Asiavest Limited v CA; Antonio Heras (1998)

Antonio Heras (connected with Navegante Shipping Agency

LTD ) was sued on the basis of his personal guarantee of
the obligations of Copania Heranos de Navegacion S!A
by Asiavest before a Hong "ong court! The Hong "ong
Court ruled against hi and ordered payent of#
$S%&'(&)'*+,!-) or its e.uivalent in Hong "ong currency
plus interest/ interest on the su of $S%&',))!)) at 0!(1,2
per annu/ H"%0),!)) at fi3ed cost in the action/ and at
least %()')))!)) representing attorney4s fees' litigation
e3penses and cost' with interest thereon fro the date of
the 5udgent until fully paid!
To enforce the 5udgent here' Asiavest Liited filed a
coplaint on Deceber 6' &0(1 before the 7TC of 8ue9on
City!
Defendant filed his Answer! He raised the defense that the
Hong "ong court never ac.uired 5urisdiction over his
person! :n pre;trial' they stipulated the following#
&! The defendant adits the e3istence of the
5udgent dated Deceber *(' &0(- as well as its
aendent dated April &6' &0(1' but not
necessarily the authenticity or validity thereof/
*! The plaintiff is not doing business and is not
licensed to do business in the <hilippines/
6! The residence of defendant' Antonio Heras' is New
=anila' 8ue9on City!
He presented * witnesses# >ortunata dela ?ega and 7ussel
@arren Lousich!
>ortunata testified that no writ of suons or copy of a
stateent of clai of Asiavest Liited was ever served in
the office of the Navegante Shipping Agency Liited andAor
for =r! Antonio Heras' and that no service of the writ of
suons was either served on the defendant at his
residence in New =anila' 8ue9on City!
Lousich testified was presented as an e3pert on the laws of
Hong "ong! He testified that#
The defendant was sued on the basis of his personal
guarantee of the obligations of Copania Heranos de
Navegacion S!A! There is no record that a writ of suons
was served on the person of the defendant in Hong "ong'
or that any such attept at service was ade!
a) The writ of suons or clai can be served by the
solicitor (lawyer) of the claiant or plaintiff! Bn Hong
"ong there are no Court personnel who serve writs
of suons andAor ost other processes!
b) Bf the writ of suons or clai (or coplaint) is not
contested' the claiant or the plaintiff is not
re.uired to present proof of his clai or coplaint
nor present evidence under oath of the clai in
order to obtain a Cudgent!
c) There is no legal re.uireent that such a Cudgent
or decision rendered by the Court in Hong "ong DtoE
aFe a recitation of the facts or the law upon which
the clai is based!
d) d) There is no necessity to furnish the defendant
with a copy of the Cudgent or decision rendered
against hi!
e) e) Bn an action based on a guarantee' there is no
established legal re.uireent or obligation under
Hong "ong laws that the creditor ust first bring
proceedings against the principal debtor! The
creditor can iediately go against the guarantor!
:n cross' he testified#
&! That the Hong "ong court authori9ed service of
suons on HG7AS outside of its 5urisdiction'
particularly in the <hilippines!
*! He aditted also the e3istence of an affidavit of
one Cose 7! >ernande9 of the Sycip Sala9ar
Hernande9 H Iataitan law fir stating that
>ernande9 served suons on HG7AS on &6
Noveber &0(- at No! +' &st St!' 8ue9on City' by
leaving a copy with HG7AS4s son;in;law Dionisio
Lope9!
:n redirect e3aination' Lousich declared that such service
of suons would be valid under Hong "ong laws
provided that it was in accordance with <hilippine laws!
The trial court ordered hi to pay the aount in the Hong
"ong 5udgent! Bt held that since the Hong "ong court
5udgent had been duly proved' it is a presuptive
evidence of a right as between the parties/ hence' the party
ipugning it had the burden to prove want of 5urisdiction
over his person! HG7AS failed to discharge that burden!
