Defendant whose identity or whereabouts unknown | Service upon | Summons (RULE 14) | CIVIL PROCEDURE

Below is a comprehensive discussion of service of summons upon a defendant in the Philippines whose identity or whereabouts are unknown under the Rules of Court (particularly Rule 14, as amended). It covers the relevant provisions, the requirements, the procedure, and related points of law and jurisprudence.

I. Legal Framework

A. Governing Rule: Rule 14, 2019 Amendments to the Rules of Court

  • Section 16, Rule 14 of the 2019 Amendments to the Rules of Court governs service of summons upon a defendant whose identity or whereabouts are unknown. The text largely echoes the 1997 Rules but clarifies certain requirements for publication and proof of diligence.

  • Before resorting to service by publication under Section 16, a plaintiff must show that the defendant’s whereabouts are unknown and cannot be ascertained by diligent inquiry, or that the defendant is sued under a designation such as “unknown owner,” “unknown heirs,” or similar.

Important Note: While references to the “1997 Rules” may appear in older decisions or commentaries, the 2019 Amendments now control current practice, subject to transitional guidelines that the Supreme Court may issue.

II. Nature and Purpose of Summons

  1. General Rule: Summons is the means by which the court acquires jurisdiction over the person of the defendant in an action in personam, or gives notice of the action in actions in rem or quasi in rem.
  2. Primary Modes of Service:
    • Personal service (Rule 14, Sec. 6)
    • Substituted service (Rule 14, Sec. 7)
    • Service by publication (Rule 14, Secs. 14, 15, 16), under specific circumstances.

When the defendant is known and can be found, courts strictly require either personal or valid substituted service. Service by publication is exceptional and allowed only when expressly authorized by statute or procedural rule, and typically in (a) actions in rem or quasi in rem, or (b) in personam actions where the defendant’s whereabouts are unknown (provided certain conditions are met).

III. Service of Summons Upon a Defendant Whose Identity or Whereabouts Are Unknown

A. Rule 14, Section 16 (2019 Amendments)

“Sec. 16. Service upon defendant whose identity or whereabouts are unknown. — In any action where the defendant is designated as an unknown owner, or the like, or whenever his or her whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him or her by publication in a newspaper of general circulation in such places and for such time as the court may order. …”

Key Points and Requirements:

  1. Unknown Identity or Whereabouts

    • The rule explicitly contemplates two related scenarios:
      a. The defendant is sued as an unknown owner, unknown heir, or similarly lacks a specific name or identity in the pleading.
      b. The defendant’s whereabouts, although his/her identity might be known, cannot be ascertained by diligent inquiry.

  2. Diligent Inquiry

    • Before the court grants leave for service by publication, the plaintiff must show by affidavit or other evidence that diligent efforts were made to locate the defendant or ascertain his/her whereabouts, but to no avail.
    • This commonly includes personal visits or inquiries at the defendant’s last known address, interviews with neighbors or relatives, registry checks, or use of available public records.

  3. Leave of Court

    • The plaintiff must file a motion or ex parte application for leave of court to serve summons by publication, attaching an affidavit detailing attempts to find the defendant.
    • The court must be satisfied that personal or substituted service is not feasible because the defendant’s whereabouts remain unknown despite sincere and diligent efforts.

  4. Publication in a Newspaper of General Circulation

    • Once the court authorizes service by publication, the summons must be published once a week for two (2) consecutive weeks, or as the court may direct.
    • The publication must be in a newspaper of general circulation in the Philippines, and often specifically in the place where the action is pending (depending on court order).
    • Simultaneous posting of the summons and order in the courthouse (or other places as the court may require) is also typically mandated.

  5. Mailing Requirement

    • If the defendant’s last known address is discovered at any point, copies of the summons and other pertinent pleadings (e.g., complaint) must be sent by registered mail or other recognized mail service to that address, if feasible.
    • Even if the address is not currently valid, the attempt to mail should be done if there is any address plausibly associated with the defendant.

  6. Compliance and Proof of Service

    • After completing publication and any required mailing, the plaintiff must submit proof of publication (e.g., affidavit of the publisher, copy of the newspaper issues) and proof of mailing (registry return cards or certification).
    • This proof is crucial for the court to determine if service of summons by publication was validly perfected.

B. Distinction from Other Types of Service by Publication

  1. Section 15, Rule 14 (Extraterritorial Service)

    • Applies when the defendant is a non-resident who is not found in the Philippines and the action is in rem or quasi in rem (e.g., affecting personal status, property within the Philippines).
    • Although also involving publication, extraterritorial service requires different allegations (defendant is outside the Philippines, etc.) and is distinct from the scenario where the defendant’s location is simply unknown.

  2. Section 14, Rule 14 (Service upon Residents Temporarily Outside the Philippines)

    • If the defendant is temporarily out of the country, the court may order service by publication (with mailing to the last known address) even though the defendant is a resident.

In contrast, Section 16 is specifically for scenarios where the defendant is here or presumably here, but his/her precise whereabouts cannot be determined, or the identity itself is unknown (e.g., “unknown heirs,” “unknown occupants,” “unknown owners”).

IV. Procedural Steps

Below is a streamlined outline of how a plaintiff (or counsel) may proceed when the defendant’s identity or whereabouts are unknown:

  1. Draft the Complaint

    • If the defendant is truly unknown by name or identity, label them in the caption (e.g., “Unknown Owner,” “Heirs of X, names and addresses unknown,” “Unknown Occupants,” etc.).
    • Include allegations detailing efforts made to ascertain identity or location.

