FIRST DIVISION

[G.R. No. 128803. September 25, 1998.]

ASIAVEST LIMITED, petitioner, vs. THE COURT OF APPEALS

and ANTONIO HERAS, respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; VALIDITY OF FOREIGN

JUDGMENTS. — Under paragraph (b) of Section 50, Rule 39 of the Rules of
Court, which was the governing law at the time this case was decided by the
trial court and respondent Court of Appeals, a foreign judgment against a
person rendered by a court having jurisdiction to pronounce the judgment is
presumptive evidence of a right as between the parties and their successors in
interest by the subsequent title. However, the judgment may be repelled by
evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact. Also, Section 3(n) of Rule 131 of the New Rules of
Evidence provides that in the absence of proof to the contrary, a court, or judge
acting as such, whether in the Philippines or elsewhere, is presumed to have
acted in the lawful exercise of jurisdiction. Hence, once the authenticity of the
foreign judgment is proved, the burden to repel it on grounds provided for in
paragraph (b) of Section 50, Rule 39 of the Rules of Court is on the party
challenging the foreign judgment. EACTSH

2. ID.; ID.; ID.; ID.; CASE AT BAR. — At the pre-trial conference, HERAS
admitted the existence of the Hong Kong judgment. On the other hand,
ASIAVEST presented evidence to prove rendition, existence, and authentication
of the judgment by the proper officials. The judgment is thus presumed to be
valid and binding in the country from which it comes, until the contrary is
shown. Consequently, the first ground relied upon by ASIAVEST has merit. The
presumption of validity accorded foreign judgment would be rendered
meaningless were the party seeking to enforce it be required to first establish
its validity.
3. ID.; ACTIONS; MATTERS OF REMEDY AND PROCEDURE, GOVERNED
BY THE LAW OF THE FORUM. — Matters of remedy and procedure such as those
relating to the service of process upon the defendant are governed by the lex
fori or the law of the forum. SHIETa

4. ID.; EVIDENCE; RECORD OF PUBLIC DOCUMENTS OF A SOVEREIGN

AUTHORITY, TRIBUNAL, OFFICIAL BODY OR PUBLIC OFFICER, HOW PROVED. —
Under Sections 24 and 25, Rule 132 of the New Rules of Evidence, the record of
public documents of a sovereign authority, tribunal, official body, or public
officer may be proved by (1) an official publication thereof or (2) a copy
attested by the officer having the legal custody thereof which must be
accompanied if the record is not kept in the Philippines, with a certificate that
such officer has the custody. The certificate may be issued by a secretary of
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 the embassy or legation, consul general, consul, vice consul, or consular agent,
or any officer in the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office.
The attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be, and must be under the
official seal of the attesting officer. Nevertheless, the testimony of an expert
witness may be allowed to prove a foreign law. CcAIDa

5. ID.; ID.; ID.; HONGKONG LAW ON SERVICE OF SUMMONS PRESUMED

SIMILAR TO PHILIPPINE LAW — In the absence of proof of the Hong Kong law on
service of summons, the presumption of identity or similarity or the so-called
processual presumption shall come into play. It will thus be presumed that the
Hong Kong law on the matter is similar to the Philippine law.

6. ID.; ACTIONS; ACTION IN PERSONAM, IN REM AND QUASI IN REM;

DISTINGUISHED. — An action in personam is an action against a person on the
basis of his personal liability. An action in rem is an action against the thing
itself instead of against the person. An action quasi in rem is one wherein an
individual is named as defendant and the purpose of the proceeding is to
subject his interest therein to the obligation or lien burdening the property.
7. ID.; ID.; ACTION IN PERSONAM; JURISDICTION OVER THE PERSON OF
THE DEFENDANT, NECESSARY. — In an action in personam, jurisdiction over the
person of the defendant is necessary for the court to validly try and decide the
case. Jurisdiction over the person of a resident defendant who does not
voluntarily appear in court can be acquired by personal service of summons as
provided under Section 7, Rule 14 of the Rules of Court. If he cannot be
personally served with summons within a reasonable time, substituted service
may be made in accordance with Section 8 of said Rule. If he is temporarily out
of the country, any of the following modes of service may be resorted to: (1)
substituted service set forth in Section 8; (2) personal service outside the
country, with leave of court (3) service by publication, also with leave of court;
or (4) any other manner the court may deem sufficient. However, in an action
in personam wherein the defendant is a non-resident who does not voluntarily
submit himself to the authority of the court, personal service of summons
within the state is essential to the acquisition of jurisdiction over her person.
This method of service is possible if such defendant is physically present in the
country. If he is not found therein, the court cannot acquire jurisdiction over his
person and therefore cannot validly try and decide the case against him. An
exception was laid down in Gemperle v. Schenker wherein a non-resident was
served with summons through his wife, who was a resident of the Philippines
and who was his representative and attorney-in-fact in prior civil case filed by
him; moreover, the second case was a mere offshoot of the first case. HTSaEC

