Define Jurisdiction

[G.R. No. L-40527. June 30, 1976.]

PEOPLE OF THE PHILIPPINES, petitioner, vs.

HERMOGENES MARIANO and HON. AMBROSIO M.

GERALDEZ, in his capacity as Presiding Judge of the

Court of First Instance of Bulacan, Branch V,

respondents.

Solicitor General Estelito P. Mendoza, Assistant Solicitor

General Nathanael P. Pano, Jr., Solicitor Oswaldo D. Agcaoili,

Provincial P. C. Cliatchko and Assistant Provincial Fiscal C. G.

Perfecta, for petitioner. Eustaquio Evangelista, for respondent Hermogenes Mariano. SYNOPSIS Private respondent, then, Liaison Officer of the Municipal Mayor

received in behalf of the Municipality of San Jose del Monte, Bulacan,

several feet of electric cables and cable power from USAID/NEC.

Instead of delivering said items to the Municipality, respondent

appropriated and converted the same to his own use. Thereafter, the

Provincial Fiscal of Bulacan filed an information charging said

private respondent with the offense of estafa. Accused moved to

quash the information on the grounds that the Court lacked

jurisdiction to try the case; that the criminal liability had been

extinguished; that the information contained averments which, if

true, would constitute a legal excuse; and that the items which were

subject matter of the information were the same items for which the

Mayor of San Jose del Monte had been indicted and convicted of

malversation of public property by the Military Tribunal. Movant

claimed that since the case against the Mayor had already been

decided by the Military Tribunal, the Court of First Instance had lost

jurisdiction over the case against him.

Respondent court granted the motion to quash on the ground that

since the Military Commission first took cognizance of the case, it

had already lost jurisdiction to pass a new upon the same subject

matter. The People of the Philippines sought a review of the order

granting the motion to quash the information. The Supreme Court held that the situation does not involve two

tribunals vested with concurrent jurisdiction over a particular

crime so as to apply the rule that the court or tribunal which first

takes cognizance of the case acquires jurisdiction thereof exclusive

of the other. Estafa and malversation are two separate and distinct

offenses, and in the case at bar the accused in the estafa case

respondent) is different from the accused in the alleged

malversation case (the municipal mayor). Questioned order was set aside, the Court ordering respondent Judge to try the criminal charge against private respondent without delay. SYLLABUS 1. WORDS AND PHRASES; "JURISDICTION"; ORIGIN AND

MEANING OF THE WORD EXPLAINED. "Jurisdiction" is the basic

foundation of judicial proceedings. The word "Jurisdiction" is derived

from two Latin words "juris" and "dico" "I speak by the law"

which means fundamentally the power or capacity given by the law

to a court or tribunal to entertain, hear, and determine certain

controversies. Bouvier's own definition of the term "jurisdiction" has

found judicial acceptance, to wit: "Jurisdiction is the right of a Judge

to pronounce a sentence of the law in a case or issue before him,

acquired through due process of law;" it is "the authority by which

judicial officers take cognizance of and decide cases." In Herrera vs.

Barretto, (September 10, 1913), 25 Phil. 254, 251, this Court,

defined "jurisdiction" simply as the authority to hear and determine

a cause the right to act in a case. "Jurisdiction" has also been

aptly described as the right to put the wheels of justice in motion

and to proceed to the final determination of a cause upon the

pleadings and evidence. 2. ID.; ID.; CRIMINAL JURISDICTION DEFINED. "Criminal Jurisdiction" is necessarily the authority to hear and try a particular offense and impose the punishment for it. 3. REMEDIAL LAW, JURISDICTION OF COURTS IS CONFERRED

BY THE CONSTITUTION OR BY LAW. The conferment of

jurisdiction upon courts or judicial tribunals is derived exclusively

from the constitution and statutes of the forum. Thus, the question

of jurisdiction of Courts over a case filed before it is to be resolved on

the basis of the law or statute providing for or defining its

jurisdiction. 4. ID.; ID.; ORIGINAL CRIMINAL JURISDICTION OF COURTS

OF FIRST INSTANCE. Section 44(f) of the Judiciary Act of 1948

as amended, provides that the Court of First Instance shall have

original jurisdiction over all criminal cases in which the penalty

provided by law is imprisonment for more than six months, or a

fine of more than two hundred pesos. 5. ID.; ID.; ID.; IF IMPOSABLE PENALTY OF ESTAFA EXCEEDS

SIX MONTHS IMPRISONMENT, SAME FALLS WITHIN THE

ORIGINAL JURISDICTION OF COURTS OF FIRST INSTANCE.

Where the offense of estafa charged against respondent is penalized

with arresto mayor in its maximum period to prision correccional

in its a minimum period or imprisonment from four (4) months and

one (1) day to two (2) years and four (4) months, the offense falls

within the original jurisdiction of courts of first instance. 6. ID.; ID.; COURTS OF FIRST INSTANCE NOT VESTED WITH

CONCURRENT JURISDICTION WITH THE MILITARY TRIBUNAL

OVER OFFENSE OF ESTAFA. The claim of respondent judge that

his court exercises concurrent jurisdiction with the Military

Commission over the offense of estafa, so that, when the latter

tribunal first took cognizance of the case of malversation against the

Municipal Mayor involving the same items which were the subject

matter of the offense of estafa against private respondent, the

respondent court thereby lost jurisdiction over the latter offense is

incorrect, because such jurisdiction was vested upon respondent

court by the law in force at that time which was the Judiciary Act of

1948, the particular provision of which was not affected by any

Presidential issuances under martial law defining the jurisdiction of

military tribunals. The settled rule is that the jurisdiction of a court

is determined by the statute in force at the time of the

commencement of the action. 7. ID.; ID.; MILITARY COMMISSION LACKS JURISDICTION OVER

ESTAFA CASES. General Order No. dated October 4, 1974, which repeals General Order No. 12 and the

latter's amendments and related 3 Bouvier's own definition of the

term "jurisdiction" has found judicial acceptance, to wit:

"Jurisdiction is the right of a Judge to pronounce a sentence of the

law in a case or issue before him, acquired through due process of

law;" it is "the authority by which judicial officers take cognizance of

and decide cases." 4 In Herrera vs. Barretto, September 10, 1913, 25 Phil. 245, 251, this

Court, in the words of Justice Moreland, invoking American

jurisprudence, defined "jurisdiction" simply as the authority to hear

and determine a cause the right to act in a case. "Jurisdiction"

has also been aptly described as the right General Orders

inconsistent with the former, redefines the jurisdiction of military

tribunals over certain offenses, and estafa and malversation are not

among those enumerated therein, hence, the Military Commission

is not vested with jurisdiction over the crime of estafa. 8. CRIMINAL LAW; ESTAFA DISTINCT FROM MALVERSATION. Estafa and malversation are two separate and distinct offenses. D E C I S I O N MUOZ PALMA, J p:

This petition for Certiorari postulates a ruling on the question of

whether or not civil courts and military commissions exercise

concurrent jurisdiction over the offense of estafa of goods valued at

not more than six thousand pesos and allegedly committed by a

civilian. 1 On December 18, 1974, the office of the Provincial Fiscal of Bulacan

filed an Information (Criminal Case No. SM-649) accusing private

respondent herein Hermogenes Mariano of estafa alleged to have

been committed as follows: "That on or about and during the period from May 11 and June 8,