  2. File a Motion for Leave (Ex Parte)

    • After the summons is issued but cannot be served personally or via substituted service, file a motion for leave of court to serve by publication under Rule 14, Sec. 16.
    • Attach an affidavit of diligent inquiry explaining precisely what steps were taken to locate or identify the defendant (talking to neighbors, checking records, employing all possible leads).

  3. Court Evaluation and Order

    • The court reviews the motion, supporting affidavit, and available evidence.
    • If convinced that personal or substituted service is truly not feasible because of unknown whereabouts/identity, the court issues an Order allowing service by publication and specifying:
      • The newspaper where the summons shall be published.
      • The frequency and period (usually once a week for two consecutive weeks).
      • Any requirement of posting on the court’s bulletin board or at a public place near the defendant’s last known address (if any).

  4. Publication and Mailing

    • The summons (together with the Order and a copy of the complaint, if directed) is published in the chosen newspaper for the specified length of time.
    • If any last known address is on record, mail copies to that address by registered mail or recognized courier.

  5. Submission of Proof of Publication and Mailing

    • After the publication period, the publisher provides an affidavit and copies of the published issues.
    • The plaintiff also secures registry return receipts or certifications from the postal service/courier if mailing was done.
    • These proofs are filed with the court to establish completion of service by publication.

  6. Commencement of Period to Answer

    • Under the Rules, the defendant’s period to answer is counted from the date of the last publication (or as the court may direct).
    • If no Answer is filed, the plaintiff may move for the defendant to be declared in default, subject to the rules on default.

V. Jurisprudential Points

  1. Strict Compliance

    • Courts require strict, faithful compliance with the requirements of Rule 14 on service by publication, because it is an extraordinary mode of service. (See e.g., Santos v. PNOC Exploration Corp., G.R. No. 170943 [2007].)
    • A mere allegation that the defendant was not found does not suffice; the plaintiff must show real, earnest efforts to locate the defendant.

  2. Actions in Personam vs. In Rem/Quasi in Rem

    • As a rule, service by publication in an in personam action is not favored because personal jurisdiction typically requires personal or substituted service.
    • However, for in rem or quasi in rem actions (e.g., land registration, estate proceedings, foreclosure of real property within the Philippines), summons by publication confers jurisdiction over the res.
    • Nonetheless, Rule 14, Sec. 16 permits service by publication even in a personal action if the defendant is truly unlocatable, though the remedies and ultimate effect on enforceability can be more complicated.

  3. Due Process Considerations

    • Service by publication is anchored on the principle that the best possible notice must be given under the circumstances. If the defendant’s whereabouts are unknown, publication + mailing (where possible) is deemed the next best method to apprise them of the pending suit.

  4. Diligent Effort

    • Philippine courts have repeatedly emphasized that “diligent effort” is not a formality or mere claim; the plaintiff must demonstrate genuine attempts to find the defendant (checking addresses on file, asking neighbors, verifying with government registries, etc.). (See Manotoc v. CA, G.R. No. 130974 [2001], which—while focusing on substituted service—underscores how earnest inquiry must be carried out).

VI. Practical Pointers

  1. Document Every Attempt

    • Lawyers should advise clients to keep written records or sworn statements of all steps taken to locate the defendant or ascertain identity. These records will form the basis of the affidavit in support of the motion for service by publication.

  2. Choose the Newspaper Carefully

    • Ensure the chosen newspaper truly has general circulation in the area directed by the court’s order. This is important for validity.

  3. Observe Deadlines and Timelines

    • Publication must strictly follow the schedule (e.g., once a week for two consecutive weeks). Missing the second publication or not publishing on the right day can void the entire process.

  4. Draft the Summons and Court Order Precisely

    • The summons to be published, as well as the court’s Order granting leave for publication, must accurately identify the parties, the case number, the nature of the action, the relief sought, and the directive to answer within the given time.

  5. Coordinate with the Publisher

    • Ascertain that the publisher provides an affidavit of publication promptly after the second publication date. Submit this proof without delay.

  6. Effect on the Action

    • If the defendant fails to answer after publication, the plaintiff may move for default. However, if it is an in personam action, be mindful that the resulting default judgment might have limitations on enforceability if the defendant later contests jurisdiction. In in rem or quasi in rem actions (e.g., real property within the Philippines is the subject of litigation), a judgment in favor of the plaintiff can bind the property or “the res.”

VII. Summary

  • Service by publication upon a defendant whose identity or whereabouts are unknown (Rule 14, Sec. 16) is an extraordinary remedy requiring leave of court.
  • The plaintiff must establish, through a sworn statement and supporting evidence, that diligent inquiry has been made and the defendant truly cannot be located.
  • The court may then order summons to be published once a week for two consecutive weeks (or as directed) in a newspaper of general circulation, with additional posting and possible mailing to the last known address.
  • Proper proof of compliance (affidavit of publication, registry receipts, etc.) must be filed to perfect service by publication.
  • While valid for giving the defendant notice, if the action is purely in personam, actual enforcement of the judgment might face jurisdictional challenges if the defendant appears to contest. In in rem or quasi in rem actions, service by publication effectively notifies all interested parties regarding the property, status, or res involved.

In essence, service upon a defendant whose identity or whereabouts are unknown is carefully circumscribed to ensure due process despite the defendant’s unavailability. Counsel must meticulously comply with the Rules’ requirements—diligent inquiry, a motion for leave, court approval, strict publication requirements, and prompt submission of proof—lest the service be declared void and the entire suit be compromised.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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