by
the lower court. Petitioner filed a
petitionfor certiorari before the Court of
Appeals which was also denied.

ISSUES:
1. Whether or not the Court of Appeals
erred in refusing to dismiss the
20

complaint for failure to state a cause of

action?

HASEGAWA vs KITAMURA
FACTS:

2. Whether or not the Court of Appeals

erred in refusing to dismiss the
complaint on the ground of forum non
conveniens

RULING:
Petitioner contended that their written
contract with respondent included a
valid choice of law clause, the laws of
the State of Connecticut, hence the
application
of
the
doctrine of forum non conveniens beca
me necessary .
Under this doctrine, a court in conflictsof -law cases may refuse impositions on
its jurisdictions where it is not the most
convenient forum and the parties are not
precluded from seeking remedies
elsewhere.
However, the
Supreme
Court rejected petitioners contention
stating that the presence of a valid
choice of law clause did not suggest that
Philippine courts are precluded from
hearing the civil action. The High Court
ratiocinated that jurisdiction over the
nature and subject matter of an action is
conferred by the Constitution and the
law.
The trial court acquired jurisdiction over
the respondent upon the filing of the
complaint. It also acquired jurisdiction
over the petitioner when it appeared
voluntarily in court. The Supreme Court
also pointed out that the Court of
Appeals correctly rules the need for a
full-blown trial to determine the alleged
merging of BMSI and Rust International.
Hence, the petition for review of
DENIED.

Petitioner
Nippon
Engineering
Consultants Co., Ltd. (Nippon), a
Japanese consultancy firm providing
technical and management support in
the infrastructure projects of foreign
governments,
entered
into
an
Independent Contractor Agreement
(ICA) with respondent Minoru Kitamura,
a Japanese national permanently
residing in the Philippines. The
agreement provides that respondent
was to extend professional services to
Nippon for a year. Nippon then assigned
respondent to work as the project
manager of the Southern Tagalog
Access Road (STAR) Project in the
Philippines, following the company's
consultancy contract with the Philippine
Government.
When the STAR Project was near
completion, the Department of Public
Works and Highways (DPWH) engaged
the consultancy services of Nippon, this
time for the detailed engineering and
construction
supervision
of
the
Bongabon-Baler Road Improvement
(BBRI) Project. Respondent was named
as the project manager in the contract's.
Petitioner Kazuhiro Hasegawa, Nippon's
general manager for its International
Division, informed respondent that the
company had no more intention of
automatically renewing his ICA. His
services would be engaged by the
company only up to the substantial
completion of the STAR Project, just in
time for the ICA's expiry.
Threatened
with
impending
unemployment, respondent, through his
lawyer,
requested
a
negotiation
conference and demanded that he be
assigned to the BBRI project. Nippon
insisted that respondents contract was
for a fixed term that had already expired,
21

and refused to negotiate for the renewal

of the ICA.
As he was not able to generate a
positive response from the petitioners,
respondent consequently initiated on
June 1, 2000 Civil Case No. 00-0264 for
specific performance and damages with
the Regional Trial Court of Lipa City.
For their part, petitioners, contending
that the ICA had been perfected in
Japan and executed by and between
Japanese nationals, moved to dismiss
the complaint for lack of jurisdiction.
They asserted that the claim for
improper
pre-termination
of
respondent's ICA could only be heard
and ventilated in the proper courts of
Japan following the principles of lex loci
celebrationis and lex contractus.
RTC ruled in favor of the petitioner.

ISSUE:
Whether or Not the subject matter
jurisdiction of Philippine courts in civil
cases for specific performance and
damages involving contracts executed
outside the country by foreign nationals
may be assailed on the principles of lex
loci celebrationis, lex contractus, the
state of the most significant relationship
rule, or forum non conveniens?

The courts power to hear cases and

controversies is derived from the
Constitution and the laws. While it may
choose to recognize laws of foreign
nations, the court is not limited by
foreign sovereign law short of treaties or
other formal agreements, even in
matters regarding rights provided by
foreign sovereigns.
Neither can the other ground raised,
forum non conveniens, be used to
deprive the trial court of its jurisdiction
herein. First, it is not a proper basis for a
motion to dismiss because Section 1,
Rule 16 of the Rules of Court does not
include it as a ground. Second, whether
a suit should be entertained or
dismissed on the basis of the said
doctrine depends largely upon the facts
of the particular case and is addressed
to the sound discretion of the trial court.
In this case, the RTC decided to assume
jurisdiction. Third, the propriety of
dismissing a case based on this
principle
requires
a
factual
determination; hence, this conflicts
principle is more properly considered a
matter of defense.
Accordingly, since the RTC is vested by
law with the power to entertain and hear
the civil case filed by respondent and
the grounds raised by petitioners to
assail that jurisdiction are inappropriate,
the trial and appellate courts correctly
denied the petitioners motion to
dismiss.

RULING:
NO. It should be noted that when
a conflicts case, one involving a foreign
element, is brought before a court or
administrative agency, there are three
alternatives open to the latter in
disposing of it: (1) dismiss the case,
either because of lack of jurisdiction or
refusal to assume jurisdiction over the
case; (2) assume jurisdiction over the
case and apply the internal law of the
forum; or (3) assume jurisdiction over
the case and take into account or apply
the law of some other State or States.
22

JOHANNES vs HARVEY
FACTS:
> Mrs. Carmen Theodora Johannes died
intestate in Singapore. Her immediate
family there remained the husband, B.
E. Johannes, the brothers, Frederick
Charles
D'Almeida
and
Alfred
D'Almeida, and the sister, Ida D'Almeida
Johannes. Of these, the husband, the
brother Frederick, and the sister Ida,
were residents of Singapore, while the
brother Alfred was in Manila. The
Singapore heirs apparently joined in
asking that letters of administration be
granted by the Supreme Court of
Singapore to B. E. Johannes, the lawful
husband of the deceased.
> Under the British law, it would seem
that the husband is entitled to the whole
of the estate of his wife if she die
intestate to the exclusive of any other
next of kin.
> The brother Alfred D' Almeida was, on
his petition, appointed administrator of
the Manila estate of the deceased. The
sum of money appears, was on deposit
in the Manila banks under and by virtue
of guardianship proceedings for the late
Carmen Theodora Johannes, which
were finally terminated by the discharge
of the guardian, the Philippine Trust
Company.

