1.

May a property co-owner file a suit without joining other

co-owners?

ART. 487. Any one of the co-owners may bring an

action in ejectment.

This article covers all kinds of actions for the recovery of possession.
Article 487 includes forcible entry and unlawful detainer (accion interdictal),
recovery of possession (accion publiciana), and recovery of ownership
(accion de reivindicacion).[26] A co-owner may bring such an action without
the necessity of joining all the other co-owners as co-plaintiffs because the
suit is presumed to have been filed to benefit his co-owners. It should be
stressed, however, that where the suit is for the benefit of the plaintiff alone
who claims to be the sole owner and entitled to the possession of the
litigated property, the action should be dismissed.[27]

A co-owner may bring such an action, without the necessity of joining all the other
co-owners as co-plaintiffs, because the suit is deemed to be instituted for the
benefit of all. If the action is for the benefit of the plaintiff alone, such that
he claims possession for himself and not for the co-ownership, the action
will not prosper.

2. Is there any distinction between lack of capacity to sue

from lack of personality to sue?

Before anything else, it should be clarified that the plaintiff has no legal
capacity to sue and the pleading asserting the claim states no cause of
[23]

action are two different grounds for a motion to dismiss or are two different
[24]

affirmative defenses. Failure to distinguish between the lack of legal capacity

to sue from the lack of personality to sue is a fairly common mistake. The
difference between the two is explained by this Court in Columbia Pictures,
Inc. v. Court of Appeals: [25]

Among the grounds for a motion to dismiss under the Rules of Court are lack
of legal capacity to sue and that the complaint states no cause of action.
Lack of legal capacity to sue means that the plaintiff is not in the exercise of
his civil rights, or does not have the necessary qualification to appear in the
case, or does not have the character or representation he claims. On the
other hand, a case is dismissible for lack of personality to sue upon proof
that the plaintiff is not the real party-in-interest, hence grounded on failure to
state a cause of action. The term "lack of capacity to sue" should not be
confused with the term "lack of personality to sue." While the former refers
to a plaintiffs general disability to sue, such as on account of minority,
insanity, incompetence, lack of juridical personality or any other general
disqualifications of a party, the latter refers to the fact that the plaintiff is not
the real party- in-interest. Correspondingly, the first can be a ground for a
motion to dismiss based on the ground of lack of legal capacity to sue;
whereas the second can be used as a ground for a motion to dismiss based
on the fact that the complaint, on the face thereof, evidently states no cause
of action.

3. Can an extraterritorial service of summons be resorted to in

an action for personam?

As a rule, Philippine courts cannot try any case against a defendant who does not reside and
is not found in the Philippines because of the impossibility of acquiring jurisdiction over his
person unless he voluntarily appears in court; but when the case is an action in rem or quasi
in rem enumerated in Section 15, Rule 14 of the Rules of Court, Philippine courts have
jurisdiction to hear and decide the case because they have jurisdiction over the res, and
jurisdiction over the person of the non-resident defendant is not essential. In the latter
instance, extraterritorial service of summons can be made upon the defendant, and such
extraterritorial service of summons is not for the purpose of vesting the court with jurisdiction,
but for the purpose of complying with the requirements of fair play or due process, so that
the defendant will be informed of the pendency of the action against him and the possibility
that property in the Philippines belonging to him or in which he has an interest may be
subjected to a judgment in favor of the plaintiff, and he can thereby take steps to protect his
interest if he is so minded. On the other hand, when the defendant in an action in personam
does not reside and is not found in the Philippines, our courts cannot try the case against
him because of the impossibility of acquiring jurisdiction over his person unless he voluntarily
appears in court.

4. Can a court motu proprio dismiss a case?

Rule 9, Section 1 of the 1997 Rules of Civil Procedure states that defenses and objections
not pleaded either in a motion to dismiss or in the answer are deemed waived. The court
may only dismiss an action motu proprio in case of lack of jurisdiction over the
subject matter, litis pendentia, res judicata and prescription. Therefore, the trial
court in this case erred when it dismissed the petition motu proprio. It should have
waited for a motion to dismiss or a responsive pleading from respondent, raising the
objection or affirmative defense of improper venue, before dismissing the petition.

5. Is non inclusion of an indispensable party a ground for

dismissal?
Section 7, Rule 3 of the Rules of Court mandates that all indispensable parties should be
joined in a suit, viz.:

SEC. 7. Compulsory joinder of indispensable parties. Parties-in-interest without whom

no final determination can be had of an action shall be joined either as plaintiffs or
defendants.

"An indispensable party is one whose interest will be affected by the courts action in
the litigation, and without whom no final determination of the case can be had. The
partys interest in the subject matter of the suit and in the relief sought are so
inextricably intertwined with the other parties that his legal presence as a party to the
proceeding is an absolute necessity. In his absence, there cannot be a resolution of the
dispute of the parties before the court which is effective, complete, or equitable." Thus,
37

the absence of an indispensable party renders all subsequent actions of the court null
and void, for want of authority to act, not only as to the absent parties but even as to
those present.38

The non-joinder of indispensable parties is not a ground for the dismissal of an action. At
any stage of a judicial proceeding and/or at such times as are just, parties may be
added on the motion of a party or on the initiative of the tribunal concerned. If the
plaintiff refuses to implead an indispensable party despite the order of the court, that
court may dismiss the complaint for the plaintiffs failure to comply with the order. The
remedy is to implead the non-party claimed to be indispensable. (Emphases and
40

underscoring supplied)