1971, in the municipality of San Jose del Monte, province of Bulacan,

Philippines, and within the jurisdiction of this Honorable Court, the

said accused Hermogenes Mariano, being then appointed as Liaison

Officer by the then incumbent Municipal Mayor, Constantino

Nolasco, acting for and in behalf of the municipality of San Jose del

Monte, Bulacan and authorized to receive and be receipted for US

excess property of USAID/NEC for the use and benefit of said

municipality, received from the said USAID/NEC the following items,

to wit:

"150 ft. electric cable valued

at $15 or P100.50 "525 ft. cable power valued at

$577.50 or P3,859.35 "250 ft. electric cable at

$125.00 or P837.50. with a total value of $717.50 or P4,797.35, involving the duty of

making delivery of said items to the said Municipal Mayor, but the

said accused Hermogenes Mariano once in possession of the said

items and far from complying with his aforesaid obligation and in

spite of repeated demands, did then and there wilfully, unlawfully

and feloniously, with grave abuse of confidence and with deceit,

misappropriate, misapply and convert to his own personal use and

benefit the said items valued at P717.50 or P4,79 7.35, belonging to

the said USAID/NEC, to the damage and prejudice of the said owner

in the said sum of $717.50 or P4,797.35" (pp. rollo).

On February 19, 1975, Hermogenes Mariano thru his counsel filed a motion to quash the Information on the following grounds: "1. That the court trying the cause has no jurisdiction of the offense charged or of the person of the defendant; "2. That the criminal action or liability has been extinguished; "3. That it contains averments which, if true, would constitute a legal excuse or justification." (p. 19, rollo) In his motion to quash, Mariano claimed that the items which were

the subject matter of the Information against him were the same

items for which Mayor Constantino A. Nolasco of San Jose del

Monte, province of Bulacan, was indicted before a Military

Commission under a charge of malversation of public property, and

for which Mayor Nolasco had been found guilty and sentenced to

imprisonment at hard labor for ten (10) years and one (1) day to

fourteen (14) years and eight (8) months with perpetual

disqualification plus a fine of P19,646.15 (see pp. 23-24, rollo), and

that inasmuch as the case against Mayor Nolasco had already been

decided by the Military Tribunal, the Court of First Instance of

Bulacan had lost jurisdiction over the case against him. (pp. 19-20,

ibid) On March 14, 1975 respondent Judge issued an Order granting the motion to quash on the ground of lack of jurisdiction reasoning as follows: "Considering that the Military Commission had already taken

cognizance of the malversation case against Mayor Nolasco

involving the same subject matter in its concurrent jurisdiction with

this Court, the case involving the subject properties had already

been heard and decided by a competent tribunal, the Military

Commission, and as such this Court is without jurisdiction to pass

upon anew the same subject matter." (pp 30-31, rollo, emphasis

supplied) Respondent Judge did not rule on the other grounds invoked in the motion to quash. The people now seeks a review of the aforesaid Order and presents the sole issue of jurisdiction of respondent Court over the estafa, case filed against respondent Mariano. "Jurisdiction" is the basic foundation of judicial proceedings. 2 The word "jurisdiction" is derived from two Latin words "juris" and "dico" "I speak by the law" which means fundamentally the power or capacity given by the law to a court or tribunal to entertain, hear, and determine certain controversies. to put the wheels of justice in notion, and to proceed to the final determination of a cause upon the pleadings and evidence. 5 "Criminal Jurisdiction" is necessarily the authority to hear and try a particular offense and impose the punishment for it. 6 The conferment of jurisdiction upon courts or judicial tribunals is

derived exclusively from the constitution and statutes of the forum.

Thus, the question of jurisdiction of respondent Court of First

Instance over the case filed before it is to be resolved on the basis of

the law or statute providing for or defining its jurisdiction. That, We

find in the Judiciary Act of 1948 where in its Section 44 (f) it is

provided: "SEC. 44. Original jurisdiction. Courts of first Instance shall have original jurisdiction: "xxx xxx Xxx

"(f) In all criminal cases in which the penalty provided by law is imprisonment for more than six

months, or a fine of more than two hundred pesos," (emphasis supplied) The offense of estafa charged against respondent Mariano is

penalized with arresto mayor, in its maximum period to prision

correccional, in its minimum period, or imprisonment from four (4)

months and one (1) day to two (2) years and four (4) months. 7 By

reason of the penalty imposed which exceeds six (6) months

imprisonment, the offense alleged to have been committed by the

accused, now respondent, Mariano, falls under the original

jurisdiction of courts of first instance. LLpr The above of course is not disputed by respondent Judge; what he

claims in his Order is that his court exercises concurrent

jurisdiction with the military commission and because the latter

tribunal was the first to take cognizance of the subject matter,

respondent court lost jurisdiction over it. That statement of

respondent court is incorrect. In People vs. Fontanilla, this Court speaking through then Justice

now Chief Justice Fred Ruiz Castro, categorically reiterated the

settled rule that the jurisdiction of a court is determined by the

statute in force at the time of the commencement of the act on. 8 In

the case at bar, it is rightly contended by the Solicitor General that

at the time Criminal Case No. SM-649 was filed, with the Court of

First Instance of Bulacan that was December 18, 1974, the law in

force vesting jurisdiction upon said court was the Judiciary Act of

1948, the particular provision of which was not affected one way or

the other by any Presidential issuances under Martial Law. General

Order No. 49 dated October 4, 1974, which repeals General Order

No. 12 and the latter's amendments and related General Orders

inconsistent with the former, redefines the jurisdiction of military

tribunals over certain offenses, and estafa, and malversation are not

among those enumerated therein. 9 In other words the Military

Commission is not vested with jurisdiction over the crime of estafa. Respondent court therefore gravely erred when it ruled that it lost

jurisdiction over the estafa, case against respondent Mariano with

the filing of the malversation charge against Mayor Nolasco before

the Military Commission. Estafa and Malversation are two separate

and distinct offenses and in the case now before Us the accused in

one is different from the accused in the other. But more fundamental

is the fact that We do not have here a situation involving two

tribunals vested with concurrent jurisdiction over a particular crime

so as to apply the rule that the court or tribunal which first takes

cognizance of the case acquires jurisdiction thereof exclusive of the

other. 10 The Military Commission as stated earlier is without power

or authority to hear and determine the particular offense charged

against respondent Mariano, hence, there is no concurrent

jurisdiction between it and respondent court to speak of. Estafa as

described in the Information, filed in Criminal Case No. SM-649 falls

within the sole exclusive jurisdiction of civil courts. PREMISES CONSIDERED, the appealed Order dated March 14, 1975, is set aside and respondent Judge is directed to proceed with the trial of Criminal Case No. SM-649 without further delay. SO ORDERED. Teehankee, Makasiar, Aquino and Martin, JJ.,, concur. Aquino, J., was designated to sit in the First Division.

G.R. No. L-25181 January 11, 1967

AUYONG HIAN (HONG WHUA HANG), petitioner-appellant, vs.

THE HONORABLE COURT OF TAX APPEALS and COLLECTOR OF CUSTOMS, and COMMISSIONER OF

CUSTOMS, respondents-appellees.

Fortunato de Leon for petitioner-appellant. Office of the Solicitor General for respondents-appellees.

SYLLABUS 1. COURTS; JURISDICTION; HOW DETERMINED. The

"jurisdiction" of a court refers to the power of a court to hear and

determine a case. To ascertain whether a court has jurisdiction or

not, the provisions of law should be inquired into. 2. COURT OF TAX APPEALS; JURISDICTION; IMPORTATION.