ISSUE:
Whether or not the Honorable
George R. Harvey, as judge of First
Instance of the City of Manila, has acted
in excess of his jurisdiction in appointing
Alfred D'Almeida administrator of the
funds of the estate on deposit in the
Philippines?

RULING:
NO. Relators pray that the
administration in the jurisdiction is
unnecessary, pray the court to annul the

appointment and to have placed to the

credit of B. E. Johannes as administrator
of the estate of Carmen Theodora
Johannes.
It is often necessary to have more than
one administration of an estate. When a
person dies intestate owning property in
the country of his domicile as well as in
a foreign country, administration is had
in both countries. That which is granted
in the jurisdiction of decedent's last
domicile is termed the principal
administration,
while
any
other
administration is termed the ancillary
administration.
The ancillary administration is proper,
whenever a person dies, leaving in a
country other than that of his las
domicile, property to be administered in
the nature of assets of the decedent,
liable for his individual debts or to be
distributed among his heirs.
The principal administration in this
instance is that at the domicile of the
late Carmen Theodora Johannes in
Singapore. What is sought in the
Philippine Islands is an ancillary
administration
subsidiary
to
the
domiciliary administration.
The proper course of procedure would
be for the ancillary administrator to pay
the claims of creditors, if there be any,
settle the accounts, and remit the
surplus to the domiciliary jurisdiction, for
distribution among the next of kin. Such
administration appears to be required in
this jurisdiction, which permit of the
settlement of certain estates without
legal proceedings, have not been met.

It is almost a universal rule to give the

surviving spouse a preference when an
administrator is to be appointed, unless
for strong reasons it is deemed
advisable to name someone else.

23

As we reach the conclusion that the

Court of First Instance has not acted in
excess of its jurisdiction.

REPUBLIC vs ORBECIDO III

Given a valid marriage between two
Filipino citizens, where one party is later
naturalized as a foreign citizen and
obtains a valid divorce decree
capacitating him or her to remarry, can
the Filipino spouse likewise remarry
under Philippine law?
FACTS:
Cipriano Orbecido III married Lady
Myros M. Villanueva at the United
Church of Christ in the Philippines in
Lam-an, Ozamis City on May 24, 1981.
Their marriage was blessed with a son
and a daughter, Kristoffer Simbortriz V.
Orbecido and Lady Kimberly V.
Orbecido.
In 1986, Ciprianos wife left for the
United States bringing along their son
Kristoffer. A few years later, Cipriano
discovered that his wife had been
naturalized as an American citizen.
Sometime in 2000, Cipriano learned
from his son that his wife had obtained a
divorce decree and then married a
certain Innocent Stanley and that her
wife, Stanley and her child currently live
in California.
Cipriano thereafter filed with the trial
court a petition for authority to remarry
invoking Paragraph 2 of Article 26 of the
Family Code. No opposition was filed.
Finding merit in the petition, the court
granted the same. The Republic, herein
petitioner, through the Office of the
Solicitor
General
(OSG),
sought
reconsideration but it was denied.
The
Solicitor
General
assails
the Decision of the Regional Trial Court
of Molave, Zamboanga del Sur, and its
Resolution denying the motion for
reconsideration. The lower court a
quo had declared that Cipriano Orbecido
III is capacitated to remarry.
24

The OSG contends that Paragraph 2 of

Article 26 of the Family Code is not
applicable to the instant case because it
only applies to a valid mixed marriage;
that is, a marriage celebrated between a
Filipino citizen and an alien. The proper
remedy, according to the OSG, is to file
a petition for annulment or for legal
separation. Furthermore,
the
OSG
argues there is no law that governs
respondents situation. The OSG posits
that this is a matter of legislation and not
of judicial determination.
Orbecido admits that Article 26 is not
directly applicable to his case but insists
that when his naturalized alien wife
obtained a divorce decree which
capacitated her to remarry, he is
likewise capacitated by operation of law
pursuant to Section 12, Article II of the
Constitution.
ISSUE:
WHETHER
OR
NOT
RESPONDENT
CAN
REMARRY
UNDER THE ARTICLE 26 OF THE
FAMILY CODE OF THE PHILIPPINES?
RULING:
On its face, Art 26, par 2 of the Family
Code does not appear to govern the
situation presented by the case at hand.
It seems to apply only to cases where at
the time of the celebration of the
marriage, the parties are a Filipino
citizen and a foreigner. The instant case
is one where at the time the marriage
was solemnized, the parties were two
Filipino citizens, but later on, the wife
was naturalized as an American citizen
and subsequently obtained a divorce
granting her capacity to remarry, and
indeed she remarried an American
citizen while residing in the U.S.A.
Records of the proceedings of the
Family Code deliberations showed that
the intent of Paragraph 2 of Article 26,
according to Judge Alicia Sempio-Diy, a

member of the Civil Code Revision

Committee, is to avoid the absurd
situation where the Filipino spouse
remains married to the alien spouse
who, after obtaining a divorce, is no
longer married to the Filipino spouse.
The jurisprudential answer lies latent in
the 1998 case of Quita v. Court of
Appeals. In Quita, the parties were, as
in this case, Filipino citizens when they
got married. The wife became a
naturalized American citizen in 1954 and
obtained a divorce in the same year.
The Court therein hinted, by way
of obiter dictum, that a Filipino divorced
by his naturalized foreign spouse is no
longer married under Philippine law and
can thus remarry.
Thus, taking into consideration the
legislative intent and applying the rule of
reason, we hold that Paragraph 2 of
Article 26 should be interpreted to
include cases involving parties who, at
the time of the celebration of the
marriage were Filipino citizens, but later
on, one of them becomes naturalized as
a foreign citizen and obtains a divorce
decree. The Filipino spouse should
likewise be allowed to remarry as if
the other party were a foreigner at the
time of the solemnization of the
marriage. To rule otherwise would be
to sanction absurdity and injustice.
Where the interpretation of a statute
according to its exact and literal import
would lead to mischievous results or
contravene the clear purpose of the
legislature, it should be construed
according to its spirit and reason,
disregarding as far as necessary the
letter of the law. A statute may therefore
be extended to cases not within the
literal meaning of its terms, so long as
they come within its spirit or intent.
In view of the foregoing, we state
the twin elements for the application of
Paragraph 2 of Article 26 as follows:
1.
There is a valid
marriage that has been
25