Heras appealed to the CA! The CA REVERSED the 7TCJs
decision! It held that a forein !"dment does not of
itself have an# e$traterritorial a%%li&ation' (or it to )e
iven effe&t* the forein tri)"nal sho"ld have a&+"ired
!"risdi&tion over the %erson and the s")!e&t matter' If
s"&h tri)"nal has not a&+"ired !"risdi&tion* its
!"dment is void'
The CA agreed with HG7AS that Knotice sent outside the
state to a non;resident is unavailing to give 5urisdiction in an
action against hi %ersonall# for oney recovery!K
Suons should have been %ersonall# served on HG7AS
in Hong "ong' for' as claied by ASBA?GST' HG7AS was
physically present in Hong "ong for nearly &- years! Since
there was not even an attept to serve suons on
HG7AS in Hong "ong' the Hong "ong Supree Court did
not ac.uire 5urisdiction over HG7AS! Nonetheless' it did not
totally foreclose the clai of ASBA?GST
BssuesAHeld
&! @hat law applies in this caseL
<hilippine laws based on the doctrine of processual
presuption!
,atters of remed# and %ro&ed"re s"&h as those
relatin to the servi&e of %ro&ess "%on the defendant
are overned )# the le$ fori or the la- of the for"m* i'e'*
the la- of Hon .on in this &ase'
/he testimon# of an e$%ert -itness* Lo"si&h in this
&ase* ma# )e allo-ed to %rove a forein la-' There is'
however' nothin in the testimon# of ,r' Lo"si&h that
to"&hed on the s%e&ifi& la- of Hon .on in res%e&t of
servi&e of s"mmons either in a&tions in rem or in
%ersonam' and -here the defendant is either a resident
or nonresident of Hon .on' Bn view of the absence of
proof of the Hong "ong law on this particular issue' the
presuption of identity or siilarity or the so;called
<7:CGSS$AL <7GS$=<TB:N shall coe into play! Bt will
thus be %res"med that the Hon .on la- on the matter
is similar to the 0hili%%ine la-'
*! @hat Find of action was involved in this caseL
An action in persona! Bn the case at bar' the action filed in
Hong "ong against HG7AS was in %ersonam' since it was
based on his personal guarantee of the obligation of the
principal debtor! An a&tion in %ersonam is an a&tion
aainst a %erson on the )asis of his %ersonal lia)ilit#!
In an a&tion in %ersonam* !"risdi&tion over the %erson
of the defendant is ne&essar# for the &o"rt to validl# tr#
and de&ide the &ase' Curisdiction over the person of a
resident defendant who does not voluntarily appear in
court can be ac.uired by personal service of suons as
provided under Section 1' 7ule &- of the 7ules of Court! Bf
he cannot be personally served with suons within a
reasonable tie' substituted service ay be ade in
accordance with Section ( of said 7ule! Bf he is teporarily
out of the country' any of the following odes of service
ay he resorted to# (&) substituted service set forth in
Section (/ (*) personal service outside the country' with
leave of court/ (6) service by publication also with leave of
court/ or (-) any other anner the court ay dee
sufficient!
Ho-ever* in an a&tion in %ersonam -herein the
defendant is a non-resident -ho does not vol"ntaril#
s")mit himself to the a"thorit# of the &o"rt* %ersonal
servi&e of s"mmons -ithin the state is essential to the
a&+"isition of !"risdi&tion over her %erson' (Moudart v!
Tait' +1 <hil! &1)' &1-;&1, & D&060E!)
This ethod of service is possible if such defendant is
physically present in the country! Bf he is not found therein'
the court cannot ac.uire 5urisdiction over his person and
therefore cannot validly try and decide the case against
hi! An e3ception was laid down in Ieperle v! SchenFer
wherein a non;resident was served with suons through
his wife' who was a resident of the <hilippines and who was
his representative and attorney;in;fact in a prior civil case
filed by hi/ oreover' the second case was a ere
offshoot of the first case!
6! Bs Heras a resident of Hong "ong or a resident of
the <hilippinesL
7esident of the <hilippines! >ortunata testified that HG7AS
was the <resident and part owner of a shipping copany in
Hong "ong! He had Kbusiness coitents' undertaFings'
conferences' and appointents until :ctober &0(- when he
left Hong "ong for good!K
HG7AS argued that the lacF of 5urisdiction over his person
was corroborated by ASBA?GST4s allegation in the
coplaint that he Khas his residence at No! +' &st St!' New
=anila' 8ue9on City' <hilippines!K He then concluded that
such Cudicial adission aounted to evidence that he was
and is not a resident of Hong "ong!
