Verification
General Rule: Pleadings NEED NOT be under oath, verified or accompanied by affidavit.
Exception: when otherwise specifically required by law or rule. The follow pleadings must be verified:
Petition to take deposition before action;
Petition for relief from judgment;
Appeal by Certiorari from CA to SC;
Application for Preliminary Injunction or Temporary Restraining Order;
Application for Appointment of a Receiver;
Petition for Certiorari, Prohibition, or Mandamus;
All pleadings of forcible entry and unlawful detainer;
Petition for appointment of general guardian;
Petition of guardian for leave to sell or encumber property of estate;
Petition to declare competency of ward;
Application for Writ of habeas corpus;
Petition for change of name;
Petition for voluntary dissolution of corporation;
Petition to correct entries in civil registry;
Pleadings in Summary Procedure.
The following need not be verified but must be under oath:
Denial of genuineness and dues execution of actionable document;
Denial of allegations of usury;
Motion to set aside order of default;
Answer to written interrogatories;
Answer to request for admission.
Affidavit of merit or supporting affidavit is required in the following:
Motion for summary judgment or opposition thereto;
Motion for new trial;
Affidavit of third-party claim on levied property;
Proof required of redemptioner;
Complaint with prayer for preliminary attachment;
Affidavit of third-party claim on attached property;
Motion to dissolve preliminary injunction on ground of irreparable damage to movant while adverse party can be fully compensated
Complaint for replevin:
Claim against estate of decedent.
How pleading is verified
A pleading is verified by an affidavit
(3) that the affiant has read the pleading and
(4) that the allegations therein are true and correct of his personal knowledge or based on authentic records.
NOTE: A pleading required to be verified shall be treated as an unsigned pleading if it contains a verification
(4) based on “information and belief,”
(5) upon “knowledge, information and belief,” or
(6) lacks a proper verification Remedies
The court may order the correction of the pleading if lacking verification
The court may also acct on the pleading despite failure to properly verify if under the circumstances, strict
compliance with the rules may be dispensed with
The absence of verification may be corrected by requiring an oath.
Certification against forum shopping Forum shopping is the filing of multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief.
It is an act of malpractice
The same shall constitute direct contempt, a cause for administrative sanctions, as well as a ground for the summary dismissal of the case with prejudice.
The certification against forum shopping is a sworn statement by the plaintiff or principal party certifying in an initiatory pleading:
(d) that he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein;
(e) if there is such other pending action or claim, a complete statement of the present status thereof; and
(f) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
NOTE: The certification must be executed by the party NOT the counsel, unless the latter is authorized specifically to do so. A certification signed by the counsel is a defective certification and is a valid cause for dismissal.
BUT This rule must be liberally interpreted:
Failure of parties to sign because they were abroad may be a reasonable cause to exempt the parties from compliance with the requirement
Signing by one of the petitioners was held to be substantial compliance This requirement is mandatory in the filing of a complaint and other initiatory pleading, but it is NOT jurisdictional. The rule applies also to special civil actions.
Initiatory pleadings include (7) Original complaint;
(8) Permissive counterclaim;
(9) Cross-claim;
(10) Third (fourth, etc.)-party complaint;
(11) Complaint in intervention; and (12) Petition or application wherein
the party asserts his claim or relief.
NOTE: No certification required for a compulsory counterclaim since it is NOT an initiatory pleading.
Effect of failure to comply
(1) It shall NOT be curable by mere amendment of the complaint or other initiatory pleading.
(2) BUT it shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.
Effect of the submission of a false certification or non-compliance with any of the undertakings therein:
(1) Indirect contempt;
(2) Administrative and criminal actions.
Effect of willful and deliberate forum shopping by the party or his counsel:
(1) ground for summary dismissal with prejudice
(2) direct contempt, and
(3) a cause for administrative sanctions.
(Sec. 5, Rule 7)
How to determine existence of forum shopping The most important question is whether the elements of litis pendentia are present OR whether a final judgment in one case will result to res judicata.
The TEST is whether in the two or more cases pending, there is:
(d) identity of parties;
(e) identity of rights or causes of action, and
(f) identity of reliefs sought.
AO-AS v. CA
(491 SCRA 353, 2006)
If the forum shopping is not considered willful and deliberate, the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above.
However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice.
FACTS: The Lutheran Church in the Philippines (LCP) has local Lutheran congregations in three districts, managed by seven directors—two for
each district, and one as the national president. Three districts were added, thus a total of eleven (11) directors managed the LCP.