Where petitioner has raised not only the question of the legality of

the importation but also whether the tobacco thus imported are

goods which are relatively prohibited or absolutely prohibited; and

whether the sale of said tobacco by the Collector of Customs is legal

and proper or not questions which are purely administrative in

nature which fall within the exclusive appellate jurisdiction of the

Court of Tax Appeals; despite the ruling laid down by the Supreme

Court that the said importation was illegal, the Court of Tax Appeals

is not precluded from entertaining the appeal.

ZALDIVAR, J.:

This is a petition for review of the resolution of the respondent Court of Tax Appeals in CTA Case No. 1560 dismissing the appeal interposed by petitioner Auyong Hian (Hong Whua Hang) from the decision of the Commissioner of Customs, dated December 7, 1964, which affirmed the decision of the Collector of Customs of the Port of Manila, dated April 23, 1963, in Seizure Identification No. 6669 declaring forfeited in favor of the government 600 hogsheads of Virginia leaf tobacco that had been imported by Auyong Hian and ordering the sale of the said tobacco.

The facts pertinent to this case, as shown in the record, may be briefly stated as follows: Petitioner Auyong Hian applied with the Import Control Commission, and was granted, four (4) no-dollar remittance licenses to import Virginia leaf tobacco with an aggregate value of two million dollars. He filed his application on June 29, 1953 and was advised of the approval of his application the following day, June 30, 1953 the day the Import Control Law (Republic Act 650) expired. While negotiations for the importation of Virginia leaf tobacco pursuant to said licenses were undertaken by the licensee, it was not until December 30, 1961 that 600 hogsheads of Virginia leaf tobacco arrived in the Philippines aboard the "SS Fernstate". The Collector of Customs of Manila refused to release the said shipment of Virginia leaf tobacco to petitioner, apparently in view of his doubt as to the legality of the importation. For this reason, petitioner instituted an action for mandamus in the Court of First Instance of Manila, in Civil Case No. 49639, to compel the respondents Collector of Customs and Commissioner of Customs to release and deliver to petitioner the tobacco in question. On March 19, 1962, Judge Manuel Barcelona of the Court of First Instance of Manila issued an order directing the Collector of Customs and the Commissioner of Customs to release the tobacco to the petitioner upon the latter's filing a bond of P300,000.00. The Commissioner of Customs and the Collector of Customs filed a petition for certiorari in the Supreme Court questioning the jurisdiction of the Court of First Instance of Manila to order the release of the tobacco shipment and praying for

the annulment of the order of said court directing the release of the tobacco. This proceeding was before this Court in G.R. No. L-19597,

entitled "Cesar Climaco, et al. v. Manuel Barcelona, et al." On July 31, 1962, this Court, through Mr. Justice Labrador ruled that the Court of First Instance of Manila had no jurisdiction to issue the order directing the Commissioner of Customs and the Collector of Customs to release the 600 hogsheads of Virginia leaf tobacco in question to the petitioner, and incidentally declared that the importation of the tobacco was illegal upon the ground that the importation was made long after the Import Control Law had expired and that the importation was in contravention of the policy of the government as declared in Republic Acts Nos. 698 and 1194, not withstanding the alleged approval of said importation by the President of the Philippines.

On November 8, 1962, the Collector of Customs in instituted seizure proceedings, Seizure Identification No. 6669, against the 600 hogsheads of Virginia leaf tobacco consigned to the petitioner. On April 23, 1963, the Collector of Customs rendered his decision declaring said 600 heads of tobacco forfeited to the Government and ordered the sale thereof at public auction. The sale at public auction was set for June 10, 1963. The petitioner received a copy of said decision on May 7, 1963, and on May 21, 1963, the petitioner filed with the Collector of Customs his notice of appeal, in due form, from the above-mentioned decision of the Collector of Customs.

In the meantime certain incidents which have relevance to the case now before Us had taken place.

On May 4, 1963, Tomas Cloma filed an action against Auyong Hian in the Court of First Instance of Manila (Civil Case No. 53874) seeking the collection of a sum of money representing fees for alleged professional services rendered. Cloma applied for a writ of attachment, which was granted by Judge Francisco Arca on May 13, 1963, and the 600 hogsheads of Virginia leaf tobacco which were then in the possession of the Collector of Customs were attached upon Cloma's filing a bond of P20,000.00. The Collector of Customs filed a third-party claim upon the ground that the tobacco had been

declared forfeited to the government and the same is custodia

legis and could not be subject to attachment. Cloma moved to dismiss the third-party claim and asked for a restraining order or a

writ of preliminary injunction ex parte to prevent the Collector of Customs from selling the 600 hogsheads of tobacco in question. On June 5, 1963, Judge Arca issued an order restraining the Collector of Customs from enforcing his decision in Seizure Identification No. 6669 and ordering him to desist from proceeding with the sale at public auction of the subject tobacco which was set for June 10, 1963. On June 6, 1963, Judge Arca denied the motion of the Collector of Customs to reconsider the order of June 5, and on June 7 said Judge actually issued a writ of preliminary injunction embodying exactly the same provision as the restraining order issued two days previous. Thereupon the Collector of Customs filed a

petition for certiorari and prohibition with preliminary injunction before this Court against Judge Francisco Arca and Tomas Cloma questioning the jurisdiction of respondent Judge Arca in ordering the attachment and in issuing the writ of preliminary injunction in Civil Case No. 53874 in the Court of First instance of Manila, hereinabove adverted to. That proceeding was before this Court in G.R. No. L-

21839 entitled "Collector of Customs, et al. v. Hon. Francisco Arca, et al." This Court issued a writ of preliminary injunction restraining Judge Francisco Arca from enforcing the writ of preliminary injunction issued by him against the Collector of Customs in Civil Case No. 53874 in the Court of First Instance of Manila and from giving effect to the order of attachment and other pertinent orders issued in said case.

Auyong Hian filed a motion before this Court to intervene in that case

of "Collector of Customs v. Arca," supra, and at the same time asked that pending decision of the case a writ of preliminary injunction be issued restraining the Collector of Customs or his agents from seizing and selling the 600 hogsheads of tobacco in question and from enforcing his decision of April 23, 1963 which was then pending review before the Commissioner of Customs. On June 25, 1963, this Court granted the motion of Auyong Hian to intervene. On June 25, 1963, this Court issued a temporary restraining order against the Collector of Customs enjoining him from selling the 600 hogsheads of tobacco. On July 3, 1963, after hearing the oral argument of the parties concerned and upon Auyong Hian's filing a bond of

P50,000.00, this Court issued a preliminary injunction against the Collector of Customs restraining bond official "from seizing and selling the 600 hogsheads of imported Virginia tobacco of intervenor (Auyong Hian) and from enforcing the decision of Seizure Identification No. 6669 of the Bureau of Customs, dated April 23, 1963."1

It appears, however, that on June 10, 1963 the Collector of Customs accepted the deposit of the Consolidated Tobacco Industries of the Philippines, hereinafter referred to as CTIP, of P1,000,000.00 as a partial payment of The 600 hogsheads of Virginia tobacco; and on June 27, 1963 said CTIP paid the sum of P500,000.00 as the balance of the alleged purchase price of the said tobacco. The CTIP upon its petition, was allowed by this Court to intervene in the case of "Collector of Customs v. Arca", supra.

