I am the plaintiff in the above entitled case. I caused the preparation of this complaint; I read the allegations therein;
And they are true and correct of my own knowledge. Signed
Affiant
Subscribed and sworn to before me on this 2nd day of October 2001, in the City of Davao, Philippines.
Panfilo Corpuz Notary Public
That is what you call verification of a pleading. That the pleader, whether plaintiff or defendant, will attest that the allegations in his complaint or in his answer are true and correct of his own knowledge. And then, he will sign it, and then below that, there will be the so-called “JURAT” - Subscribed and sworn to before me on this ___ day of December 1997, in the City of Davao, Philippines. Then, signed by the notary public. Meaning, statements, in the pleading are confirmed to be correct, under oath, by the defendant. That is called, the verification of a pleading.
The purpose of verification is to insure good faith in the averments of a pleading. Although lack of verification in a pleading is a formal defect, not jurisdictional defect, and can be cured by amendment. (Phil. Bank of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960)
Q: What do you think will happen if a pleading is verified by a party and it turns out that the allegations are false? And that he deliberately made those allegations false and under oath.
A: Well, you know your Criminal Law. That will be a ground for the prosecution for the crime of perjury, because that is a false affidavit. But if the pleading is not verified, even if they are false, there is no perjury, because perjury requires a sworn statement by the accused.
Q: How is a pleading verified?
A: The law says, a pleading is verified by affidavit, that the affiant has read the pleading and that the allegations therein are, true and correct of his knowledge and belief.
Q: Suppose I will say, “the allegations there are true and correct based on my ‘information’ and ‘belief’.”
A: According to the paragraph 3, verification is not sufficient, because you can always claim na “Ganoon pala, hindi pala totoo. Sorry ha? That is my information eh.” Meron kang lusot ba. So, you must say ‘they are true and correct based on my own knowledge.’ ‘Information’ will not suffice.
Under the prior rule, a proper verification must be based on “knowledge” – the allegations therein are true and correct of my own knowledge. Now, “knowledge and belief”, and yet the third paragraph says, “based on knowledge, information and belief” is bawal. So, “knowledge, information and belief” is improper, but “knowledge and belief” only is proper. So tanggalin mo lang yung ‘information’ to make it proper.
Q: What happens if a pleading is not verified when the law requires it to be verified? Is that a fatal defect?
A: The pleading is defective but it is only a formal defect. The court still has jurisdiction over the case. If the defect is formal, it can be cured by amending the pleading and verifying. So, it is a defective pleading but the defect is formal, it is not substantial or jurisdictional. Therefore, the case should not be dismissed. The pleading can be amended to include verification.
Q: Does the law require every pleading to be verified?
A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT when otherwise specifically required by law or this rule. When the law or rules require a pleading to be verified, then it must be verified, otherwise it is formally detective. If the law is silent, verification is not necessary and the pleading is filed properly.
Now, if you ask me, what are the pleadings which the law or the Rules of Court require to be verified, there are many. They are scattered throughout the Rules and we will meet some in the course of going over the Rules. I think that question has already been asked 3 times in the BAR. The last time was in 1995. Meaning, the examiner was asking for the exceptions. You cannot find one rule or one section where you will get all the answers in that section because they are scattered, sabog eh. So, practically, it requires the Bar candidate to have a grasp of the entire Rules so that he will be able to recall as many pleadings as there are, which require. From time to time we will go on, we will meet them.
BAR QUESTION: Name as many pleadings as you can which must be verified. A: The following: (taken from the 4th year Remedial Law transcription)
3.) Rule 8 – when you deny the due execution of an actionable document; 4.) Summary Rules – all pleadings under summary rules should be verified; 5.) Special Civil Actions – petitions for certiorari, prohibition and mandamus. I remember that years ago, there was a student who asked me this question:
Q: Now, on the other hand, suppose a pleading does not require verification but the lawyer had it verified. What is the effect?
A: There is no effect, just surplusage! A pleading in general is not required to be verified. But I will verify it. Is there something wrong with it? Technically, none. But if it is required to be verified and you omit the verification, it is formally defective.
So he said, “In other words Sir, it is better pala that you will verify every pleading para sigurado. No harm man kaya? At least, even if there is a verification, when it is not required, no harm.” That’s true, no harm but if a lawyer does that, that only shows he does not know the rules. He cannot identify which pleading requires to be verified because he will automatically verify everything.
