Saturday, December 10, 2011

Ad cautelam: filing of pleadings and appearing in court to question its jurisdiction or as a precautionary measure

Plain English / Plain Language version of “ad cautelam”

Instead of “ad cautelam” or “ex abundanti ad cautelam,” lawyers should simply use the phrase “with express reservation on jurisdiction.” (By the speaker on Civil Procedure, from Romulo Mabanta, in an MCLE seminar sponsored by the Quezon City IBP)
The Latin term “ad cautelam” can be translated into English as “for security,” “as a precaution,” or “to be on the safe side.” The phrase ex abundanti ad cautela” means with extreme caution.”

The Revised Rules of Court do not have a specific provision on ad cautelam. But lawyers have used it in at least two ways:


[1] To question a court’s jurisdiction and at the same time be able to file pleadings, lawyers can caption their pleadings as “ad cautelam.” In court hearings, lawyers must inform the judge that they are questioning the court’s jurisdiction;

[2] As a precautionary measure to preserve a party’s remedies.

Using ad cautelam to file pleadings or ask for reliefs while questioning a court’s jurisdiction

[1] GMA’s electoral sabotage case before the Pasay City RTCLawyers for former President Gloria Macapagal-Arroyo (GMA) have been filing pleadings captioned “ad cautelam” with the Pasay City Regional Trial Court. They are questioning before the Supreme Court the RTC’s jurisdiction over the electoral sabotage case filed by the COMELEC against the former president. But at the same time, they have been asking the RTC for certain reliefs for GMA like hospital arrest, the use of a cellphone and laptop, etc. By captioning their pleadings with ad cautelam, these lawyers are reminding the RTC that they are not accepting its jurisdiction over the case.

[2] Does a rehabilitation court have jurisdiction over a partially executed NLRC decision?

Many years ago, I represented a former hotel chef. He had won his NLRC case for back wages against the hotel, and the decision had been partially executed. But the hotel filed for corporate rehabilitation with the Regional Trial Court in Manila, and the judge ordered all parties with money claims against the hotel to file their Answer. Parties who failed to file their Answer could no longer pursue their claims.

If I had filed an Answer for my client, it would have meant that I was accepting the court’s jurisdiction. My theory was that the NLRC had jurisdiction because it was a labor case and its decision had been partially executed. But as a precaution, I filed with the Manila RTC a pleading captioned “Manifestation/Motion ex abundanti ad cautelam”. In the pleading, I stated that while my client was complying with the court’s order, he was questioning its jurisdiction. In layman’s terms, it was better safe than sorry.

Using ad cautelam as a precautionary measure

[1] Aguedo F. Agbayani, petitioner, vs. The Commission On Elections And Rafael M. Colet, respondents. G.R. No. 87440-42 June 13, 1990

Agbayani, a Pangasinan gubernatorial candidate, filed pre-proclamation protest cases against his political rival Colet. When Colet was proclaimed as governor, Agbayani filed an election protest. Because of his pending pre-proclamation cases, he captioned his election protest ex abundante ad cautelam. The Comelec, acting on the election protest, required Colet to file a responsive answer. Agbayani then filed a reply, which he also captioned ad cautelam.

The Comelec dismissed Agbayani’s pre-proclamation cases and his motion for reconsideration. It said that the pre-proclamation controversy became moot and academic when Agbayani filed the election protest and his reply, even if they were both captioned ad cautelam.

Agbayani appealed to the Supreme Court. Ruling in his favor, the Court noted that Agbayani filed the election protest ad cautelam (or “for safety’s sake) just in case the Comelec dismissed his pre-proclamation cases. For the upcoming barangay elections, a Comelec resolution provided that all ballot boxes would be used for the barangay elections, unless they were not involved in any pre-proclamation-controversy, election protest, or official investigation. Agbayani thus wanted to preserve all the ballot boxes and their contents so that he could file an election protest later on. The Court said:
As the above-mentioned cases involved only nine precincts, it was only prudent for the petitioner to file his protest ad cautelam in case the pre-proclamation controversy was ultimately dismissed and it became necessary for him to activate his protest. The protest would involve all the precincts in the province. If he had not taken this precaution, an the other ballot boxes would have been emptied and their contents would have been burned and forever lost.
As to Agbayani’s filing of a reply, the Court said:
It was not the fault of the petitioner if the COMELEC decided to give due course to the protest right away even if it was ad cautelam. The protest was at that time only tentative, awaiting the disposition of the pre-proclamation controversy. The petitioner did file a reply to the private respondent’s answer with counter-protest, but it was only to prevent any declaration that he had by his inaction waived, the right to file responsive pleadings. Such a reply did not make the pre-proclamation controversy moot and academic.