On July 17, 1964, this Court rendered its decision in the case of

"Collector of Customs, et al. v. Judge Francisco Arca, et al.," supra, holding that respondent Judge Francisco Arca has no jurisdiction over the 600 hogsheads of Virginia leaf tobacco involved in Seizure Identification No. 6669 and to pass upon the validity of the actuations of the Collector of Customs, and this Court set aside the orders of June 5, and June 6, 1963 and the writ of preliminary injunction of June 7, 1963 issued by said respondent Judge. Incidentally this Court, also through Mr. Justice Labrador who penned the decision in the case of "Climaco v. Barcelona", supra, reiterated the ruling held in the latter case that the importation of the 600 hogsheads of Virginia leaf tobacco was illegal. Being cognizant however, that when the decision in the Arca case was rendered the decision of the Collector of Customs of April 23, 1963 in Seizure Identification No. 6669 was pending appeal before the Commissioner of Customs, this Court did not dissolve the writ of preliminary injunction which was issued on July 3, 1963 against the Collector of Customs restraining said official from proceeding with the sale of the tobacco in question to the CTIP.

On December 7, 1964, the Commissioner of Customs rendered his decision on the appeal taken by Auyong Hian from the decision of the Collector of Customs of April 23, 1963, affirming said decision of the

Collector of Customs. On December 9, 1964, Auyong Hian filed with the Commissioner of Customs his notice of appeal to the Court of Tax Appeals from the decision of the Commissioner of Customs.

On January 8, 1965, herein petitioner filed before the Court of Tax Appeals a petition for review by way of appeal from the decision of the Commissioner of Customs, above-stated. Summons were served upon respondents, requiring them to file their answer. After having been granted various extensions until February 12, 1965 within which to file their answer, the Solicitor General, on February 4, 1965, in behalf of respondents Collector of Customs and Commissioner of Customs, filed a motion to dismiss principally upon the ground that the subject matter and issues raised in the petition for review have already been passed upon by the Supreme Court in its decisions

in G.R. No. L-19597, entitled "Cesar Climaco, et al. v. Honorable Judge Manuel P. Barcelona and Auyong Hian promulgated on July 31, 1962, and in G.R. No. L-21389, entitled "Collector of Customs v. Hon. Francisco Arca and Tomas Cloma et al.," promulgated on July 17, 1964, and "the said decisions are res judicataso as to control definitely the disposition of the instant case",2 and that the petitioner has no cause of action. On February 24, 1965, petitioner (appellant) filed a "petition to strike out respondents' motion to dismiss and to declare them in default," upon the ground that the motion to dismiss is not in accord with respondents' own request to be granted extension of time to file an answer and the order of the court granting said request and, therefore, said motion to dismiss did not stop the running of the period within which to answer.

The CTIP filed a petition to intervene and at the same time sought admission of its answer in intervention, but on May 29, 1965 said CTIP withdrew its motion for leave to intervene as well as its answer in intervention, both dated January 27, 1965.

On May 18, 1965, respondent Collector of Customs of Manila ordered the release to the CTIP of the 600 hogsheads of tobacco in question, without authority from the Commissioner of Customs. Believing that the release was ordered without authority, on May 28, 1965 the Solicitor General, in behalf of the Commissioner of Customs and the Collector of Customs, filed with the Court of Tax Appeals a motion

praying that the CTIP be ordered to return the tobacco to the Bureau of Customs. A motion praying for the same order prayed for by the Solicitor General in his motion of May 28, 1965 was filed by petitioner Auyong Hian on May 27, 1965.

On June 22, 1965, the Court of Tax Appeals promulgated a resolution dismissing the petition of Auyong Hian for review of the decisions of the Commissioner of Customs and the Collector of Customs upon the ground that "it is plain that this Court has no jurisdiction to entertain the instant appeal" because the Supreme

Court in the two cases of "Climaco v. Barcelona" supra and "Collector of Customs v. Arca", supra, had already held that the importation of the tobacco in question is illegal and "that this Court cannot review, revise, much less overrule the decisions of the Supreme Court."3 The Court of Tax Appeals, in the same resolution, further stated that having found that it had no jurisdiction to entertain the appeal it deemed it unnecessary to consider the other issues raised by the petitioner and it refused to entertain the motion of the Solicitor General for the issuance of an order for the return of the tobacco to the Bureau of Customs which was released by the Collector of Customs to the CTIP. In this connection, the record shows that on July 12, 1965, this, Court, in G.R. No. L-24704, entitled "Auyong Hian v. Judge Gaudencio Cloribel, et al." issued a writ of preliminary injunction enjoining Judge Cloribel of the Court of First Instance of Manila, the CTIP, the Consolidated Terminals, Inc., the Collector of Customs and the Commissioner of Customs from disposing or in any manner interfering with the tobacco in question; and that injunction is still in full force and effect.

On June 26, 1965, petitioner Auyong Hian filed a motion for reconsideration of the resolution of June 22, 1965, and for a new trial, and on July 7, 1965, he further filed a supplemental motion for reconsideration and new trial. The supplemental motion pointed out that by filing the motion of May 28, 1965, praying the Court of Tax Appeals to order the CTIP to return the tobacco in question to the Bureau of Customs, the Solicitor General, in behalf of the Commissioner of Customs and the Collector of Customs, had thereby waived their stand that the Court of Tax Appeals had no jurisdiction to entertain the appeal from the decisions of the Commissioner of

Customs and the Collector of Customs. Both the original and supplemental motions for reconsideration and new trial, however, were denied by the Court of Tax Appeals in a resolution dated August 31, 1965. Petitioner filed a second motion for reconsideration and new trial, but said second motion was again denied by the Court of Tax Appeals in a resolution dated September 18, 1965. From these resolutions of the Court of Tax Appeals of June 22, 1965 dismissing the petition for review, and of August 31, 1965 and September 12, 1965 denying the motions for reconsideration and new trial petitioner Auyong Hian appealed to this Court.

Respondents filed their answer, in the instant case, on November 5, 1965, denying certain allegations in the petition for review and alleging affirmative defenses, the principal defense being that the

petition for review is barred by res judicata and the Court of Tax Appeals has no jurisdiction to entertain the petition, and praying that the petition be dismissed.

The principal question that this Court has to resolve in the instant case is whether or not the Court of Tax Appeals has correctly held that it has no jurisdiction to entertain the appeal interposed by petitioner Auyong Hian from the decision of the Commissioner of Customs, which affirmed the decision of the Collector of Customs in Seizure Identification No. 6669.

The "jurisdiction" of a court refers to the power of a court to hear and determine a case. To ascertain whether a court has jurisdiction or not the provisions of the law should be inquired into. The law pertinent to the resolution of the question before Us is found in the provisions of Sections 2313 and 2402 of the Tariff and Customs Code of the Philippines (Republic Act 1937) and in Section 7 of Republic Act No. 1125, as follows:

SEC. 2313. Review by Commissioner. The person aggrieved by the decision or action of the Collector in any matter presented upon protest or by his action in any case of seizure may, within fifteen days after notification in writing by the Collector of his action or decision, give written notice to the Collector of his desire to have the matter reviewed by the Commissioner. Thereupon the Collector shall forthwith

transmit all the records of the proceedings to the Commissioner, who shall approve, modify or reverse the action or decision of the Collector and take such steps and make such orders as may be necessary to give effect to his decision. (Republic Act 1937.)