Significantly' in the pre;trial conference' the parties cae
up with stipulations of facts' aong which was that Kthe
residence of defendant' Antonio Heras' is New =anila'
8ue9on City!K
@e therefore conclude that the stipulated fact that HG7AS
Kis a resident of New =anila' 8ue9on City' <hilippinesK
refers to his residence at the tie 5urisdiction over his
person was being sought by the Hong "ong court!
1' 2hether s"mmons -as %ro%erl# and validl#
served on HERAS'
No! Sin&e HERAS -as not a resident of Hon .on and
the a&tion aainst him -as* indis%"ta)l#* one in
%ersonam* s"mmons should have )een %ersonall#
served on him in Hon .on' /he e$traterritorial
servi&e in the 0hili%%ines -as therefore invalid and did
not &onfer on the Hon .on &o"rt !"risdi&tion over his
%erson' Bt follows that the Hong "ong court 5udgent
cannot be given force and effect here in the <hilippines for
having been rendered without 5urisdiction!
Gven assuing that HG7AS was forerly a resident of
Hong "ong' he was no longer so in Noveber &0(- when
the e3traterritorial service of suons was attepted to be
ade on hi! As declared by his secretary' which
stateent was not disputed by ASBA?GST' HG7AS left
Hong "ong in :ctober &0(- Kfor good!K His absence in
Hong "ong ust have been the reason why suons was
not served on hi therein/ thus' ASBA?GST was
constrained to apply for leave to effect service in the
<hilippines' and upon obtaining a favorable action on the
atter' it coissioned the Sycip Sala9ar Hernande9 H
Iataitan law fir to serve the suons here in the
<hilippines!
HERAS* -ho -as also an a)sentee* sho"ld have )een
served -ith s"mmons in the same manner as a non3
resident not fo"nd in Hon .on' Se&tion 14* R"le 11 of
the R"les of Co"rt %rovidin for e$traterritorial servi&e
-ill not a%%l# )e&a"se the s"it aainst him -as in
%ersonam' Neither can we apply Section &(' which allows
e3traterritorial service on a resident defendant who is
teporarily absent fro the country' because the
undisputed fact reains that he left Hong "ong not only
KteporarilyK but Kfor good!K
A/CI* ,ALIA 5' I.DAL and ,I6IS/R7 8( 09:LIC
HEAL/H3.92AI/ v E&hin (;<1<)
Cosefina Gchin was hired by ATCB :verseas Corporation in
behalf of its principal' the =inistry of <ublic Health of "uwait
for the position of edical technologist under a two;year
contract' denoinated as a =eorandu of Agreeent
(=:A)' with a onthly salary of $S%&'*))!))!
$nder the =:A' all newly;hired eployees undergo a
probationary period of one (&) year and are &overed )#
."-ait=s Civil Servi&e :oard Em%lo#ment Contra&t 6o'
;' Gchin was deployed on >ebruary &1' *))) but was
terinated fro eployent on >ebruary &&' *))&' she not
having allegedly passed the probationary period!
:n Culy *1' *))&' she filed with the NL7C a coplaint for
illegal disissal against ATCB' BFdal and the =inistry!
The LA held that she was illegally disissed and
accordingly ordered the to pay her $S%6'+))!))'
representing her salary for the three onths une3pired
portion of her contract! This was affired by the NL7C!
They appealed to the CA' contending that their principal'
the =inistry' being a foreign governent agency' is iune
fro suit and' as such' the iunity e3tended to the/ and
that Gchin was validly disissed for her failure to eet the
perforance rating within the one;year period as re.uired
under "uwait4s Civil Service Laws and that BFdal should not
be liable as an officer of ATCB!
The CA sustained the NL7CJs decision! A%%l#in
0hili%%ines la-s' it held that under the law* a %rivate
em%lo#ment aen&# shall ass"me all res%onsi)ilities
for the im%lementation of the &ontra&t of em%lo#ment
of an overseas -or>er* hen&e* it &an )e s"ed !ointl# and
severall# -ith the forein %rin&i%al for any violation of the
recruitent agreeent or contract of eployent!