8. ID.; ID.; ACTION IN REM; JURISDICTION OVER THE PERSON OF

DEFENDANT, NOT A PREREQUISITE; SUMMONS MUST BE SERVED UPON
DEFENDANT TO SATISFY DUE PROCESS REQUIREMENT. — In a proceeding in
r e m o r quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the court acquires
jurisdiction over the res. Nonetheless, summons must be served upon the
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 defendant not for the purpose of vesting the court with jurisdiction but merely
for satisfying the due process requirements. Thus, where the defendant is a
non-resident who is not found in the Philippines and (1) the action affects the
personal status of the plaintiff; (2) the action relates to, or the subject matter of
which is property in the Philippines in which the defendant has or claims a lien
or interest; (3) the action seeks the exclusion of the defendant from any
interest in the property located in the Philippines; or (4) the property of the
defendant has been attached in the Philippines — service of summons may be
effected by (a) personal service out of the country, with leave of court; (b)
publication, also with leave of court; or (c) any other manner the court may
deem sufficient.
9. ID.; ID.; ENFORCEMENT OF FOREIGN JUDGMENT; SUMMONS MUST
BE SERVED ON DEFENDANT IN FOREIGN LAND; CASE AT BAR. — In the pre-trial
conference, the parties came up with stipulations of facts, among which was
that "the residence of defendant, Antonio Heras, is New Manila, Quezon City."
We note that the residence of HERAS insofar as the action for the enforcement
of the Hong Kong court judgment is concerned, was never in issue. He never
challenged the service of summons on him through a security guard in his
Quezon City residence and through a lawyer in his office in that city. In his
Motion to Dismiss, he did not question the jurisdiction of the Philippine court
over his person on the ground of invalid service of summons. What was in issue
was his residence as far as the Hong Kong suit was concerned. We therefore
conclude that the stipulated fact that HERAS "is a resident of New Manila,
Quezon City, Philippines" refers to his residence at the time jurisdiction over his
person was being sought by the Hong Kong court. With that stipulation of fact,
ASIAVEST cannot now claim that HERAS was a resident of Hong Kong at the
time. Accordingly, since HERAS was not a resident of Hong Kong and the action
against him was, indisputably, one in personam, summons should have been
personally served on him in Hong Kong. The extraterritorial service in the
Philippines was therefore invalid and did not confer on the Hong Kong court
jurisdiction over his person. It follows that the Hong Kong court judgment
cannot be given force and effect here in the Philippines for having been
rendered without jurisdiction. Even assuming that HERAS was formerly as
resident of Hong Kong, he was no longer so in November 1984 when the
extraterritorial service of summons was attempted to be made on him; As
declared by his secretary, which statement was not disputed by ASIAVEST,
HERAS left Hong Kong in October 1984 "for good." His absence in Hong Kong
must have been the reason why summons was not served on him therein; thus,
ASIAVEST was constrained to apply for leave to effect service in the Philippines,
and upon obtaining a favorable action on the matter, it commissioned the Sycip
Salazar Hernandez & Gatmaitan law firm to serve the summons here in the
Philippines. HERAS, who was also an absentee, should have been served with
summons in the same manner as a non-resident not found in Hong Kong.
Section 17, Rule 14 of the Rules of Court providing for extraterritorial service
will not apply because of the suit against him was in personam. Neither can we
apply Section 18, which allows extraterritorial service on a resident defendant
who is temporarily absent from the country, because even if HERAS be
considered as a resident of Hong Kong, the undisputed fact remains that he left
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 Hong Kong not only "temporarily" but "for good." aDHScI

DECISION

DAVIDE, JR, J : p

In issue is the enforceability in the Philippines of a foreign judgment. The

antecedents are summarized in the 24 August 1990 Decision 1 of Branch 107 of
the Regional Trial Court of Quezon City in Civil Case No. Q-52452; thus:,
The plaintiff Asiavest Limited filed a complaint on December 3,
1987 against the defendant Antonio Heras praying that said defendant
be ordered to pay to the plaintiff the amounts awarded by the Hong
Kong Court Judgment dated December 28, 1984 and amended on April
13, 1987 to wit:
1) US$1,810,265.40 or its equivalent in Hong Kong currency
at the time of payment with legal interest from December
28, 1984 until fully paid;

2) interest on the sum of US$1,500.00 at 9.875% per annum

from October 31, 1984 to December 28, 1984; and
3) HK$905.00 at fixed cost in the action; and

4) at least $80,000.00 representing attorney's fees, litigation

expenses and cost, with interest thereon from the date of
the judgment until fully paid.
On March 3, 1988 the defendant filed a Motion to Dismiss.
However, before the court could resolve the said motion, a fire which
partially razed the Quezon City Hall Building on June 11, 1988 totally
destroyed the office of this Court, together with all its records,
equipment and properties. On July 26, 1988, the plaintiff, through
counsel filed a Motion for Reconstitution of Case Records. The Court,
after allowing the defendant to react thereto, granted the said Motion
and admitted the annexes attached thereto as the reconstituted
records of this case per Order dated September 6, 1988. Thereafter,
the Motion to Dismiss, the resolution of which had been deferred, was
denied by the Court in its Order of October 4, 1988.
On October 19, 1988 defendant filed his Answer. The case was
then set for pre-trial conference. At the conference, the parties could
not arrive at any settlement. However, they agreed on the following
stipulations of facts:

1. The defendant admits the existence of the judgment dated

December 28, 1984 as well as its amendment dated April
13, 1987, but not necessarily the authenticity or validity
thereof;

2. The plaintiff is not doing business and is not licensed to do

business in the Philippines;
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 3. The residence of defendant, Antonio Heras, is New Manila,
Quezon City.
The only issue for this Court to determine is, whether or not the
judgment of the Hong Kong Court has been repelled by evidence of
want of jurisdiction, want of notice to the party, collusion, fraud or clear
mistake of law or fact, such as to overcome the presumption
established in Section 50, Rule 39 of the Rules of Court in favor of
foreign judgments.
In view of the admission by the defendant of the existence of the
aforementioned judgment (Pls. See Stipulations of Facts in the Order
dated January 5, 1989 as amended by the Order of January 18, 1989)
as well as the legal presumption in favor of the plaintiff as provided for
in paragraph (b), Sec. 50, (Ibid.), the plaintiff presented only
documentary evidence to show rendition, existence, and
authentication of such judgment by the proper officials concerned (Pls.
See Exhibits "A" thru "B", with their submarkings). In addition, the
plaintiff presented testimonial and documentary evidence to show its
entitlement to attorney's fees and other expenses of litigation . . .
On the other hand, the defendant presented two witnesses,
namely, Fortunata dela Vega and Russel Warren Lousich.
The gist of Ms. dela Vega's testimony is to the effect that no writ
of summons or copy of a statement of claim of Asiavest Limited was
ever served in the office of the Navegante Shipping Agency Limited
and/or for Mr. Antonio Heras, and that no service of the writ of
summons was either served on the defendant at his residence in New
Manila, Quezon City. Her knowledge is based on the fact that she was
the personal secretary of Mr. Heras during his JD Transit days up to the
latter part of 1972 when he shifted or diversified to shipping business
in Hong Kong; that she was in-charge of all his letters and
correspondence, business commitments, undertakings, conferences
and appointments, until October 1984 when Mr. Heras left Hong Kong
for good; that she was also the Officer-in-Charge or Office Manager of
Navegante Shipping Agency LTD, a Hong Kong registered and based
company acting as ships agent, up to and until the company closed
shop sometime in the first quarter of 1985 when shipping business
collapsed worldwide; that the said Company held office at 34-35
Connaught Road, Central Hong Kong and later transferred to Caxton
House at Duddel Street, Hong Kong, until the company closed shop in
1985; and that she was certain of such facts because she held office at
Caxton House up to the first quarter of 1985.
Mr. Lousich was presented as an expert on the laws of Hong
Kong, and as a representative of the law office of the defendant's
counsel who made a verification of the record of the case filed by the
plaintiff in Hong Kong against the defendant as well as the procedure
in serving Court processes in Hong Kong.
In his affidavit (Exh. "2") which constitutes his direct testimony
the said witness stated that:
The defendant was sued on the basis of his personal
guarantee of the obligations of Compania Hermanos de
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 Navegacion S.A. There is no record that a writ of summons was
served on the person of the defendant in Hong Kong, or that any
such attempt at service was made. Likewise, there is no record
that a copy of the judgment of the High Court was furnished or
served on the defendant; anyway, it is not a legal requirement to
do so under Hong Kong laws;

a) The writ of summons or claim can be served by the

solicitor (lawyer) of the claimant or plaintiff. In Hong Kong
there are no Court personnel who serve writs of summons
and/or most other processes.

b) If the writ of summons or claim (or complaint) is not

contested, the claimant or the plaintiff is not required to
present proof of his claim or complaint nor present
evidence under oath of the claim in order to obtain a
Judgment.
c) There is no legal requirement that such a Judgment or
decision rendered by the Court in Hong Kong [to] make a
recitation of the facts or the law upon which the claim is
based.
d) There is no necessity to furnish the defendant with a copy
of the Judgment or decision rendered against him.
e) In an action based on a guarantee, there is no established
legal requirement or obligation under Hong Kong laws that
the creditor must first bring proceedings against the
principal debtor. The creditor can immediately go against
the guarantor.
On cross examination, Mr. Lousich stated that before he was
commissioned by the law firm of the defendant's counsel as an expert
witness and to verify the records of the Hong Kong case he had been
acting as counsel for the defendant in a number of commercial
matters; that there was an application for service of summons upon the
defendant outside the jurisdiction of Hong Kong; that there was an
order of the Court authorizing service upon Heras outside of Hong
Kong, particularly in Manila or any other place in the Philippines (p. 9,
TSN, 2/14/90); that there must be adequate proof of service of
summons otherwise the Hong Kong Court will refuse to render
judgment (p. 10, ibid); that the mere fact that the Hong Kong Court
rendered judgment, it can be presumed that there was service of
summons; that in this case, it is not just a presumption because there
was an affidavit stating that service was effected in [ sic ] a particular
man here in Manila; that such affidavit was filed by one Jose R.
Fernandez of the firm Sycip Salazar on the 21st of December 1984 and
stated in essence that "on Friday the 23rd of November 1984 he
served the 4th defendant at No. 6 First Street, Quezon City by leaving
it at that address with Mr. Dionisio Lopez, the son-in-law of the 4th
defendant the copy of the writ and Mr. Lopez informed me and I barely
believed that he would bring the said writ to the attention of the 4th
"defendant" (pp. 11-12, ibid.); that upon filing of that affidavit the
Court was asked and granted judgment against the 4th defendant; and
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 that if the summons or claim is not contested, the claimant of the
plaintiff is not required to present proof of his claim or complaint or
present evidence under oath of the claim in order to obtain judgment;
and that such judgment can be enforced in the same manner as a
judgment rendered after full hearing.