SEC. 2402. Review by Court of Tax Appeals. The party aggrieved by a ruling of the Commissioner in any matter brought before him upon protest or by his action or ruling in any case of seizure may appeal to the Court of Tax Appeals, in the manner and within the period prescribed by law and regulations.

Unless an appeal is made to the Court of Tax Appeals in the manner and within the period prescribed by laws and regulations, the action or ruling of the Commissioner shall be final and conclusive. (Republic Act 1837.)

SEC. 7. Jurisdiction. The Court of Tax Appeals shall exercise exclusive appellate jurisdiction to review by appeal, as herein provided.

x x x x x x x x x

(2) Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or other money charges; seizure, detention or release of property affected; fines, forfeitures or other penalties imposed in relation thereto;

or other matters arising under the Customs Law or other law or part of law administered by the Bureau of Customs; (Republic Act 1125; Emphasis supplied.)

The record shows that petitioner Auyong Hian has properly brought this case on appeal to the Court of Tax Appeals in accordance with the above-quoted provisions of law. The subject matter of the appeal is perfectly within the power of the Court of Tax Appeals to hear and decide.

In the case of "Government of the Philippine Islands, et al. v. Gale, et al.," 24 Phil. 95, this Court declared that

The Collector of Customs when sitting in forfeiture proceedings, as provided in Act 355 (now Republic Act 1937 the Tariff and Customs Code), constitutes a tribunal upon which the law

expressly confers jurisdiction to hear and determine all questions touching the forfeiture and further disposition of the subject matter of such proceedings .... (Emphasis supplied.)

And so, in the instant case, the Collector of Customs of the Port of Manila, in Seizure Identification No. 6669, constituted itself as a tribunal to hear and determine the questions touching the forfeiture and disposition of the 600 hogsheads of Virginia leaf tobacco that was imported by Auyong Hian. The Collector of Customs rendered a decision declaring the tobacco forfeited in

favor of the government and ordering its sale at public auction, and Auyong Hian timely appealed from that decision to the Commissioner of Customs. By this appeal Auyong Hian had thereby questioned not only the seizure and forfeiture of the tobacco but also the order to sell the tobacco; and any sale made or conducted pursuant to said appealed decision was necessarily covered by the appeal to the Commissioner of Customs. The Commissioner of Customs affirmed the decision of the Collector of Customs in ordering the forfeiture of the tobacco, but the decision of the Commissioner was silent regarding the portion of the decision of the Collector of Customs ordering the sale. The Commissioner of Customs, in his affirmatory decision, simply limited himself to declaring that the seizure of the 600 hogsheads of tobacco and their forfeiture in favor of the government was in order because of the decisions

rendered by the Supreme Court in the cases of "Climaco v. Barcelona" and "Collector of Customs v. Arca", supra which held that the importation of those 600 hogsheads of tobacco was illegal. The decision of the Commissioner of Customs did not touch on the other questions raised by petitioner Auyong Hian in his appeal.

In the petition for review that he filed with the Court of Tax Appeals, Auyong Hian challenged the decision of the Commissioner of Customs on the following grounds:

(1) That the decision is not supported by any evidence appearing in the record;

(2) That the holding that the importation is illegal is ambiguous because Section 2307 of the Tariff and Customs Code recognizes two (2) kinds of illegality which the decision does not distinguish;

(3) That the decision is contrary to law and established precedents;

(4) That the decision has failed and ignored the various questions raised by herein petitioner in his appeal and in his memoranda without cogent reasons;

(5) That the decision has ignored fairness and equity;

(6) That the reliance placed by the respondents upon the decisions of the Supreme Court in the two cases, Climaco, et al. v. Judge Barcelona, et al. G.R. No. L-19597 and Collector of Customs vs. Judge Arca, et al., G.R. No. L-21389, is misplaced, the reference to illegality therein being more obiter dictum and beyond the jurisdiction of the Supreme Court, the primary, exclusive and original jurisdiction to determine the illegality of importation being vested by law upon the Collector of Customs and the Commissioner of Customs; and

(7) Both respondent Collector of Customs and Commissioner of Customs have disregarded without cogent reasons the findings of facts and the recommendation of former Acting Customs Collector Teotimo Roja and Assistant Commissioner for Operations Juan Celeste, recommending the release of the aforesaid tobacco to herein petitioner.

In amplification of the grounds alleged in the petition for review the petitioner stated, among, others, that an examination of the decisions of both the Collector of Customs and the Commissioner of Customs together with the transcript of records and exhibits disclosed that those two decisions are not supported by evidence; and that by simply declaring the importation illegal the two decisions

did not actually clarify under that category of illegal importation the subject tobacco falls, because Section 2307 of the Tariff and Customs Code recognizes two kinds of illegal importation with different

consequences on the rights of the importer to wit: "relatively prohibited which permits redemption, and absolutely prohibited (like opium and gambling devices, etc.) which does not permit of redemption."4

The petitioner claims, in his petition for review, that the worst that can happen is that the tobacco importation be declared relatively prohibited inasmuch as it was imported by the authority of the President of the Philippines, backed up by the legal opinions of the Secretary of Justice and the Chief Law Officer of Malacaang. The petitioner also claims that the issue presented in the appeal is not alone the legality or the illegality of the importation, but that the appeal had raised questions that go into the substance of due process and deprivation of one's property without a day in court. The petitioner further claims that "the act of seizure and the scheduled auction sale of petitioner's tobacco on June 10, 1963, which was frustrated by the interposition first of the preliminary injunction of Judge

Arca and finally by that of the Supreme Court inCollector of Customs vs. Judge Arca, et al., G.R. L-21389, were all illegal, arbitrary and with grave abuse of power", and "the decision appealed from of respondent Commissioner of Customs affirmed all these illegalities ...."5

We find that the petition for review filed by Auyong Hian before the Court of Tax Appeals has really raised a number of issues which call for a ruling or resolution by the Court of Tax Appeals, and it is within the jurisdiction of the Court of Tax Appeals to rule on, or resolve, those issues. Among the matters that were questioned by Auyong Hian in his appeal was the legality and propriety of the order to sell at public auction, as embodied in the decision of the Collector of Customs which was affirmed by the Commissioner of Customs; and, more so, because during the pendency of the appeal before the Court of Tax Appeals it was brought to the attention of said court, by Auyong Hian as well as by the Solicitor General, that the Collector of Customs (Pedro Pacis) had released the 600 hogsheads of tobacco in

question to the CTIP which claimed to have purchased said tobacco at public auction sale which sale is precisely questioned by Auyong Hian in his appeal. 6

The Court of Tax Appeals declared itself without jurisdiction to entertain the appeal of Auyong Hian upon the ground that the Supreme Court had already ruled that the importation of the 600 hogsheads of tobacco was illegal, and that it cannot review, revise, much less overrule the decision of the Supreme Court. We believe that the stand taken by the Court of Tax Appeals is not correct. It appears to Us that the Court of Tax Appeals had overlooked the fact that the appeal of Auyong Hian from the decision of the Commissioner of Customs had raised not only the question of the legality of the importation but also other matters which called for a ruling by the Court of Tax Appeals in the exercise of its appellate jurisdiction especially the question of whether the tobacco thus imported were goods the importation of which was relatively prohibited or absolutely prohibited, and also the question regarding the disposal of the tobacco that was thus seized. The declaration by

this Court, in the Barcelona and Arca cases, supra, that the importation of the tobacco in question was illegal was not intended to stop the course of the administrative proceedings in relation to the importation of said tobacco. Let it be noted that when the Barcelona case was decided on July 31, 1962 the seizure proceedings against the 600 hogsheads of tobacco in question had not yet been instituted by the Collector of Customs. It was not until November 8, 1962 when Seizure Identification No. 6669 was instituted. In the Barcelona case the question that was before this Court was one regarding jurisdiction that is whether Judge Barcelona of the Court of First Instance of Manila had jurisdiction to order the Collector of Customs and the Commissioner of Customs to release to Auyong Hian the said 600 hogsheads of tobacco. Because in his order of release Judge Barcelona mentioned, among others, that Auyong Hian had imported said tobacco pursuant to valid licenses, this Court, on the basis of the pleadings and the record of that case, rendered a ruling that the licenses were invalid and so the importation of the tobacco was illegal.