As to BFdal4s liability' the appellate court held that under
Sec! &) of 7epublic Act No! ()-*' the K=igrant and
:verseas >ilipinos4 Act of &00,'K corporate officers'
directors and partners of a recruitent agency ay
theselves be 5ointly and solidarily liable with the
recruitent agency for oney clais and daages
awarded to overseas worFers!
Bn this petition' they raised these defenses#
&! That they should not be held liable because
respondent4s eployent contract specifically stipulates
that her eployent shall )e overned )# the Civil
Servi&e La- and Re"lations of ."-ait' They thus
conclude that it was patent error for the labor tribunals and
the appellate court to apply the Labor Code provisions
governing probationary eployent in deciding the present
case!
*! That even the <:GA 7ules relative to aster
eployent contracts accord respect to the Kcustos'
practices' copany policies and labor laws and legislation
of the host country!
6! That assuing arguendo that <hilippine labor laws
are applicable' given that the foreign principal is a
governent agency which is iune fro suit' as in fact it
did not sign any docuent agreeing to be held 5ointly and
solidarily liable' ATCB cannot liFewise be held liable' ore
so since the =inistry4s liability had not been 5udicially
deterined as 5urisdiction was not ac.uired over it!
Bssue
@hat law governs this caseL
Held
<hilippine laws based on the doctrine of processual
presuption!
Choice of law
As to their &ontentions that 0hili%%ine la)or la-s on
%ro)ationar# em%lo#ment are not a%%li&a)le sin&e it
-as e$%ressl# %rovided in res%ondent=s em%lo#ment
&ontra&t* -hi&h she vol"ntaril# entered into* that the
terms of her enaement shall )e overned )#
%revailin ."-aiti Civil Servi&e La-s and Re"lations
as in fa&t 08EA R"les a&&ord res%e&t to s"&h r"les*
&"stoms and %ra&ti&es of the host &o"ntr#* the same
was not substantiated.
Bndeed' a &ontra&t freel# entered into is &onsidered the
la- )et-een the %arties -ho &an esta)lish sti%"lations*
&la"ses* terms and &onditions as the# ma# deem
&onvenient* in&l"din the la-s -hi&h the# -ish to
overn their res%e&tive o)liations* as lon as the# are
not &ontrar# to la-* morals* ood &"stoms* %")li& order
or %")li& %oli&#' (LE? L8CI I6/E6CI86ES)
It is horn)oo> %rin&i%le* ho-ever* that the %art#
invo>in the a%%li&ation of a forein la- has the )"rden
of %rovin the la-* "nder the do&trine of %ro&ess"al
%res"m%tion -hi&h* in this &ase* %etitioners failed to
dis&hare'
On the issue of proving foreign laws
Bn GDB;Staffbuilders Bnt4l! v! NL7C#
In international la-* the %art# -ho -ants to have a
forein la- a%%lied to a dis%"te or &ase has the )"rden
of %rovin the forein la-' /he forein la- is treated as
a +"estion of fa&t to )e %ro%erl# %leaded and %roved as
the !"de or la)or ar)iter &annot ta>e !"di&ial noti&e of
a forein la-' He is %res"med to >no- onl# domesti& or
for"m la-'
/he 0hili%%ines does not ta>e !"di&ial noti&e of forein
la-s* hen&e* the# m"st not onl# )e alleed; the# m"st
)e %roven' /o %rove a forein la-* the %art# invo>in it
m"st %resent a &o%# thereof and &om%l# -ith Se&tions
;1 and ;@ of R"le 1A; of the Revised R"les of Co"rt
-hi&h readsB
SGC! *-! <roof of official record! N The record of public
docuents referred to in paragraph (a) of Section &0' when
adissible for any purpose' ay be evidenced by#
&! An official publication thereof or by a copy attested
by the officer having the legal custody of the record'
or by his deputy' and
*! Accopanied' if the record is not Fept in the
<hilippines' with a certificate that such officer has
the custody!
6! Bf the office in which the record is Fept is in a
foreign country' the certificate ay be ade by a
secretary of the ebassy or legation' consul
general' consul' vice consul' or consular agent or
by any officer in the foreign service of the
<hilippines stationed in the foreign country in which
the record is Fept' and authenticated by the seal of
his office!