2.

celebrated between a
Filipino citizen and a
foreigner; and
A valid divorce
is obtained abroad by
the
alien
spouse
capacitating him or her
to remarry.

The reckoning point is not the

citizenship of the parties at the time of
the celebration of the marriage, but
their citizenship at the time a valid
divorce is obtained abroad by the
alien spouse capacitating the latter to
remarry.

alleged
and
proved. Furthermore,
respondent must also show that the
divorce decree allows his former wife to
remarry as specifically required in Article
26. Otherwise, there would be no
evidence sufficient to declare that he is
capacitated to enter into another
marriage.

In this case, when Ciprianos wife was

naturalized as an American citizen,
there was still a valid marriage that has
been celebrated between her and
Cipriano. As fate would have it, the
naturalized alien wife subsequently
obtained a valid divorce capacitating her
to remarry. Clearly, the twin requisites
for the application of Paragraph 2 of
Article 26 are both present in this case.
Thus Cipriano, the divorced Filipino
spouse, should be allowed to remarry.

Nevertheless, we are unanimous in our

holding that Paragraph 2 of Article 26 of
the Family Code (E.O. No. 209, as
amended by E.O. No. 227), should be
interpreted to allow a Filipino citizen,
who has been divorced by a spouse
who had acquired foreign citizenship
and remarried, also to remarry.
However, considering that in the present
petition there is no sufficient evidence
submitted and on record, we are unable
to declare, based on respondents bare
allegations that his wife, who was
naturalized as an American citizen, had
obtained a divorce decree and had
remarried an American, that respondent
is now capacitated to remarry. Such
declaration could only be made properly
upon respondents submission of the
aforecited evidence in his favor.

However, we note that the records are

bereft of competent evidence duly
submitted by respondent concerning the
divorce decree and the naturalization of
respondents wife. It is settled rule that
one who alleges a fact has the burden of
proving it and mere allegation is not
evidence.

ACCORDINGLY, the petition by the

Republic
of
the
Philippines
is GRANTED.
The
assailed Decision dated May 15, 2002,
and Resolution dated July 4, 2002, of
the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23, are
hereby SET ASIDE.

Accordingly, for his plea to prosper,

respondent herein must prove his
allegation that his wife was naturalized
as an American citizen. Likewise,
before a foreign divorce decree can
be recognized by our own courts, the
party pleading it must prove the
divorce as a fact and demonstrate its
conformity to the foreign law allowing
it. Such foreign law must also be
proved as our courts cannot take
judicial notice of foreign laws. Like
any other fact, such laws must be
26

SAN LUIS vs SAN LUIS

FACTS:
The case involves the settlement of the
estate of Felicisimo San Luis. During his
lifetime Felicisimo contracted three
marriages. From the first marriage
contracted in 1942 he had six children,
two of whom are the petitioners in this
case. His first wife died in 1963 and his
second marriage to an American citizen
ended in the wife getting a divorce in
1971. In 1974 Felicismo married
Felicidad, the respondent in this case, in
the USA. They had no children but lived
together for 18 years until Felicismo died
in 1992.
After Felicisimos death, Felicidad
sought the dissolution of their conjugal
partnership assets and filed a petition for
letters of administration. The children of
Felicisimo from his first marriage
opposed this on the grounds that
Felicidad is only a mistress, the second
marriage to the American wife
subsisting. The petitioners claimed that
Article 26, Paragraph 2 of the Family
Code cannot be given retroactive effect
to validate the bigamous marriage
because it would impair the vested
rights of Felicisimos legitimate children
(Article 256 of the Family Code).
ISSUE:
WON respondent Felicidad have
legal capacity to file the petition for
letters of administration?

RULING:
YES. Even if the Court does not
apply Article 26, Par. 2 of the Family
Code, there is sufficient jurisprudential
basis in the case of Van Dorn v. Romillo,
Jr. where it was held that a Filipino
spouse should no longer be considered
married if the alien spouse validly
obtains a divorce outside of the

Philippines. [Remember that in Van

Dorn the Court applied the nationality
principle in Article 15 of the Civil Code]
Indeed, in cases like Quita v. Dandan
and Republic v. Orbecido III it was
pointed out that Par. 2, Article 26 of the
Family Code traces its origins to the
ruling in Van Dorn. However, since
Felicidad failed to present the necessary
evidence to prove the divorce decree
(recall Garcia v. Recio: copy of the law,
final decree of absolute divorce) as well
as her marriage solemnized in
California, the case is remanded to the
trial court for further reception of
evidence.
Even assuming that Felicisimo was
not capacitated to marry Felicidad,
Felicidad still has legal personality to file
the petition for letters of administration,
as she may be considered the co-owner
of the properties that were acquired
through their joint efforts during their
cohabitation. Sec. 2, Rule 79 provides
(in part) that a petition for letters of
administration must be filed by an
interested person. Felicidad qualifies as
an interested person with direct interest
in the estate of Felicisimo by virtue of
their 18-year cohabitation. If she proves
the validity of the divorce but fails to
prove her marriage, she may be
considered a co-owner under Article 144
of the Civil Code. If she fails to prove the
validity of both the divorce and the
marriage, Article 148 of the Family Code
would apply. Article 148 states that
couples who are incapacitated to marry
but still live together as husband and
wife have co-ownership over properties
acquired during their cohabitation in
proportion
to
their
respective
contributions.
*Note: There is another issue raised
here, but I dont think Maam will care
about it. Felicidad filed the petition for
letters of administration in Makati.
Petitioners claimed it should have been
filed in Laguna, where the deceased
was governor, interpreting residence
27

as domicile. The SC did not uphold

this, interpreting resides in Sec. 1,
Rule 73 of the Rules of Court to mean
actual or physical habitation of a
person, not legal residence or domicile.