The trial court held that since the Hong Kong court judgment had been
duly proved, it is a presumptive evidence of a right as between the parties;
hence, the party impugning it had the burden to prove want of jurisdiction over
his person. HERAS failed to discharge that burden. He did not testify to state
categorically and under oath that he never received summons. Even his own
witness Lousich admitted that HERAS was served with summons in his Quezon
City residence. As to De la Vega's testimony regarding non-service of summons,
the same was hearsay and had no probative value. prLL

As to HERAS' contention that the Hong Kong court judgment violated the
Constitution and the procedural laws of the Philippines because it contained no
statements of the facts and the law on which it was based, the trial court ruled
that since the issue related to procedural matters, the law of the forum, i.e .,
Hong Kong laws, should govern. As testified by the expert witness Lousich,
such legalities were not required under Hong Kong laws. The trial court also
debunked HERAS' contention that the principle of excussion under Article 2058
of the Civil Code of the Philippines was violated. It declared that matters of
substance are subject to the law of the place where the transaction occurred; in
this case, Hong Kong laws must govern.
The trial court concluded that the Hong Kong court judgment should be
recognized and given effect in this jurisdiction for failure of HERAS to overcome
the legal presumption in favor of the foreign judgment It then decreed; thus:
WHEREFORE, judgment is hereby rendered ordering defendant to
pay to the plaintiff the following sums or their equivalents in Philippine
currency at the time of payment: US$1,810,265.40 plus interest on the
sum of US$1,500,000.00 at 9.875% per annum from October 31, 1984
to December 28, 1984, and HK$905 as fixed cost, with legal interests
on the aggregate amount from December 28, 1984, and to pay
attorneys fees in the sum of P80,000.00.

ASIAVEST moved for the reconsideration of the decision. It sought an

award of judicial costs and an increase in attorney's fees in the amount of
US$19,346.45 with interest until full payment of the said obligations. On the
other hand, HERAS no longer opposed the motion and instead appealed the
decision to the Court of Appeals, which docketed the appeal as CA-G.R. CV No.
29513.

In its order 2 of 2 November 1990, the trial court granted ASIAVEST's

motion for reconsideration by increasing the award of attorney's fees to
"US$19,345.65 OR ITS EQUIVALENT IN PHILIPPINE CURRENCY, AND TO PAY THE
COSTS OF THIS SUIT," provided that ASIAVEST would pay the corresponding
filing fees for the increase. ASIAVEST appealed the order requiring prior
payment of filing fees. However, it later withdrew its appeal and paid the
additional filing fees.
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 On 3 April 1997, the Court of Appeals rendered its decision 3 reversing the
decision of the trial court and dismissing ASIAVEST's complaint without
prejudice. It underscored the fact that a foreign judgment does not of itself
have any extraterritorial application. For it to be given effect, the foreign
tribunal should have acquired jurisdiction over the person and the subject
matter. If such tribunal has not acquired jurisdiction, its judgment is void.
The Court of Appeals agreed with the trial court that matters of remedy
and procedure such as those relating to service of summons upon the
defendant are governed by the lex fori, which was, in this case, the law of Hong
Kong. Relative thereto, it gave weight to Lousich's testimony that under the
Hong Kong law, the substituted service of summons upon HERAS effected the
Philippines by the clerk of Sycip Salazar Hernandez & Gatmaitan firm would be
valid provided that it was done in accordance with Philippine laws. It then
stressed that where the action is in personam and the defendant is in the
Philippines, the summons should be personally served on the defendant
pursuant to Section 7, Rule 14 of the Rules of Court. 4 Substituted service may
only be availed of where the defendant cannot be promptly served in person,
the fact of impossibility of personal service should be explained in the proof of
service. It also found as persuasive HERAS' argument that instead of directly
using the clerk of the Sycip Salazar Hernandez & Gatmaitan law office, who was
not authorized by the judge of the court issuing the summons, ASIAVEST should
have asked for leave of the local courts to have the foreign summons served by
the sheriff or other court officer of the place where service was to be made, or
for special reasons by any person authorized by the judge. cdasia

The Court of Appeals agreed with HERAS that "notice sent outside the
state to a non-resident is unavailing to give jurisdiction in an action against him
personally for money recovery." Summons should have been personally served
on HERAS in Hong Kong, for, as claimed by ASIAVEST, HERAS was physically
present in Hong Kong for nearly 14 years. Since there was not even an attempt
to serve summons on HERAS in Hong Kong, the Hong Kong Supreme Court did
not acquire jurisdiction over HERAS. Nonetheless, it did not totally foreclose the
claim of ASIAVEST; thus:
While we are not fully convinced that [HERAS] has a meritorious
defense against [ASIAVEST's] claims or that [HERAS] ought to be
absolved of any liability, nevertheless, in view of the foregoing
discussion, there is a need to deviate from the findings of the lower
court in the interest of justice and fair play This, however, is without
prejudice to whatever action [ASIAVEST] might deem proper in order to
enforce its claims against [HERAS].