SGC! *,! @hat attestation of copy ust state! N
@henever a copy of a docuent or record is attested for
the purpose of the evidence' the attestation ust state' in
substance' that#
&! The copy is a correct copy of the original' or a
specific part thereof' as the case ay be!
*! The attestation ust be under the official seal of
the attesting officer' if there be any' or if he be the
clerF of a court having a seal' under the seal of
such court
To prove the "uwaiti law' petitioners subitted the
following#
&! =:A between respondent and the =inistry' as
represented by ATCB' which provides that the
eployee is sub5ect to a probationary period of one
(&) year and that the host country4s Civil Service
Laws and 7egulations apply/
*! a translated copy (Arabic to Gnglish) of the
terination letter to respondent stating that she did
not pass the probation ters' without specifying the
grounds therefor' and a translated copy of the
certificate of terination' both of which docuents
were certified by =r! =ustapha Alawi' Head of the
Departent of >oreign Affairs;:ffice of Consular
Affairs Bnslaic Certification and Translation $nit/
and
6! Her letter of reconsideration to the =inistry' wherein
she noted that in her first eight (() onths of
eployent' she was given a rating of KG3cellentK
albeit it changed due to changes in her shift of worF
schedule!
/hese do&"ments* -hether ta>en sinl# or as a -hole*
do not s"ffi&ientl# %rove that res%ondent -as validl#
terminated as a %ro)ationar# em%lo#ee "nder ."-aiti
&ivil servi&e la-s' Instead of s")mittin a &o%# of the
%ertinent ."-aiti la)or la-s d"l# a"thenti&ated and
translated )# Em)ass# offi&ials thereat* as re+"ired
"nder the R"les* -hat %etitioners s")mitted -ere mere
&ertifi&ations attestin onl# to the &orre&tness of the
translations of the ,8A and the termination letter
-hi&h does not %rove at all that ."-aiti &ivil servi&e
la-s differ from 0hili%%ine la-s and that "nder s"&h
."-aiti la-s* res%ondent -as validl# terminated'
Asiavest Limited v CA; Antonio Heras (1998)
The CA ruled#
That it was necessary that evidence supporting the validity
of the foreign 5udgent be subitted and that our courts
are not bound to give effect to foreign 5udgents which
contravene our laws and the principle of sound orality and
public policy!
Held
Not necessary! At the pre;trial conference' HG7AS
aditted the e3istence of the Hong "ong 5udgent! :n the
other hand' ASBA?GST presented evidence to prove
rendition' e3istence' and authentication of the 5udgent by
the proper officials! The 5udgent is thus presued to be
valid and binding in the country fro which it coes' until
the contrary is shown! Conse.uently' the first ground relied
upon by ASBA?GST has erit! The presuption of validity
accorded foreign 5udgent would be rendered eaningless
were the party seeFing to enforce it be re.uired to first
establish its validity!
On whether the foreign judgment should be enforced in
this case
No' for lacF of 5urisdiction over the person of Heras
(e3planation supra)!
$nder paragraph (b) of Section ,)' 7ule 60 of the 7ules of
Court' which was the governing law at the tie this case
was decided by the trial court and respondent CA' a foreign
5udgent against a person rendered by a court having
5urisdiction to pronounce the 5udgent is %res"m%tive
eviden&e of a riht as )et-een the %arties and their
s"&&essors in interest )# the s")se+"ent title' However'
the 5udgent ma# )e re%elled )# eviden&e of -ant of
!"risdi&tion* -ant of noti&e to the %art#* &oll"sion*
fra"d* or &lear mista>e of la- or fa&t'
Also' Section 6(n) of 7ule &6& of the New 7ules of
Gvidence provides that in the absence of proof to the
contrary' a court' or 5udge acting as such' whether in the
<hilippines or elsewhere' is %res"med to have a&ted in
the la-f"l e$er&ise of !"risdi&tion'
Hence' on&e the a"thenti&it# of the forein !"dment is
%roved* the )"rden to re%el it on ro"nds %rovided for
in %arara%h ()) of Se&tion @<* R"le A9 of the R"les of
Co"rt is on the %art# &hallenin the forein !"dment
N HG7AS in this case!