And the second effect, if a pleading is not verified, and the statement is false, there is no perjury. Now I verify it, and it turns out to be deliberately false, you are courting a criminal prosecution for your client for perjury. In other words, you create a crime of perjury when actually there should be none in the first place. The policy may be playing it safe but it produces other effects. Ignorance of the rules!
CERTIFICATION OF NON-FORUM SHOPPING
Sec. 5. Certification against forum shopping.-- The plaintiff or the principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith:
a)that he has not theretofore commence any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein;
b)if there is such other pending action or claim, a complete statement of the status thereof; and
c)if he should thereafter learn that the same or similar action or claim has been filed or pending, he shall report that fact within (5) days therefrom the court wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein, shall constitute indirect contempt of court, without the prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (n)
You know what is forum shopping? I think you have an idea about that, no? Forum Shopping is an unethical practice when a lawyer or a party files identical cases in two or more tribunals hoping that if he may fail in one case, he will succeed in another forum. Now, maybe this practice has become rampant before, not so much in Davao City but maybe in Metro Manila because most of the abuses in the bar happen in Metro Manila not in the provinces.
Maybe because of these abuses, the SC has decided to put down this provision in order to assure good faith. So everytime you file a complaint you must certify under oath that you have not filed any other case of this nature in any other court. More or less, you will follow the language found in the first paragraph. And this requirement was originally found in a Circular 04-94 of the SC. It is now incorporated in the new rules in Section 5.
Q: What is the effect if a complaint or a third-party complaint is filed in court without the certification on non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the complaint.
Now take note that the certification of non-forum Shopping is not only required in the complaint but the law says: “Complaint or other initiatory pleadings” such as counterclaims, cross-claims, third- party complaints. Therefore, all these pleadings require certification against forum shopping.
Now let’s go to the second paragraph.
Again, what is the possibility if the complaint is filed without the certification against forum shopping? That is a ground by itself for the dismissal of the complaint.
Q: Now, suppose I will amend the complaint because at first there was no certification of non- forum shopping, therefore, automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, “failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading, but shall be cause for the dismissal of the case without prejudice.” Meaning, you can still re-file the case with the inclusion of the certification against forum shopping. Pwede mong ulitin, you re-file the same complaint. That is the meaning of ‘without prejudice.’
“Unless otherwise provided, upon the motion after hearing” – meaning, it is now discretionary on the court to determine whether to dismiss or not to dismiss. Of course, it is a ground for dismissal, but the court may say, “Okay, we will just amend it. We will not dismiss.” But definitely, you cannot insist that because I already amended, everything is cured. That is for the court to determine whether to dismiss or not to dismiss. So, mere amendment does not cure automatically the missing certification.
I think this provision that mere amendment does not cure automatically the missing certification for non-forum shopping was taken by the SC from its ruling in the 1995 case of
249 SCRA 604
HELD: “The mere submission of a certification under Administrative Circular No. 04- 94 after the filing of a motion to dismiss on the ground of non-compliance thereof does not ipso facto operate as a substantial compliance; otherwise the Circular would lose its value or efficacy.”
As a matter of fact, if the certification is deliberately false there are many other sanctions – contempt, possible administrative actions against the lawyer or criminal case for perjury.
Now, in permissive counterclaims, there must be a certification of non-forum shopping, otherwise the case will be dismissed. Some lawyers argue that the certification is not required in compulsory counterclaims. It is only required in permissive counterclaims because in permissive counterclaims, the claimant has two choices: (1.) to file a counterclaim in the same case, or (2.) to file a separate case. Another view is that, since Section 5 does not distinguish, we should not distinguish.
However, that issue is now resolved in the 1998 case of
SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA
294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies only to permissive counterclaims because there is no possibility of forum shopping in compulsory counterclaims.
“The proviso in the second paragraph of Section 5, Rule 7, of the 1997 Rules of Civil Procedure, i.e., that the violation of the anti-forum shopping rule ‘shall not be curable by mere amendment . . . but shall be cause for the dismissal of the case without prejudice,’ being predicated on the applicability of the need for a certification against forum shopping, obviously does not include a claim which cannot be independently set up.”