In the case of Collector of Customs v. Arca, supra, this Court reiterated the ruling in the Barcelona case that the importation of said tobacco was illegal. The issue before this Court in the Arca case was, as in the Barcelona case, regarding jurisdiction-that is, whether Judge Arca of the Court of First Instance of Manila had jurisdiction to order the attachment of the 600 hogsheads of tobacco which was then under the custody of the Bureau of Customs and which was the subject of seizure proceedings and whether said judge can enjoin the Collector of Customs and the Commissioner of Customs from selling the said tobacco at public auction. This Court declared Judge Arca without jurisdiction over the shipment involved in Seizure Identification No. 6669 and to pass upon the validity of the actuations of the Collector of Customs.

This Court allowed Auyong Hian to intervene in the Arca case, and because he alleged that as the importer of the tobacco in question he had made a timely appeal to the Commissioner of Customs from the decision of the Collector of Customs in the seizure proceedings, this Court gave him a chance to prosecute his appeal, first before the Commissioner of Customs, and later before the Court of Tax Appeals. In the meantime, this Court issued a writ of preliminary injunction enjoining the Collector of Customs and the Commissioner of Customs from seizing and selling the 600 hogsheads of tobacco in question.

Thus, in spite of the fact that this Court had declared that the tobacco in question was illegally imported, it at the same time took cognizance of the administrative proceedings that were going on in connection with that importation, and this Court recognized the jurisdiction of the Commissioner of Customs and the Court of Tax Appeals in connection with those administrative proceedings. In the

very decision, and resolutions, in the case ofCollector of Customs vs. Arca, supra, this Court has clearly recognized the jurisdiction of the Commissioner of Customs and the Court of Tax Appeals, as the case may be, to act on the appeal properly brought before him in relation to the administrative proceedings in connection with the importation. Thus, in the decision, we read, as follows:

x x x x x x x x x

Auyong filed a petition for leave to intervene (granted June 25, 1963) and later, an urgent motion ex parte praying this Court that, pending decision of herein petition, a writ of preliminary injunction be issued restraining the Collector of Customs or his agents from seizing and selling the 600 hogsheads of tobacco in question and enforcing his decision on April 23, 1963 which was pending review by the Commissioner of Customs. Basis of

intervenor's motion ex parte is the claim that enforcement of said decision would cause great injustice and damage to him and render any favorable decision by the Commissioner of Customs on his appeal ineffectual and without any further

benefit to him. Finding from the verified answer of the intervenor to the present petition that the order of the Collector of Customs in the seizure proceedings covering the tobacco in question had been timely appealed to the Commissioner of Customs, before whom the administrative proceedings is still pending. We issued on June 26, 1963 a restraining order, upon intervenor's filing a bond in the amount of P20,000, directing the Collector of Customs to desist temporarily from continuing with the public auction of the tobacco, until July 3, 1963, and ordering the said Collector to show cause why a preliminary writ of injunction should not issue. After due hearing, this Court resolved to grant intervenor Auyong Hian's petition upon his filing a bond of P50,000, without prejudice to petitioner's filing within five days from the court's resolution an opposition on the merits to the petition of intervenor; and likewise allowing the Consolidated Tobacco Industries of the Philippines, Inc. to file a petition for intervention, which it did on July 9, 1963.

x x x x x x x x x

This Court, having found that intervenor Auyong Hian, had made a timely appeal from the decision of the Collector of Customs of April 23, 1963 to the Commissioner of Customs before whom the appeal is still pending action (see Resolution of June 26, 1963), will refrain from passing upon the validity of the administrative proceedings therein questioned and will instead proceed to determine the respective rights of the parties to the present action.

x x x x x x x x x

Auyong Hian, therefore, had lost all his rights to the shipment, not only because We declared the licenses void and the shipment illegal in the case of Climaco vs. Barcelona, G.R. No. L-19597, but also because the seizure proceedings have been found to be regular and had deprived Auyong Hian of his rights

to the shipment as importer; at least while the order of seizure has not been set aside.

x x x x x x x x x

In view of the foregoing, the petition for certiorari and injunction is granted, and the orders of respondent Judge of first instance dated June 5 and 6, and the writ of preliminary injunction dated June 7, 1963 and other pertinent orders issued by him, are set aside, and respondent judge is hereby declared without jurisdiction over the shipment involved in Manila Seizure Identification No. 6669 and to pass upon the validity of the

actuations of petitioner Collector of Customs. Pending action by the Commissioner of Customs on the appeal taken by Auyong Hian from the April 23, 1963 decision of the Collector of Customs in the above-mentioned seizure proceedings, the writ of preliminary injuncion issued by this Court against said Collector restraining him from proceedings with the sale of the subject tobacco to intervenor Consolidated Tobacco Industries of the Philippines, Inc., shall continue to remain in full force and effect. (Emphasis supplied.)

On January 7, 1965, this Court, in the Arca case, issued the following resolution:

Considering the petition filed by intervenor Consolidated Tobacco Industries of the Philippines, Inc. dated January 2, 1965 in L-21389 (Collector of Customs for the Port of Manila Hon. Francisco Arca, etc., et al.) praying for the lifting of the writ of preliminary injunction issued by this Court under date of June 26, 1963 restraining the Collector of Customs from proceeding with the sale to said intervenor of the tobacco which is the subject of this litigation, and the manifestation of the

intervenor Auyong Hian dated January 5, 1965 opposing said petition for the lifting of the preliminary injunction in

question, it appearing that the intervenor Auyong Hian had filed an appeal on December 9, 1964 from the decision of the Commissioner of Customs which affirmed the decision of the Collector of Customs ordering the seizure of subject tobacco, THE COURT HEREBY DENIES the said petition of intervenor Consolidated Tobacco Industries of the Philippines, Inc. (Emphasis supplied.)

On January 19, 1965, also in the Arca case, this Court issued the following resolution:

It appearing after the oral argument in (L-21389 Collector of Customs, etc. v. Hon. Francisco Arca, et al.) that Judge Gaudencio Cloribel has suspended his order complained of; that there is no reason to believe he would revive it in view of

the disclosure already made; that apparently the order of the Commissioner of Customs has not yet become final and the Court of Tax Appeals has already acquired exclusive jurisdiction over the subject-matter, pursuant to the appeal made by Auyong Hian; RESOLVED, that this incident be considered closed. And the petition of intervenor Consolidated Tobacco Industries, Inc. to reconsider our order of January 7, 1965 is DENIED. (Emphasis supplied.)