Finally, the Court of Appeals also agreed with HERAS that it was
necessary that evidence supporting the validity of the foreign judgment be
submitted and that our courts are not bound to give effect to foreign judgments
which contravene our laws and the principle of sound morality and public
policy.
ASIAVEST forthwith filed the instant petition alleging that the Court of
Appeals erred in ruling that
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 I.
. . . IT WAS NECESSARY FOR [ASIAVEST] TO PRESENT EVIDENCE
'SUPPORTING THE VALIDITY OF THE JUDGMENT';
II.
. . . THE SERVICE OF SUMMONS ON [HERAS] WAS DEFECTIVE UNDER
PHILIPPINE LAW;
III.
. . . SUMMONS SHOULD HAVE BEEN PERSONALLY SERVED ON HERAS IN
HONG KONG;
IV.

. . . THE HONG KONG SUMMONS SHOULD HAVE BEEN SERVED WITH

LEAVE OF PHILIPPINE COURTS;

V.
. . . THE FOREIGN JUDGMENT 'CONTRAVENES PHILIPPINE LAWS, THE
PRINCIPLES OF SOUND MORALITY, AND THE PUBLIC POLICY OF THE
PHILIPPINES.

Being interrelated, we shall take up together the assigned errors.

Under paragraph (b) of Section 50, Rule 39 of the Rules of Court, 5 which
was the governing law at the time this case was decided by the trial court and
respondent Court of Appeals, a foreign judgment against a person rendered by
a court having jurisdiction to pronounce the judgment is presumptive evidence
of a right as between the parties and their successors in interest by the
subsequent title. However, the judgment may be repelled by evidence of want
of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
law or fact.

Also, Section 3(n) of Rule 131 of the New Rules of Evidence provides that
in the absence of proof to the contrary, a court, or judge acting as such,
whether in the Philippines or elsewhere, is presumed to have acted in the lawful
exercise of jurisdiction.
Hence, once the authenticity of the foreign judgment is proved, the
burden to repel it on grounds provided for in paragraph (b) of Section 50, Rule
39 of the Rules of Court is on the party challenging the foreign judgment —
HERAS in this case. cdrep

At the pre-trial conference, HERAS admitted the existence of the Hong

Kong judgment. On the other hand, ASIAVEST presented evidence to prove
rendition, existence, and authentication of the judgment by the proper officials.
The judgment is thus presumed to be valid and binding in the country from
which it comes, until the contrary is shown. 6 Consequently, the first ground
relied upon by ASIAVEST has merit. The presumption of validity accorded
foreign judgment would be rendered meaningless were the party seeking to
enforce it be required to first establish its validity.
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 The main argument raised against the Hong Kong judgment is that the
Hong Kong Supreme Court did not acquire jurisdiction over the person of
HERAS. This involves the issue of whether summons was properly and validly
served on HERAS. It is settled that matters of remedy and procedure such as
those relating to the service of process upon the defendant are governed by the
lex fori or the law of the forum, 7 i.e., the law of Hong Kong in this case. HERAS
insisted that according to his witness Mr. Lousich, who was presented as an
expert on Hong Kong laws, there was no valid service of summons on him.

In his counter-affidavit, 8 which served as his direct testimony per

agreement of the parties, 9 Lousich declared that the record of the Hong Kong
case failed to show that a writ of summons was served upon HERAS in Hong
Kong or that any such attempt was made. Neither did the record show that a
copy of the judgment of the court was served on HERAS. He stated further that
under Hong Kong laws (a) a writ of summons could be served by the solicitor of
the claimant or plaintiff; and (b) where the said writ or claim was not contested,
the claimant or plaintiff was not required to present proof under oath in order to
obtain judgment.
On cross-examination by counsel for ASIAVEST, Lousich testified that the
Hong Kong court authorized service of summons on HERAS outside of its
jurisdiction, particularly in the Philippines. He admitted also the existence of an
affidavit of one Jose R. Fernandez of the Sycip Salazar Hernandez & Gatmaitan
law firm stating that he (Fernandez) served summons on HERAS on 13
November 1984 at No. 6, 1st St., Quezon City, by leaving a copy with HERAS's
son-in-law Dionisio Lopez. 10 On redirect examination, Lousich declared that
such service of summons would be valid under Hong Kong laws provided that it
was in accordance with Philippine laws. 11
We note that there was no objection on the part of ASIAVEST on the
qualification of Mr. Lousich as an expert on the Hong Kong law. Under Sections
24 and 25, Rule 132 of the New Rules of Evidence, the record of public
documents of a sovereign authority, tribunal, official body, or public officer may
be proved by (1) an official publication thereof or (2) a copy attested by the
officer having the legal custody thereof, which must be accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the
custody. The certificate may be issued by the secretary of the embassy or
legation, consul general, consul, vice consul, or consular agent, or any officer in
the foreign service of the Philippines stationed in the foreign country in which
the record is kept, and authenticated by the seal of his office. The attestation
must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be, and must be under the official seal of
the attesting officer.