PHILSEC vs CA
FACTS:
Private respondent Ducat obtained
separate loans from petitioners Ayala
International Finance Limited (AYALA)
and
Philsec
Investment
Corp
(PHILSEC), secured by shares of stock
owned by Ducat.
In order to facilitate the payment of the
loans, private respondent 1488, Inc.,
through its president, private respondent
Daic, assumed Ducats obligation under
an Agreement, whereby 1488, Inc.
executed a Warranty Deed with
Vendors Lien by which it sold to
petitioner
Athona
Holdings,
N.V.
(ATHONA) a parcel of land in Texas,
U.S.A., while PHILSEC and AYALA
extended a loan to ATHONA as initial
payment of the purchase price. The
balance was to be paid by means of a
promissory note executed by ATHONA
in favor of 1488, Inc. Subsequently,
upon their receipt of the money from
1488, Inc., PHILSEC and AYALA
released Ducat from his indebtedness
and delivered to 1488, Inc. all the shares
of stock in their possession belonging to
Ducat.
As ATHONA failed to pay the interest on
the balance, the entire amount covered
by the note became due and
demandable.
Accordingly,
private
respondent 1488, Inc. sued petitioners
PHILSEC, AYALA, and ATHONA in the
United States for payment of the
balance and for damages for breach of
contract and for fraud allegedly
perpetrated
by
petitioners
in
misrepresenting the marketability of the
shares of stock delivered to 1488, Inc.
under the Agreement.
While the Civil Case was pending in the
United States, petitioners filed a
complaint For Sum of Money with
Damages and Writ of Preliminary
Attachment against private respondents
28

in the RTC Makati. The complaint

reiterated the allegation of petitioners in
their respective counterclaims in the
Civil Action in the United States District
Court of Southern Texas that private
respondents committed fraud by selling
the property at a price 400 percent more
than its true value.
Ducat moved to dismiss the Civil Case
in the RTC-Makati on the grounds of (1)
litis pendentia, vis-a-vis the Civil Action
in the U.S., (2) forum non conveniens,
and (3) failure of petitioners PHILSEC
and BPI-IFL to state a cause of action.

philippine public policy required the

assumption, not the relinquishment, by
the trial court of its rightful jurisdiction in
the civil action for there is every reason
to protect and vindicate petitioners'
rights for tortious or wrongful acts or
conduct private respondents (who are
mostly non-resident aliens) inflicted
upon them here in the Philippines?

RULINGS:

ISSUES:

First. NO. Petitioners' contention is

meritorious. While this Court has given
the effect of res judicata to foreign
judgments in several cases, it was after
the parties opposed to the judgment had
been given ample opportunity to repel
them on grounds allowed under the law.
It is not necessary for this purpose to
initiate a separate action or proceeding
for enforcement of the foreign judgment.
What is essential is that there is
opportunity to challenge the foreign
judgment, in order for the court to
properly determine its efficacy. This is
because in this jurisdiction, with respect
to actions in personam, as distinguished
from actions in rem, a foreign judgment
merely constitutes prima facie evidence
of the justness of the claim of a party
and, as such, is subject to proof to the
contrary. 9 Rule 39, Section 50
provides:

Whether or not the doctrine of

pendency of another action between the
same parties for the same cause (litis
pendentia) relied upon by the court of
appeals in affirming the trial court's
dismissal of the civil action is
applicable?

Sec. 50.Effect of foreign judgments.

The effect of a judgment of a tribunal
of a foreign country, having jurisdiction
to pronounce the judgment is as follows:
(a)In case of a judgment upon a specific
thing, the judgment is conclusive upon
the title to the thing;

Whether or not the principle of

forum non conveniens also relied upon
by the court of appeals in affirming the
dismissal by the trial court of the civil
action is likewise applicable?

(b)In case of a judgment against a

person, the judgment is presumptive
evidence of a right as between the
parties and their successors in interest
by a subsequent title; but the judgment
may be repelled by evidence of a want
of jurisdiction, want of notice to the

The trial court granted Ducats MTD,

stating
that
the
evidentiary
requirements of the controversy may be
more suitably tried before the forum of
the litis pendentia in the U.S., under the
principle in private international law of
forum non conveniens, even as it noted
that Ducat was not a party in the U.S.
case.
Petitioners appealed to the CA, arguing
that the trial court erred in applying the
principle of litis pendentia and forum non
conveniens.
The CA affirmed the dismissal of Civil
Case against Ducat, 1488, Inc., and
Daic on the ground of litis pendentia.

Whether or not the court of

appeals erred in not holding that

29

party, collusion, fraud, or clear mistake

of law or fact.
Second. Nor is the trial court's refusal to
take cognizance of the case justifiable
under the principle of forum non
conveniens. First, a motion to dismiss is
limited to the grounds under Rule 16,
1, which does not include forum non
conveniens. The propriety of dismissing
a case based on this principle requires a
factual determination, hence, it is more
properly considered a matter of defense.
Second, while it is within the discretion
of the trial court to abstain from
assuming jurisdiction on this ground, it
should do so only after "vital facts are
established, to determine whether
special circumstances" require the
court's desistance.

Order of the trial court dated April 20,

1987.