Controversies arose when the board of directors terminated the services of Eclesio Hipe, business mana45ger and corporate secretary.
The Ao-As group, former LCP directors and officers, filed SEC-SICD Case No. 3587 against the Batong group, the LCP directors at that time. The case sought accounting and damages, and appointment of a management committee. Its causes of action are: (a) non-liquidation and/or non-accounting of the P64,000 proceeds of the La Trinidad land transaction; (b) on-liquidation and/or unaccounting of P323,750 worth of cash advances; (c) dissipation of the P4.8M general fund; (d) non-registration of LCP’s land in Leyte; (e) severance of church-partnership with Lutheran Church-Missouri Synod; and (f) transfer of corporate books.
Several other cases were also instituted against the Batong group. An NLRC case questioned the board resolutions which terminated employees, a Civil Case questioned another board resolution authorizing the transfer of corporate records, and another SEC-SICD Case (No. 3524) questioned the legality of the 11 members of the LCP Board. Also, in another SEC Case (No. 3556), a motion was made to appoint a management committee.
This motion was denied since the same is an incident of SEC Case 3587.
After hearing in SEC Case 3587, the SEC-SICD ordered the creation of a management committee and declared all board resolutions passed by the LCP board void ab initio.
The CA, however, ruled that the Ao-As group were guilty of forum shopping.
ISSUE: Whether the Ao-As group is guilty of forum shopping
NO. The six grounds originally relied upon by the Ao-As group in SEC Case 3587 are entirely different from the causes of action in the NRLC, Civil, and the two other SEC cases. It is true that the causes of action in the latter cases were included as additional grounds in Case 3587 for the appointment of properties and assets of LCP which may have come into their possession during their incumbency as officers and/or directors of LCP. However, the creation of a management committee and the prayer for accounting could not have been asked for in the labor and forcible entry cases.
As regards the other SEC Cases, though, the Ao-As group could have indeed prayed for the creation of the management committee and the accounting of the funds of
the LCP. In fact, the petitioner in SEC-SICD Case No. 3556 had prayed for the appointment of a management committee in a motion which was subsequent to the filing of SEC-SICD Case No. 3857. SEC dismissed Case No. 3556 considering that it was one of the incidents of Case No. 3857. In effect, it was denied on the ground of litis pendentia.
However, this is not a case of willful and deliberate forum shopping and, hence, the Case No. 3857 should not be dismissed. The reason for this is the strict evidentiary requirement needed to grant a prayer to create a management committee. The SEC has the power to create a management committee when there is “imminent danger of dissipation, loss, wastage or destruction of assets or other properties or paralization of business operations” It should be difficult to deduce the
"imminent danger of dissipation, loss, wastage or destruction of assets or other properties"
from an allegation of a single act of previous misappropriation or dissipation on the part of the Batong group. It is often only when the previous misappropriations and dissipations have become extensive and out of control that it can be candidly said that there is an imminent danger of further dissipation. The Ao-As group cannot be faulted therefore for not praying for the creation of a management committee in the first couple of cases it filed with the SEC, and neither can they be faulted for using the causes of action in previously filed cases to prove their allegation of imminent dissipation. We cannot rule out the possibility that the danger of imminent dissipation of the corporate assets became apparent only in the acts of the respondents subsequent to the filing of the first two SEC cases.
As the present jurisprudence now stands, forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (litis pendentia); (2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (res judicata); and (3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata). If the forum shopping is not considered willful and deliberate, the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above. However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice.
Forum shopping certificate for a corporation
When plaintiff is a juridical person—this may be signed by the properly authorized persons.
PAL v. FASAP
(479 SCRA 605, 2006)
Only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation. In addition, proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition.
Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority.
FACTS: Flight Attendants and Stewards Association of the Philippines (FASAP) and Bhagwani filed a complaint for unfair labor practice, illegal suspension and illegal dismissal against PAL and some of its officers before the NLRC Labor Arbiter The Labor Arbiter upheld FASAP and Bhagwani and, ordered PAL to pay them damages. The NLRC modified the decision, setting aside the finding that PAL was guilty of unfair labor practice, but affirming the rest of the decision.
PAL filed a petition for certiorari with the CA, accompanied by a Certification of Non-Forum Shopping executed by Cesar Lamberte and Susan Del Carmen, VP Human Resources and Asst. VP Cabin Services of PAL, respectively, who are not parties to the case.