Nevertheless, the testimony of an expert witness may be allowed to prove

a foreign law. An authority 12 on private international law thus noted:
Although it is desirable that foreign law be proved in accordance
with the above rule, however, the Supreme Court held in the case of
Willamettee Iron and Steel Works v. Muzzal , 13 that Section 41, Rule
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 123 (Section 25, Rule 132 of the Revised Rules of Court) does not
exclude the presentation of other competent evidence to prove the
existence of a foreign law. In that case, the Supreme Court
considered the testimony under oath of an attorney-at-law of San
Francisco, California, who quoted verbatim a section of California
Civil Code and who stated that the same was in force at the time
the obligations were contracted, as sufficient evidence to establish
the existence of said law. Accordingly, in line with this view, the
Supreme Court in the Collector of Internal Revenue v. Fisher et al.,
14 upheld the Tax Court in considering the pertinent law of

California as proved by the respondents' witness. In that case, the

counsel for respondent "testified that as an active member of the
California Bar since 1951, he is familiar with the revenue and
taxation laws of the State of California. When asked by the lower
court to state the pertinent California law as regards exemption of
intangible personal properties, the witness cited Article 4, Sec.
13851 (a) & (b) of the California Internal and Revenue Code as
published in Derring's California Code, a publication of Bancroft-
Whitney Co., Inc. And as part of his testimony, a full quotation of
the cited section was offered in evidence by respondents."
Likewise, in several naturalization cases, it was held by the Court
that evidence of the law of a foreign country on reciprocity
regarding the acquisition of citizenship, although not meeting the
prescribed rule of practice, may be allowed and used as basis for
favorable action, if, in the light of all the circumstances, the Court
is "satisfied of the authenticity of the written proof offered." 15
Thus, in a number of decisions, mere authentication of the Chinese
Naturalization Law by the Chinese Consulate General of Manila was
held to be competent proof of that law. 16

There is, however, nothing in the testimony of Mr. Lousich that touched
on the specific law of Hong Kong in respect of service of summons either in
actions in rem or in personam, and where the defendant is either a resident or
nonresident of Hong Kong. In view of the absence of proof of the Hong Kong law
on this particular issue, the presumption of identity or similarity or the so-called
processual presumption shall come into play. It will thus be presumed that the
Hong Kong law on the matter is similar to the Philippine law. 17

As stated in Valmonte vs. Court of Appeals, 18 it will be helpful to

determine first whether the action is in personam, in rem, or quasi in rem
because the rules on service of summons under Rule 14 of the Rules of Court of
the Philippines apply according to the nature of the action. prcd

An action in personam is an action against a person on the basis of his

personal liability. An action in rem is an action against the thing itself instead of
against the person. 19 An action quasi in rem is one wherein an individual is
named as defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening the property. 20

In an action in personam, jurisdiction over the person of the defendant is

CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 necessary for the court to validly try and decide the case. Jurisdiction over the
person of a resident defendant who does not voluntarily appear in court can be
acquired by personal service of summons as provided under Section 7, Rule 14
of the Rules of Court. If he cannot be personally served with summons within a
reasonable time, substituted service may be made in accordance with Section 8
of said Rule. If he is temporarily out of the country, any of the following modes
of service may be resorted to: (1) substituted service set forth in Section 8; 21
(2) personal service outside the country, with leave of court; (3) service by
publication also with leave of court; 22 or (4) any other manner the court may
deem sufficient. 23
However, in an action in personam wherein the defendant is a non-
resident who does not voluntarily submit himself to the authority of the court,
personal service of summons within the state is essential to the acquisition of
jurisdiction over her person. 24 This method of service is possible if such
defendant is physically present in the country. If he is not found therein, the
court cannot acquire jurisdiction over his person and therefore cannot validly
try and decide the case against him. 25 An exception was laid down in Gemperle
v. Schenker 26 wherein a non-resident was served with summons through his
wife, who was a resident of the Philippines and who was his representative and
attorney-in-fact in a prior civil case filed by him; moreover, the second case was
a mere offshoot of the first case.