On April 8, 1965, this Court also issued the following resolution in the Arca case:

In case L-21389 (The Collector of Customs, etc. vs. Hon. Francisco Arca, etc., et al.), considering the motion of the intervenor Consolidated Tobacco Industries of the Philippines, Inc., dated March 31, 1965 praying that the preliminary injunction issued by this Honorable Court restraining the Collector of Customs from proceeding with the sale of the tobacco, subject-matter of the litigation, to said intervenor and the opposition filed against said motion by intervenor Auyong

Hian (Hong Whua Hang) it appearing that on January 19, 1965 this Court declared that the Court of Tax Appeals had already acquired exclusive jurisdiction over the subject-matter of this

case pursuant to the appeal made by Auyong Hian from the decision of the Commissioner of Customs and had resolved that the incident regarding the controversy over the said tobacco was considered closed: This Court RESOLVED, that the writ of preliminary injunction issued by it be considered dissolved and

of no further effect. The petition of the intervenor Consolidated Tobacco Industries of the Philippines, Inc. of March 31, 1965, is denied without prejudice to taking up the matter with the Court of Tax Appeals. (Emphasis supplied.)

It will thus be seen, from the above-quoted resolution issued in connection with incidents brought up after the decision had been rendered in the Arca case, that in spite of the fact that this Court had declared the importation of the 600 hogsheads of tobacco in question illegal, it categorically declared that the Court of Tax Appeals has the exclusive jurisdiction over the subject matter (the tobacco) pursuant to the appeal made by Auyong Hian from the decision of the Commissioner of Customs. What are declared in these resolutions are but reaffirmations of what was stated in the decision that because of the timely appeal made by Auyong Hian, this Court would refrain from passing upon the validity of the administrative proceedings. This Court recognizes the exclusive jurisdiction of the Court of Tax Appeals over appeals in administrative proceedings in connection with importations. Indeed, the proceedings before the Collector of Customs, the appeal before the Commissioner of Customs, and the appeal before the Court of Tax Appeals deal with administrative aspects of importation. While the Court of Tax Appeals is considered as a judicial body, its functions are to pass upon administrative decisions of the Commissioner of Customs, the Commissioner of Internal Revenue and the provincial or city Boards of Assessment Appeals.

This Court declared in its decision, in the Arca case, that Auyong Hian would lose all rights over the tobacco in question "at least while the order of seizure has not been set aside." This Court thus made it understood that the seizure proceedings were not yet closed, and there was no final decision yet on the matter. When this Court said that it "will refrain from passing upon the administrative proceedings therein questioned" (in the appeal before the Commissioner of

Customs); and "that apparently the order of the Commissioner of Customs has not yet become final and the Court of Tax Appeals has already acquired exclusive jurisdiction over the subject matter pursuant to the appeal made by Auyong Hian", what was meant was that the Court of Tax Appeals is the body that should decide those matters which this Court had refrained from deciding.

The case as brought by Auyong Hian to the Court of Tax Appeals involves questions relating to the seizure, forfeiture and the disposition of the 600 hogsheads of tobacco in question. As has been adverted to, the matter regarding the sale of the tobacco was included in the appeal of Auyong Hian from the decision of the Commissioner of Customs. The act of selling the seized tobacco as well as the seizure thereof are matters that are governed by the Tariff and Customs Code, the enforcement of which law is under the administration of the Bureau of Customs. Hence the Court of Tax Appeals has jurisdiction over appeals from the decisions of the Commissioner of Customs in connection with the enforcement of the Tariff and Customs Code. We find, therefore, that in spite of the ruling laid down in the Barcelona and Arca cases that the importation of the 600 hogsheads of the tobacco in question was illegal the Court of Tax Appeals is not precluded from entertaining the appeal filed by Auyong Hian from the decision of the Commissioner of Customs, said appeal having raised issues that require resolution or ruling by the Court of Tax Appeals, and they are issues which could not have been decided by this Court in those two cases. We hold that the Court of Tax of Appeals has jurisdiction to entertain the aforestated appeal by Auyong Hian, and it should proceed to determine and decide said appeal.

In view of the foregoing, the resolutions of June 22, 1965, August 31, 1965 and September 18, 1965, in CTA Case No. 1560, appealed from, are set aside; and this case is remanded to the Court of Tax Appeals for further proceedings and decision. No costs. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P. and Sanchez, JJ., concur. Mr. Castro, J., reserves his vote.

[G.R. No. 74854. April 2, 1991.]

JESUS DACOYCOY, petitioner, vs. HON. INTERMEDIATE

APPELLATE COURT, HON. ANTONIO V. BENEDICTO,

Executive Judge, Regional Trial Court, Branch LXXI,

Antipolo, Rizal, and RUFINO DE GUZMAN, respondents. Ramon V . Sison for petitioner. Public Attorney's Office for private respondent. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; VENUE;

DISTINCTIONS BETWEEN JURISDICTION AND VENUE, CITED.

The motu proprio dismissal of petitioner's complaint by respondent

trial court on the ground of improper venue is plain error, obviously

attributable to its inability to distinguish between jurisdiction and

venue. Questions or issues relating to venue of actions are basically

governed by Rule 4 of the Revised Rules of Court. It is said that the

laying of venue is procedural rather than substantive. It relates to

the jurisdiction of the court over the person rather than the subject

matter. Provisions relating to venue establish a relation between the

plaintiff and the defendant and not between the court and the subject

matter. Venue relates to trial not to jurisdiction, touches more of the

convenience of the parties rather than the substance of the case.

Jurisdiction treats of the power of the court to decide a case on the

merits; while venue deals on the locality, the place where the suit

may be had. 2. ID.; ID.; ID.; ID.; EFFECT IF DEFENDANT FAILS TO

CHALLENGE VENUE IN A MOTION TO DISMISS. Dismissing the complaint on the ground of improper venue is

certainly not the appropriate course of action at this stage of the

proceeding, particularly as venue, in inferior courts as well as in the

courts of first instance (now RTC), may be waived expressly or

impliedly. Where defendant fails to challenge timely the venue in a

motion to dismiss as provided by Section 4 of Rule 4 of the Rules of

Court, and allows the trial to be held and a decision to be rendered,

he cannot on appeal or in a special action be permitted to challenge

belatedly the wrong venue, which is deemed waived.

3. ID.; ID.; ID.; ID.; NOT IMPROPERLY LAID UNLESS AND UNTIL

DEFENDANT OBJECTS TO IT IN A MOTION TO DISMISS; REASON.

Unless and until the defendant objects to the venue in a motion to

dismiss, the venue cannot be truly said to have been improperly laid,

as for all practical intents and purposes, the venue, though

technically wrong, may be acceptable to the parties for whose

convenience the rules on venue had been devised. The trial court

cannot pre-empt the defendant's prerogative to object to the improper

laying of the venue by motu proprio dismissing the case.

4. ID.; COURTS; JURISDICTION; OVER DEFENDANT, HOW

ACQUIRED. In the instant case, even granting for a moment that

the action of petitioner is a real action, respondent trial court would

still have jurisdiction over the case, it being a regional trial court

vested with the exclusive original jurisdiction over "all civil actions

which involve the title to, or possession of, real property, or any

interest therein . . ." in accordance with Section 19 (2) of Batas

Pambansa Blg. 129. With respect to the parties, there is no dispute

that it acquired jurisdiction over the plaintiff Jesus Dacoycoy, now

petitioner, the moment he filed his complaint for annulment and

damages. Respondent trial court could have acquired jurisdiction

over the defendant, now private respondent, either by his voluntary

appearance in court and his submission to its authority, or by the

coercive power of legal process exercised over his person.