The certification was without proof that the two affiants had authority to sign in behalf of petitioners. The CA dismissed the case for failure to show the affiants’ authority to sign for PAL and for failure of the other petitioners to join in the execution of the certification. A motion for reconsideration was filed with a Secretary’s Certificate attached evidencing that affiants Lamberte and Del Carmen have been authorized by board resolution to initiate and/or cause to be filed on behalf of PAL petitions and pleadings in all labor-related cases.
A perusal of the Secretary’s Certificate submitted reveals that the authority to cause the filing of the petition was granted on February 15, 2000. The petition, on the other hand, was filed on January 24, 2000 and was dismissed by the CA on January 31, 2000.
As to the other petitioners, it was argued that they are mere nominal parties so that their failure to execute the certification
does not justify dismissal of the petition. CA denied the motion.
ISSUE: Whether the certification of non-forum shopping was properly executed
NO. The certification of non-forum shopping attached was without proof of authority to sign. When a motion for reconsideration was filed, a Secretary’s Certificate was submitted as proof that the board of directors of PAL had authorized the two to execute the certificate. Nonetheless, the Court finds that this belated submission is an insufficient compliance with the certification requirement.
The required certification must be valid at the time of filing of the petition. An invalid certificate cannot be remedied by the subsequent submission of a Secretary’s Certificate that vests authority only after the petition had been filed. At the time the certification was signed, Lamberte and Del Carmen were not duly authorized and, consequently, their signing and attestations were not in representation of PAL. This effectively translates to a petition that was filed without a certification at all as none was issued by PAL, the principal party to the case.
Rule 65, Section 1, in relation to Rule 46, Section 3 of the Rules of Court requires the certification of non-forum shopping to be executed by the corresponding petitioner or petitioners. As no distinction is made as to which party must execute the certificate, this requirement is made to apply to both natural and juridical entities. When the petitioner is a corporation, the certification should be executed by a natural person. Furthermore, not just any person can be called upon to execute the certification, although such a person may have personal knowledge of the facts to be attested to.
The power of a corporation to sue in any court is generally lodged with the board of directors, who can delegate the physical acts needed to sue, which may be performed only by natural persons, to its attorneys-in-fact by a board resolution, if not already authorized under the corporate by-laws. Thus, only individuals vested with authority by a valid board resolution may sign the certificate of non-forum shopping in behalf of a corporation.
In addition, proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority.
Filing and service defined
Filing—the act of presenting the pleading or other paper to the clerk of court
Service—the act of providing a party with a copy of the pleading or paper concerned.
If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court.
Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (Sec. 2, Rule 3) Coverage
This Rule governs
(1) the filing of all pleadings and other papers, and
(2) the service thereof
EXCEPT those for which a different mode of service is prescribed (Sec. 1, Rule 13)
Papers required to be filed and served—
(1) judgments, (2) resolutions, (3) orders,
(4) pleading subsequent to the complaint, (5) written motions,
(6) notices, (7) appearances, (8) demands,
(9) offers of judgment, or
(10) similar papers shall be filed with the court, and served upon the parties affected
(Sec. 4, Rule 13) Modes of service
There are two modes of service of pleadings, motions, orders, judgments and other papers:
(1) personally, or (2) by mail In general, filing
The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made
(1) Personally—
By presenting the original copies thereof, plainly indicated as such, personally to the clerk of court
• the clerk of court shall endorse on the pleading the date and hour of filing.
(2) By mail—
By sending them by registered mail.
• The date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. (Sec. 3, Rule 13)
In general, service
Service of pleadings, motions, notices, orders, judgments and other papers shall be made either
(1) personally or
(2) by mail. (Sec. 5, Rule 13)
Service of judgments, final orders, or resolutions.—Judgments, final orders or resolutions shall be served
(1) personally
(2) by registered mail, or
(3) by publication, at the expense of the prevailing party, in cases where a party was
a. summoned by publication, and b. has failed to appear in the
action. (Sec. 9, Rule 13) Personal
Personal service of the papers may be made (1) by delivering personally a copy to the
party or his counsel,
(2) by leaving it in his office with his clerk or with a person having charge thereof, or
(3) by leaving the copy, between 8am and 6pm, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein, in cases where
a. no person is found in his office, b. his office is not known, or c. he has no office, then. (Sec. 6,
Rule 13) Mail
Service by registered mail shall be made (1) by depositing the copy in the office, (2) in a sealed envelope,
(3) plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, (4) with postage fully prepaid, and
(5) with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered.
Service by ordinary mail may be done if no registry service is available in the locality of either the sender or the addressee (Sec. 7, Rule 13)
Substituted service
Substituted service is made if service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being
Substituted service is made if service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being