On the other hand, in a proceeding in rem or quasi in rem, jurisdiction

over the person of the defendant is not a prerequisite to confer jurisdiction on
the court provided that the court acquires jurisdiction over the res.
Nonetheless, summons must be served upon the defendant not for the purpose
of vesting the court with jurisdiction but merely for satisfying the due process
requirements. 27 Thus, where the defendant is a non-resident who is not found
in the Philippines and (1) the action affects the personal status of the plaintiff;
(2) the action relates to, or the subject matter of which is property in the
Philippines in which the defendant has or claims a lien or interest; (3) the action
seeks the exclusion of the defendant from any interest in the property located
in the Philippines; or (4) the property of the defendant has been attached in the
Philippines — service of summons may be effected by (a) personal service out
of the country, with leave of court; (b) publication, also with leave of court; or
(c) any other manner the court may deem sufficient. 28
In the case at bar, the action filed in Hong Kong against HERAS was in
personam, since it was based on his personal guarantee of the obligation of the
principal debtor. Before we can apply the foregoing rules, we must determine
first whether HERAS was a resident of Hong Kong.

Fortunata de la Vega, HERAS's personal secretary in Hong Kong since

1972 until 1985, 29 testified that HERAS was the President and part owner of a
shipping company in Hong Kong during all those times that she served as his
secretary. He had in his employ a staff of twelve. 30 He had "business
commitments, undertakings, conferences, and appointments until October
1984 when [he] left Hong Kong for good." 31 HERAS's other witness, Russel
Warren Lousich, testified that he had acted as counsel for HERAS "for a number
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 of commercial matters." 32 ASIAVEST then infers that HERAS was a resident of
Hong Kong because he maintained a business there.

It must be noted that in his Motion to Dismiss, 33 as well as in his Answer

34 to ASIAVEST's complaint for the enforcement of the Hong Kong court
judgment, HERAS maintained that the Hong Kong court did not have jurisdiction
over him because the fundamental rule is that jurisdiction in personam over
non-resident defendants, so as to sustain a money judgment, must be based
upon personal service of summons within the state which renders the
judgment. 35

For its part, ASIAVEST, in its Opposition to the Motion to Dismiss 36

contended: "The question of Hong Kong court's 'want of jurisdiction' is therefore
a triable issue if it is to be pleaded by the defendant to 'repel' the foreign
judgment. Facts showing jurisdictional lack (e.g. that the Hong Kong suit was in
personam, that defendant was not a resident of Hong Kong when the suit was
filed or that he did not voluntarily submit to the Hong Kong court's jurisdiction)
should be alleged and proved by the defendant." 37

In his Reply (to the Opposition to Motion to Dismiss), 38 HERAS argued

that the lack of jurisdiction over his person was corroborated by ASIAVEST's
allegation in the complaint that he "has his residence at No. 6, 1st St., New
Manila, Quezon City, Philippines." He then concluded that such Judicial
admission amounted to evidence that he was and is not a resident of Hong
Kong.

Significantly, in the pre-trial conference, the parties came up with

stipulations of facts, among which was that "the residence of defendant,
Antonio Heras, is New Manila, Quezon City." 39
We note that the residence of HERAS insofar as the action for the
enforcement of the Hong Kong court judgment is concerned, was never in
issue. He never challenged the service of summons on him through a security
guard in his Quezon City residence and through a lawyer in his office in that
city. In his Motion to Dismiss, he did not question the jurisdiction of the
Philippine court over his person on the ground of invalid service of summons.
What was in issue was his residence as far as the Hong Kong suit was
concerned. We therefore conclude that the stipulated fact that HERAS "is a
resident of New Manila, Quezon City, Philippines" refers to his residence at the
time jurisdiction over his person was being sought by the Hong Kong court.
With that stipulation of fact, ASIAVEST cannot now claim that HERAS was a
resident of Hong Kong at the time.

Accordingly, since HERAS was not a resident of Hong Kong and the action
against him was, indisputably, one in personam, summons should have been
personally served on him in Hong Kong. The extraterritorial service in the
Philippines was therefore invalid and did not confer on the Hong Kong court
jurisdiction over his person. It follows that the Hong Kong court judgment
cannot be given force and effect here in the Philippines for having been
rendered without jurisdiction.
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 Even assuming that HERAS was formerly a resident of Hong Kong, he was
no longer so in November 1984 when the extraterritorial service of summons
was attempted to be made on him. As declared by his secretary, which
statement was not disputed by ASIAVEST, HERAS left Hong Kong in October
1984 "for good." 40 His absence in Hong Kong must have been the reason why
summons was not served on him therein; thus, ASIAVEST was constrained to
apply for leave to effect service in the Philippines, and upon obtaining a
favorable action on the matter, it commissioned the Sycip Salazar Hernandez &
Gatmaitan law firm to serve the summons here in the Philippines.
I n Brown v. Brown, 41 the defendant was previously a resident of the
Philippines. Several days after a criminal action for concubinage was filed
against him, he abandoned the Philippines. Later, a proceeding quasi in rem
was instituted against him. Summons in the latter case was served on the
defendant's attorney-in-fact at the latter's address. The Court held that under
the facts of the case, it could not be said that the defendant was "still a
resident of the Philippines because he ha[d] escaped to his country and [was]
therefore an absentee in the Philippines." As such, he should have been
"summoned in the same manner as one who does not reside and is not found in
the Philippines."