In this case, the trial court abstained

from taking jurisdiction solely on the
basis of the pleadings filed by private
respondents in connection with the
motion to dismiss. It failed to consider
that one of the plaintiffs (PHILSEC) is a
domestic corporation and one of the
defendants (Ventura Ducat) is a Filipino,
and that it was the extinguishment of the
latter's debt which was the object of the
transaction under litigation. The trial
court arbitrarily dismissed the case even
after finding that Ducat was not a party
in the U.S. case.
Third. It was error we think for the Court
of Appeals and the trial court to hold that
jurisdiction over 1488, Inc. and Daic
could not be obtained because this is an
action in personam and summons were
served by extraterritorial service. Rule
14 on extraterritorial service provides
that service of summons on a nonresident defendant may be effected out
of the Philippines by leave of Court
where, among others, "the property of
the defendant has been attached within
the Philippines." It is not disputed that
the properties, real and personal, of the
private respondents had been attached
prior to service of summons under the
30

NORTHWEST AIRLINES vs CA
FACTS:
Northwest
Orient
Airlines,
Inc.
(hereinafter NORTHWEST),
a
corporation organized under the laws of
the State of Minnesota, U.S.A., sought
to enforce a Judgment by a Japanese
Court in their favor against Sharp &
Company, a corporation incorporated in
the Philippines.
Northwest Airlines and Sharp, through
its Japan branch, entered into an
International Passenger Sales Agency
Agreement, authorizing SHARP to sell
its air transportation tickets. Unable to
remit the proceeds of the ticket sales
Northwest Airlines sued defendant in
Tokyo, Japan, for collection of the
unremitted proceeds of the ticket sales,
with claim for damages.
A writ of summons was issued and the
attempt to serve the summons was
unsuccessful. After the two unsuccessful
attempts of service, the Tokyo District
Court decided to have the complaint and
the writs of summons served at the head
office of the defendant in Manila. The
Director of the Tokyo District Court
requested the Supreme Court of Japan
to serve the summons through
diplomatic
channels
upon
the
defendant's head office in Manila.
Sharp received from Deputy Sheriff
Rolando Balingit the writ of summons.
Despite receipt of the same, defendant
failed to appear at the scheduled
hearing. Thus, the Tokyo Court
rendered judgment in favor of Northwest
Airlines.
Plaintiff was unable to execute the
decision in Japan, hence, a suit for
enforcement of the judgment was filed
by plaintiff before the Regional Trial
Court of Manila.

Defendant averred that the judgment of

the Japanese Court sought to be
enforced is null and void and
unenforceable in this jurisdiction having
been rendered without due and proper
notice to the defendant and/or with
collusion or fraud and/or upon a clear
mistake of law and fact
The trial rendered a Decision in favor of
Sharp stating that:
The foreign judgment in the Japanese
Court sought in this action is null and
void for want of jurisdiction over the
person of the defendant considering that
this is an action in personam; the
Japanese Court did not acquire
jurisdiction over the person of the
defendant
because
jurisprudence
requires that the defendant be served
with summons in Japan in order for the
Japanese Court to acquire jurisdiction
over it, the process of the Court in Japan
sent to the Philippines which is outside
Japanese jurisdiction cannot confer
jurisdiction over the defendant in the
case before the Japanese Court of the
case at bar. This Court agrees that if the
defendant in a foreign court is a resident
in the court of that foreign court such
court could acquire jurisdiction over the
person of the defendant but it must be
served upon the defendant in the
territorial jurisdiction of the foreign court.
In its decision, the Court of Appeals
sustained the trial court. It agreed with
the latter in its reliance upon Boudard
vs.Tait wherein it was held that "the
process of the court has no
extraterritorial effect and no jurisdiction
is acquired over the person of the
defendant by serving him beyond the
boundaries of the state."
Unable to obtain a reconsideration of the
decision, NORTHWEST elevated the
case to this Court contending that the
respondent court erred in holding that
SHARP was not a resident of Japan and
31

that summons on SHARP could only be

validly served within that country.

ISSUE:
Whether a Japanese court can
acquire jurisdiction over a Philippine
corporation doing business in Japan by
serving summons through diplomatic
channels on the Philippine corporation
at its principal office in Manila after prior
attempts to serve summons in Japan
had failed?

RULING:
A foreign judgment is presumed to be
valid and binding in the country from
which it comes, until the contrary is
shown. It is also proper to presume the
regularity of the proceedings and the
giving of due notice therein.
Under Section 50, Rule 39 of the Rules
of Court, a judgment in an action in
personam of a tribunal of a foreign
country having jurisdiction to pronounce
the same is presumptive evidence of a
right as between the parties and their
successors-in-interest by a subsequent
title. The judgment may, however, be
assailed by evidence of want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law
or fact. Also, under Section 3 of Rule
131, a court, whether of the Philippines
or elsewhere, enjoys the presumption
that it was acting in the lawful exercise
of jurisdiction and has regularly
performed its official duty.
Consequently, the party attacking a
foreign judgment has the burden of
overcoming the presumption of its
validity. Being the party challenging the
judgment rendered by the Japanese
court, SHARP had the duty to
demonstrate the invalidity of such
judgment.

It is settled that matters of remedy

and procedure such as those relating
to the service of process upon a
defendant are governed by the lex
fori or the internal law of the
forum. In this case, it is the procedural
law of Japan where the judgment was
rendered that determines the validity of
the extraterritorial service of process on
SHARP. As to what this law is is a
question of fact, not of law. It may not be
taken judicial notice of and must be
pleaded and proved like any other
fact. Sections 24 and 25, Rule 132 of the
Rules of Court provide that it may be
evidenced by an official publication or by
a duly attested or authenticated copy
thereof. It was then incumbent upon
SHARP to present evidence as to what
that Japanese procedural law is and to
show that under it, the assailed
extraterritorial service is invalid. It did
not. Accordingly, the presumption of
validity and regularity of the service of
summons and the decision thereafter
rendered by the Japanese court must
stand.
Alternatively in the light of the
absence
of
proof
regarding
Japanese law, the presumption of
identity or similarity or the so-called
processual presumption 10 may be
invoked. Applying it, the Japanese law
on the matter is presumed to be similar
with the Philippine law on service of
summons on a private foreign
corporation doing business in the
Philippines. Section 14, Rule 14 of the
Rules of Court provides that if the
defendant is a foreign corporation doing
business in the Philippines, service may
be made: (1) on its resident agent
designated in accordance with law for
that purpose, or, (2) if there is no such
resident agent, on the government
official designated by law to that effect;
or (3) on any of its officers or agents
within the Philippines.
If the foreign corporation has designated
an agent to receive summons, the
32

designation is exclusive, and service of

summons is without force and gives the
court no jurisdiction unless made upon
him.

was valid not only under the processual

presumption but also because of the
presumption of regularity of performance
of official duty.