5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO BE HEARD;

RULES OF PROCEDURE SHOULD BE ADHERED TO BY TRIAL

COURT IN CASE AT BAR TO AFFORD THE PARTIES SUCH RIGHT.

It was grossly erroneous for the trial court to have taken a

procedural short-cut by dismissing motu proprio the complaint on

the ground of improper venue without first allowing the procedure

outlined in the Rules of Court to take its proper course. Although we

are for the speedy and expeditious resolution of cases, justice and

fairness take primary importance. The ends of justice require that

respondent trial court faithfully adhere to the rules of procedure to

afford not only the defendant, but the plaintiff as well, the right to be

heard on his cause.

Decision

May the trial court motu proprio dismiss a complaint on the ground of improper venue? This is the issue confronting the Court in the case at bar.

On March 22, 1983, petitioner Jesus Dacoycoy, a resident of Balanti, Cainta, Rizal, filed before the Regional Trial Court, Branch LXXI, Antipolo, Rizal, a complaint against private respondent Rufino de Guzman praying for the annulment of two (2) deeds of sale involving a parcel of riceland situated in Barrio Estanza, Lingayen, Pangasinan, the surrender of the produce thereof and damages for private respondent's refusal to have said deeds of sale set aside upon petitioner's demand.

On May 25, 1983, before summons could be served on private respondent as defendant therein, the RTC Executive Judge issued an order requiring counsel for petitioner to confer with respondent trial judge on the matter of venue. After said conference, the trial court dismissed the complaint on the ground of improper venue. It found, based on the allegations of the complaint, that petitioner's action is a real action as it sought not only the annulment of the aforestated deeds of sale but also the recovery of ownership of the subject parcel of riceland located in Estanza, Lingayen, Pangasinan, which is outside the territorial jurisdiction of the trial court.

Petitioner appealed to the Intermediate Appellate Court, now Court of Appeals, which in its decision of April 11, 1986, 1 affirmed the order of dismissal of his complaint.

In this petition for review, petitioner faults the appellate court in affirming what he calls an equally erroneous finding of the trial court that the venue was improperly laid when the defendant, now private respondent, has not even answered the complaint nor waived the venue. 2

Petitioner claims that the right to question the venue of an action belongs solely to the defendant and that the court or its magistrate does not possess the authority to confront the plaintiff and tell him

that the venue was improperly laid, as venue is waivable. In other words, petitioner asserts, without the defendant objecting that the venue was improperly laid, the trial court is powerless to dismiss the case motu proprio.

Private respondent, on the other hand, maintains that the dismissal of petitioner's complaint is proper because the same can "readily be assessed as (a) real action." He asserts that "every court of justice before whom a civil case is lodged is not even obliged to wait for the defendant to raise that venue was improperly laid. The court can take

judicial notice and motu proprio dismiss a suit clearly denominated as real action and improperly filed before it. . . . the location of the subject parcel of land is controlling pursuant to Sec. 2, par. (a), Rule 4 of the New Rules of Court . . . 3

We grant the petition.

The motu proprio dismissal of petitioner's complaint by respondent trial court on the ground of improper venue is plain error, obviously attributable to its inability to distinguish between jurisdiction and venue.

Questions or issues relating to venue of actions are basically governed by Rule 4 of the Revised Rules of Court. It is said that the laying of venue is procedural rather than substantive. It relates to the jurisdiction of the court over the person rather than the subject matter. Provisions relating to venue establish a relation between the plaintiff and the defendant and not between the court and the subject matter. Venue relates to trial not to jurisdiction, touches more of the convenience of the parties rather than the substance of the case. 4

Jurisdiction treats of the power of the court to decide a case on the merits; while venue deals on the locality, the place where the suit may be had. 5

In Luna vs. Carandang, 6 involving an action instituted before the then Court of First Instance of Batangas for rescission of a lease contract over a parcel of agricultural land located in Calapan, Oriental Mindoro, which complaint said trial court dismissed for lack of jurisdiction over the leased land, we emphasized:

(1) A Court of First Instance has jurisdiction over suits involving title to, or possession of, real estate wherever situated in the Philippines, subject to the rules on venue of actions (Manila Railroad Company vs. Attorney General, etc., et al., 20 Phil. 523; Central Azucarera de Tarlac vs. De Leon, et al., 56 Phil. 169; Navarro vs. Aguila, et al., 66 Phil. 604; Lim Cay, et al. vs. Del Rosario, etc., et al., 55 Phil. 692);

(2) Rule 4, Section 2, of the Rules of Court requiring that an action involving real property shall be brought in the Court of First Instance of the province where the land lies is a rule on venue of actions, which may be waived expressly or by implication.

In the instant case, even granting for a moment that the action of petitioner is a real action, respondent trial court would still have jurisdiction over the case, it being a regional trial court vested with the exclusive original jurisdiction over "all civil actions which involve the title to, or possession of, real property, or any interest therein . . ." in accordance with Section 19 (2) of Batas Pambansa Blg. 129. With respect to the parties, there is no dispute that it acquired jurisdiction over the plaintiff Jesus Dacoycoy, now petitioner, the moment he filed his complaint for annulment and damages. Respondent trial court could have acquired jurisdiction over the defendant, now private respondent, either by his voluntary appearance in court and his submission to its authority, or by the coercive power of legal process exercised over his person. 7

Although petitioner contends that on April 28, 1963, he requested the City Sheriff of Olongapo City or his deputy to serve the summons on defendant Rufino de Guzman at his residence at 117 Irving St., Tapinac, Olongapo City, 8 it does not appear that said service had been properly effected or that private respondent had appeared voluntarily in court 9 or filed his answer to the complaint. 10 At this stage, respondent trial court should have required petitioner to exhaust the various alternative modes of service of summons under

Rule 14 of the Rules of Court, i.e., personal service under Section 7, substituted service under Section 8, or service by publication under

Section 16 when the address of the defendant is unknown and cannot be ascertained by diligent inquiry.

Dismissing the complaint on the ground of improper venue is certainly not the appropriate course of action at this stage of the proceeding, particularly as venue, in inferior courts as well as in the courts of first instance (now RTC), may be waived expressly or impliedly. Where defendant fails to challenge timely the venue in a motion to dismiss as provided by Section 4 of Rule 4 of the Rules of Court, and allows the trial to be held and a decision to be rendered, he cannot on appeal or in a special action be permitted to challenge belatedly the wrong venue, which is deemed waived. 11

Thus, unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to have been improperly laid, as for all practical intents and purposes, the venue, though technically wrong, may be acceptable to the parties for whose convenience the rules on venue had been devised. The trial court cannot pre-empt the defendant's prerogative to object to the improper laying of the venue by motu proprio dismissing the case.

Indeed, it was grossly erroneous for the trial court to have taken a

procedural short-cut by dismissing motu proprio the complaint on the ground of improper venue without first allowing the procedure outlined in the Rules of Court to take its proper course. Although we are for the speedy and expeditious resolution of cases, justice and fairness take primary importance. The ends of justice require that respondent trial court faithfully adhere to the rules of procedure to afford not only the defendant, but the plaintiff as well, the right to be heard on his cause.

WHEREFORE, in view of the foregoing, the decision of the Intermediate Appellate Court, now Court of Appeals, dated April 11, 1986, is hereby nullified and set aside. The complaint filed by petitioner before the Regional Trial Court of Antipolo, Branch LXXI is revived and reinstated. Respondent court is enjoined to proceed therein in accordance with law.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.