Similarly, HERAS, who was also an absentee, should have been served
with summons in the same manner as a non-resident not found in Hong Kong.
Section 17, Rule 14 of the Rules of Court providing for extraterritorial service
will not apply because the suit against him was in personam. Neither can we
apply Section 18, which allows extraterritorial service on a resident defendant
who is temporarily absent from the country, because even if HERAS be
considered as a resident of Hong Kong, the undisputed fact remains that he left
Hong Kong not only "temporarily" but "for good." cdll

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered DENYING

the petition in this case and AFFIRMING the assailed Judgment of the Court of
Appeals in CA-G.R. CV No. 29513.
No costs.

SO ORDERED.

Bellosillo, Vitug and Panganiban, JJ ., concur.

Quisumbing, J ., took no part.

Footnotes
1. Annex "B" of Petition; Rollo , 66-74. Per Judge (now Associate Justice of the
Court of Appeals) Delilah Vidallon Magtolis.

2. Original Record (OR), 326.

3. Annex "A" of Petition; Rollo , 49-65. Per Mabutas, R., Jr., J., with the
concurrence of Imperial, J., and Aliño-Hermachuelos, P., JJ.

CD Technologies Asia, Inc. © 2021 cdasiaonline.com

 4. This section (now Section 6, Rule 14 of the 1997 Rules of Civil Procedure)
provided:

SEC. 7. Personal Service of Summons — The summons shall be

served by handling a copy thereof to the defendant in person or if he
refuses to receive it by tendering it to him.
5. This Section is now Section 48 of Rule 39 of the 1997 Rules of Civil Procedure
with the following amendments: (1) inclusion of final orders of a tribunal of a
foreign country; and (2) clarification that the grounds to repel a foreign
judgment or final order are applicable to both judgment or final order upon a
title to a specific thing and one against a person.
6. Northwest Orient Airlines, Inc. v. Court of Appeals, 241 SCRA 192, 199
[1995].

7. Ibid.
8. Exhibit "2," OR, Civil Case No. Q-52452, 197-200.

9. TSN, 14 February 1990, 5.

10. Id., 11-12.

11. Id., 13-15.
12. JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 101-102 [1995].
13. 61 Phil. 471 [1935].

14. 1 SCRA 93 [1961].

15. Citing Pardo v. Republic, 85 Phil. 323 [1950]; Delgado v. Republic, G.R. No.
L-2546, January 28, 1950.

16. Citing Yap v. Solicitor General , 81 Phil. 468; Yee Bo Mann v. Republic, 83
Phil. 749; Go v. Anti-Chinese League , 47 O.G. 716; Leelin v. Republic , 47 O.G.
694.
17. Northwest Orient Airlines, Inc. v. Court of Appeals, supra note 6, at 200.
18. 252 SCRA 92, 99 [1996].

19. Dial Corp. v. Soriano , 161 SCRA 737 [1988].

20. Brown v. Brown , 3 SCRA 451, 456 [1961].
21. Montalban v. Maximo, 22 SCRA 1070, 1078-1081 [1968]; Valmonte v. Court
of Appeals, supra note 18 at 100; 1 MANUEL V. MORAN, COMMENTS ON THE
RULES OF COURT 459 [1979] (hereafter I MORAN).
22. Section 18 in relation to Section 17, Rule 14 of the Rules of Court;
Montalban v. Maximo, supra note 21 at 1080-1081; Valmonte v. Court of
Appeals, supra note 18, at 100; 1 MORAN 459.
23. Section 18 in relation to Section 17, Rule 14 of the Rules of Court. These
provisions read:

SEC. 18. Residents temporarily out of the Philippines — When an

action is commenced against a defendant who ordinarily resides within the
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
 Philippines, but who is temporarily out of it, service may, by leave of court
be effected out of the Philippines, as under the preceding section.
SEC. 17. Extraterritorial service — When the defendant does not
reside and is not found in the Philippines and the action affects the personal
status of the plaintiff or relates to, or the subject of which is, property within
the Philippines, in which the defendant has or claims a lien or interest,
actual or contingent, or in which the relief demanded consists, wholly or in
part, in excluding the defendant from any interest therein, or the property
of the defendant has been attached within the Philippines, service may, by
leave of court, be effected out of the Philippines by personal service as
under section 7; or by publication in a newspaper of general circulation in
such places and for such time as the court may order, in which case a copy
of the summons and order of the court shall be sent by registered mail to
the last known address of the defendant, or in any other manner the court
may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) days after notice
within which the defendant must answer.

24. Boudard v. Tait, 67 Phil. 170, 174-175 1 [1939].

25. 1 MORAN 456.
26. 19 SCRA 45 [1967].

27. Valmonte v. Court of Appeals, supra note 18 at 100-101.

28. Section 17, Rule 14 of the Rules of Court.

29. TSN, 5 July 1989, 13-14, 23.

30. Id., 13-14, 20-23.

31. Exhibit, "1," OR, 189.

32. TSN, 14 February 1990, 7.

33. OR, 31-40.

34. Id., 101-110.

35. Citing Boudard v. Tait , supra note 24.
36. OR, 47-53.

37. Id., 52, Emphasis supplied.

38. OR, 61-69.

39. OR, 127.

40. Exhibit "1."

41. Supra note 20.

CD Technologies Asia, Inc. © 2021 cdasiaonline.com