Where the corporation has no such

agent, service shall be made on the
government official designated by law,
to wit: (a) the Insurance Commissioner
in the case of a foreign insurance
company; (b) the Superintendent of
Banks, in the case of a foreign banking
corporation; and (c) the Securities and
Exchange Commission, in the case of
other foreign corporations duly licensed
to do business in the Philippines.
Whenever service of process is so
made, the government office or official
served shall transmit by mail a copy of
the summons or other legal proccess to
the corporation at its home or principal
office. The sending of such copy is a
necessary part of the service.

Private respondent C.F. SHARP L

COMPANY, INC. is ordered to pay to
NORTHWEST the amounts adjudged in
the foreign judgment subject of said
case, with interest thereon at the legal
rate from the filing of the complaint
therein until the said foreign judgment is
fully satisfied.

The domicile of a corporation belongs to

the state where it was incorporated. In a
strict technical sense, such domicile as
a corporation may have is single in its
essence and a corporation can have
only one domicile which is the state of
its creation.
Nonetheless, a corporation formed in
one-state may, for certain purposes, be
regarded a resident in another state in
which it has offices and transacts
business.
In as much as SHARP was admittedly
doing business in Japan through its four
duly registered branches at the time the
collection suit against it was filed, then in
the light of the processual presumption,
SHARP may be deemed a resident of
Japan, and, as such, was amenable to
the jurisdiction of the courts therein and
may be deemed to have assented to the
said courts' lawful methods of serving
process.
Accordingly, the extraterritorial service
of summons on it by the Japanese Court
33

HANG LUNG BANK vs SAULOG

FACTS:
Petitioner Hang Lung Bank, Ltd., which
was not doing business in the
Philippines, entered into two (2)
continuing guarantee agreements with
Cordova Chin San in Hongkong
whereby the latter agreed to pay on
demand all sums of money which may
be due the bank from Worlder
Enterprises to the extent of the total
amount of two hundred fifty thousand
Hongkong dollars (HK $250,000).
Worlder Enterprises having defaulted in
its payment, petitioner filed in the
Supreme Court of Hongkong a collection
suit against Worlder Enterprises and
Chin San. Summonses were allegedly
served upon Worlder Enterprises and
Chin San at their addresses in
Hongkong but they failed to respond
thereto.
Thereafter, petitioner through counsel
sent a demand letter to Chin San at his
Philippine address but again, no
response was made thereto. Hence, on
October 18, 1984, petitioner instituted in
the court below an action seeking "the
enforcement of its just and valid claims
against private respondent, who is a
local resident, for a sum of money based
on a transaction which was perfected,
executed and consummated abroad."

YES. In a long line of cases, this

Court has interpreted this last quoted
provision as not altogether prohibiting a
foreign corporation not licensed to do
business in the Philippines from suing or
maintaining an action in Philippine
courts. What it seeks to prevent is a
foreign corporation doing business in the
Philippines without a license from
gaining access to Philippine courts.
We even went further to say that a
foreign corporation not licensed to do
business in the Philippines may not be
denied the right to file an action in our
courts for an isolated transaction in this
country.
Since
petitioner
foreign
banking
corporation was not doing business in
the Philippines, it may not be denied the
privilege of pursuing its claims against
private respondent for a contract which
was entered into and consummated
outside the Philippines. Otherwise we
will be hampering the growth and
development of business relations
between Filipino citizens and foreign
nationals. Worse, we will be allowing the
law to serve as a protective shield for
unscrupulous Filipino citizens who have
business relationships abroad.

In his answer to the complaint, Chin San

raised as affirmative defenses: lack of
cause of action, incapacity to sue and
improper venue.

ISSUE:
Whether or not HLB has capacity
to sue?

RULING:
34

BELLIS vs BELLIS

children and, therefore,

heirs of the deceased.

compulsory

FACTS:
Amos G. Bellis, born in Texas, was "a
citizen of the State of Texas and of the
United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five
legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander
Bellis and Anna Bellis Allsman; by his
second wife, Violet Kennedy, who
survived him, he had three legitimate
children: Edwin G. Bellis, Walter S.
Bellis and Dorothy Bellis; and finally, he
had three illegitimate children: Amos
Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis
executed a will in the Philippines, in
which he directed that after all taxes,
obligations,
and
expenses
of
administration are paid for, his
distributable estate should be divided, in
trust, in the following order and manner:
(a) $240,000.00 to his first wife, Mary E.
Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after
the foregoing two items have been
satisfied, the remainder shall go to his
seven surviving children by his first and
second wives, namely: Edward A. Bellis,
Henry A. Bellis, Alexander Bellis and
Anna Bellis Allsman, Edwin G. Bellis,
Walter S. Bellis, and Dorothy E. Bellis, in
equal shares.
Subsequently, or on July 8, 1958, Amos
G. Bellis died a resident of San Antonio,
Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of
Manila on September 15, 1958.
On January 17, 1964, Maria Cristina
Bellis and Miriam Palma Bellis filed their
respective oppositions to the project of
partition on the ground that they were
deprived of their legitimes as illegitimate

After the parties filed their respective

memoranda
and
other
pertinent
pleadings, the lower court, on April 30,
1964, issued an order overruling the
oppositions
and
approving
the
executor's final account, report and
administration and project of partition.
Relying upon Art. 16 of the Civil Code, it
applied the national law of the decedent,
which in this case is Texas law, which
did not provide for legitimes.
Their
respective
motions
for
reconsideration having been denied by
the lower court on June 11, 1964,
oppositors-appellants appealed to this
Court to raise the issue of which law
must apply Texas law or Philippine
law.

ISSUE:
Whether or not the national law of
the deceased should determine the
successional rights of the illegitimate
children?

RULING:
YES. Article 16, par. 2, and Art.
1039 of the Civil Code, render
applicable the national law of the
decedent, in intestate or testamentary
successions, with regard to four items:
(a) the order of succession; (b) the
amount of successional rights; (e) the
intrinsic validity of the provisions of the
will; and (d) the capacity to succeed.
They provide that
ART. 16. Real property as well as
personal property is subject to the
law of the country where it is
situated.
35

However,
intestate
and
testamentary successions, both
with respect to the order of
succession and to the amount of
successional rights and to the
intrinsic validity of testamentary
provisions, shall be regulated by
the national law of the person
whose succession is under
consideration, whatever may be
the nature of the property and
regardless of the country wherein
said property may be found.
ART. 1039. Capacity to succeed is
governed by the law of the nation
of the decedent.
The parties admit that the decedent,
Amos G. Bellis, was a citizen of the
State of Texas, U.S.A., and that under
the laws of Texas, there are no forced
heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the
will and the amount of successional
rights are to be determined under Texas
law, the Philippine law on legitimes
cannot be applied to the testacy of
Amos G. Bellis.

MICIANO vs BRIMO
FACTS:
> The partition of the estate left by the
deceased Joseph G. Brimo is in
question in this case.
> The judicial administrator of this estate
filed a scheme of partition. Andre Brimo,
one of the brothers of the deceased,
opposed it. The court, however,
approved it.
> The appellant's opposition is based on
the fact that the partition in question puts
into effect the provisions of Joseph G.
Brimo's will which are not in accordance
with the laws of his Turkish nationality,
for which reason they are void.

ISSUE:
Whether or not the will is void?

RULING:
NO. Nevertheless, legal and
testamentary successions, in respect to
the order of succession as well as to the
amount of the successional rights and
the intrinsic validity of their provisions,
shall be regulated by the national law of
the person whose succession is in
question, whatever may be the nature of
the property or the country in which it
may be situated.
But the fact is that the oppositor did not
prove that said testimentary dispositions
are not in accordance with the Turkish
laws, inasmuch as he did not present
any evidence showing what the Turkish
laws are on the matter, and in the
absence of evidence on such laws, they
are presumed to be the same as those
of the Philippines.
The oppositor was granted ample
opportunity to introduce competent
evidence, we find no abuse of discretion
on the part of the court in this particular.
36

There is, therefore, no evidence in the

record that the national law of the
testator Joseph G. Brimo was violated in
the
testamentary
dispositions
in
question which, not being contrary to our
laws in force, must be complied with and
executed.
Therefore, the approval of the scheme
of partition in this respect was not
erroneous.
I am a Turkish citizen, this
citizenship having been conferred
upon me by conquest and not by
free choice. having resided for a
considerable length of time in the
Philippine
Islands
where
I
succeeded in acquiring all of the
property that I now possess, it is
my wish that the distribution of my
property
and
everything
in
connection with this, my will, be
made and disposed of in
accordance with the laws in force
in
the
Philippine
islands,
requesting all of my relatives to
respect this wish, otherwise, I
annul and cancel beforehand
whatever disposition found in this
will favorable to the person or
persons who fail to comply with
this request.

manner whatsoever, even should the

testator otherwise provide.
Said condition then, in the light of the
legal provisions above cited, is
considered unwritten, and the institution
of legatees in said will is unconditional
and consequently valid and effective
even as to the herein oppositor.
It results from all this that the second
clause of the will regarding the law
which shall govern it, and to the
condition imposed upon the legatees, is
null and void, being contrary to law.
All of the remaining clauses of said will
with all their dispositions and requests
are perfectly valid and effective it not
appearing that said clauses are contrary
to the testator's national law.
Therefore, the orders appealed from are
modified and it is directed that the
distribution of this estate be made in
such a manner as to include the herein
appellant Andre Brimo as one of the
legatees, and the scheme of partition
submitted by the judicial administrator is
approved in all other respects.

The institution of legatees in this will is

conditional, and the condition is that the
instituted legatees must respect the
testator's will to distribute his property,
not in accordance with the laws of his
nationality, but in accordance with the
laws of the Philippines.
The fact is, however, that the said
condition is void, being contrary to law,
for article 792 of the civil Code provides
the following:
Impossible
conditions
and
those
contrary to law or good morals shall be
considered as not imposed and shall not
prejudice the heir or legatee in any
37

AZNAR vs GARCIA
FACTS:
Edward S. Christensen, though born in
New York, migrated to California where
he resided and consequently was
considered a California Citizen for a
period of nine years to 1913. He came
to the Philippines where he became a
domiciliary until the time of his death.
However, during the entire period of his
residence in this country, he had always
considered himself as a citizen of
California.
In his will, executed on March 5, 1951,
he instituted an acknowledged natural
daughter, Maria Lucy Christensen as his
only heir but left a legacy of some
money in favor of Helen Christensen
Garcia who, in a decision rendered by
the Supreme Court had been declared
as an acknowledged natural daughter of
his. Counsel of Helen claims that under
Art. 16 (2) of the civil code, California
law should be applied, the matter is
returned back to the law of domicile, that
Philippine law is ultimately applicable,
that the share of Helen must be
increased in view of successional rights
of illegitimate children under Philippine
laws. On the other hand, counsel for
daughter Maria , in as much that it is
clear under Art, 16 (2) of the Mew Civil
Code, the national of the deceased must
apply, our courts must apply internal law
of California on the matter. Under
California law, there are no compulsory
heirs and consequently a testator should
dispose any property possessed by him
in absolute dominion.

Christensen Garcia said in effect that

there be two rules in California on the
matter.
1.
The conflict rule which should
apply to Californians outside the
California, and
2.
The internal Law which should
apply to California domiciles in
California.
The California conflict rule, found on Art.
946 of the California Civil code States
that if there is no law to the contrary in
the place where personal property is
situated, it is deemed to follow the
decree of its owner and is governed by
the law of the domicile.
Christensen being domiciled outside
California, the law of his domicile, the
Philippines is ought to be followed.
Wherefore, the decision appealed is
reversed and case is remanded to the
lower court with instructions that
partition be made as that of the
Philippine law provides.

ISSUE:
Whether Philippine Law or
California Law should apply?
RULING:
The Supreme Court deciding to grant
more successional rights to Helen
38

ESTATE OF BOHONAN vs BOHONAN

FACTS:
C.O. Bohanan was born in Nebraska
and therefore a citizen of that state.
Notwithstanding his long residence in
the Philippines, he continued and
remained to be a citizen of the United
States and of the state
of
his
pertinent
residence to
spend the
rest of his days in that state. His
permanent residence or domicile in the
United States depended upon his
personal intent or desire, and he
selected Nevada as his homicide and
therefore at the time of his death, he
was a citizen of that state.
The
oppositors, Magadalena
C.
Bohanan and her two children,
question
the
validity
of
the
executor/testator C.O. Bohanans last
will and testament, claiming that they
have been deprived ofthe legitimate that
the laws of the form concede to them.
Another, is the claim of the testator's
children, Edward and Mary Lydia
Bohanan, who had received legacies in
the amount of PHP 6, 000 each only,
and, therefore, have not been given their
shares in the estate which, in
accordance with the laws, should be
two-thirds of the estate left by the
testator.

ISSUE:
Whether or not the last will and
testament is valid?

RULING:
The first issue refers to the share that
the wife of the testator, Magdalena C.
Bohanan, should be entitled to receive.
The will has not given her any share in
the estate left by the testator. It is
argued that it was error for the trial court
to have recognized the Reno divorce

secured by the testator from his Filipino

wife Magdalena C. Bohanan, and that
said divorce should be declared a nullity
in this jurisdiction. The court refused to
recognize the claim of the widow on the
ground that the laws of Nevada, of
which the deceased was a citizen, allow
him to dispose of all of his properties
without requiring him to leave any
portion of his estate to his former (or
divorced) wife. No right to share in the
inheritance in favor of a divorced wife
exists in the State of Nevada, thus the
oppositor can no longer claim portion of
the estate left by the testator.
With regards the second issue, the old
Civil Code, which is applicable to this
case because the testator died in 1944,
expressly provides that successional
rights to personal property are to be
earned by the national law of the person
whose succession is in question, thus
the two-third rule is not enforceable.
Wherefore, the court finds that the
testator C. O. Bohanan was at the time
of his death a citizen of the United
States and of the State of Nevada and
declares that his will and testament is
fully in accordance with the laws of the
state of Nevada and admits the same to
probate.
As in accordance with Article 10 of the
old Civil Code, the validity of
testamentary dispositions are to be
governed by the national law of the
testator, and as it has been decided and
it is not disputed that the national law of
the testator is that of the State of
Nevada which allows a testator to
dispose of all his property according to
his will, as in the case at bar, the order
of the court approving the project of
partition made in accordance with the
testamentary provisions, must be, as it
is hereby affirmed, with costs against
appellants.

39

TUNG HO V. TING GUAN

FACTS:
Ting Guan Trading Corporation (TGTC),
a domestic corporation organized under
the laws of the Philippines, obligated
itself under a contract of sale to deliver
heavy metal scrap iron and steel to
Tung Ho Steel Enterprises (THSE), a
foreign corporation organized under the
laws of Taiwan, Republic of China.

cannot enforce the award in the

Philippines without violating public policy
as Taiwan is not a signatory to the New
York Convention.
The RTC denied the motion and ruled
that TGTC had voluntarily submitted to
the courts jurisdiction when it raised
other arguments apart from lack of
jurisdiction in its motion to dismiss.

ISSUE:
THSE filed a request for arbitration
before the ICC International Court of
Arbitration (ICC) in Singapore after
TGTC failed to deliver the full quantity of
the promised heavy metal scrap iron
and steel.
The ICC ruled in favor of THSE and
ordered TGTC to pay THSE.
THSE filed an action against TGTC for
the recognition and enforcement of the
arbitral award before the Regional Trial
Court (RTC) of Makati. TGTC moved to
dismiss the case based on THSE lack of
capacity to sue and for prematurity.
TGTC
subsequently
filed
a
supplemental motion to dismiss based
on improper venue. TGTC argued that
the complaint should have been filed in
Cebu where its principal place of
business was located.
The RTC denied TGTC motion to
dismiss.
TGTC moved to reconsider the order
and raised the RTCs alleged lack of
jurisdiction over its person as additional
ground for the dismissal of the
complaint.

Weather or not the RTC acquire

jurisdiction over Ting Guan?
RULING:
Tejero was not the proper person to
receive the summons. Nonetheless
there is no reason to disturb the lower
courts finding that Tejero was not a
corporate secretary and, therefore, was
not the proper person to receive the
summons under Section 11, Rule 14 of
the Rules of Court. This Court is not a
trier of facts; cannot re-examine, review
or re-evaluate the evidence and the
factual review made by the lower courts.
In the absence of compelling reasons, it
will not deviate from the rule that factual
findings of the lower courts are final and
binding on this Court. Moreover,
TinTGTC voluntarily appeared before
the trial court. However, the Court
cannot agree with the legal conclusion
that the appellate court reached, given
the established facts. To the Court mind,
TGTC voluntarily appeared before the
trial court in view of the procedural
recourse that it took before that court. Its
voluntary appearance is equivalent to
service of summons.

TGTC insisted that Ms. Fe Tejero, on

whom personal service was served, was
not its corporate secretary and was not
a person allowed under Section 11, Rule
14 of the Rules of Court to receive a
summons. It also asserted that Tung Ho
40