Most indicative of the petitioner’s intention is the express reservation he made in the protest ad cautelam itself, where he clearly stated:
As additional precautionary measure, the protestant herein is filing this protest and cautela(m), without withdrawing his petitions in said pre-proclamation controversy, in order to exempt from the provisions of Section 1 of Resolution No. 2035 the precincts hereinafter specified. (Emphasis supplied)
[2] Francisco I. Chavez, Petitioner, versus Commission On Elections, Respondent. G. R. No. 105323, July 3, 1992. G. R. No. 105323, July 3, 1992

Former Solicitor General Francisco I. Chavez, a senatorial candidate in the 1992 elections, alleged that he lost at least 1.7 million votes because of a nuisance candidate with the same surname as his. On May 23, 1992, he filed an urgent petition before the Comelec asking it to [1] implement its May 12, 1992 resolution with costs de oficio; [2] to re-open the ballot boxes in 13 provinces including the National Capital Region involving some 80,348 precincts and to scan for the “Chavez” votes for purposes of crediting the same in his favor; [3] make the appropriate entries in the election returns/certificates of canvass; and [4] to suspend the proclamation of the 24 winning candidates.

Dissatisfied with the failure of the Comelec to act on his petition, Chavez filed with the Supreme Court an urgent Petition Ad Cautelam for prohibition and mandamus, with prayer for the issuance of a temporary restraining order, enjoining the Comelec from proclaiming the 24th highest senatorial candidate, without first implementing respondent Comelec’s resolution of May 12, 1992 and acting upon petitioner’s letter/complaint dated May 14, 1992 and urgent petition dated May 22, 1992.

On June 4, 1992, the Supreme Court issued a Temporary Restraining Order enjoining the Comelec from proclaiming the 24th winning senatorial candidate and setting the case for hearing on June 9, 1992. On the same day, Chavez filed a manifestation stating that on May 30, 1992, his urgent petition dated May 22, 1992 was dismissed by the Comelec. He also prayed that the Petition Ad Cautelam be considered a regular petition.

On June 8, 1992, Senator Agapito Aquino (the 24th ranked senator) filed a Motion for Leave to Intervene with Comment in Intervention praying for the dismissal of Chavez’s petition. Sen. Aquino argued that the petition was in the nature of a pre-proclamation controversy, which was not allowed in elections involving senators.

The Supreme Court ruled in Sen. Aquino’s favor, stating that Chavez’s proper recourse is to file a regular election protest which, under the Constitution and the Omnibus Election Code, exclusively pertains to the Senate Electoral Tribunal.

[3] Hongkong And Shanghai Banking Corporation Limited, petitioner, vs. Cecilia Diez Catalan, respondent. G.R. No. 159590, October 18, 2004, and HSBC International Trustee Limited, petitioner, vs. Cecilia Diez Catalan, respondent. G.R. No. 15959, October 18, 2004

Sometime in March 1997, Frederick Arthur Thomson (Thomson) issued five HSBANK checks amounting to HK$3,200,000.00, payable to Cecilia Diez Catalan (Catalan). When the checks were deposited, HSBANK returned them purportedly for reason of “payment stopped” pending confirmation, despite the fact that the checks were duly funded.

In January 2001, Catalan filed before the RTC a complaint for a sum of money with damages against HSBANK due to its alleged refusal to pay her the value of the checks issued by Thomson.

In September 2001, Catalan filed an Amended Complaint impleading petitioner HSBC TRUSTEE as co-defendant and invoking Article 19 of the Civil Code as basis for her cause of action. Catalan prayed that HSBANK and HSBC TRUSTEE be ordered to pay Php 20,864,000.00 representing the value of the five checks at the rate of Php 6.52 per HK$1 as of January 29, 2001 for the acts of HSBANK and HSBC TRUSTEE in refusing to pay the amount justly due her, in addition to moral and exemplary damages, attorney’s fees and litigation expenses.

HSBANK filed a motion for extension of time to file an Answer or a motion to dismiss. On October 2, 2001, HSBANK filed a Motion to Dismiss Amended Complaint alleging, among other grounds, that it did not submit to the jurisdiction of the RTC when it filed its motion for extension of time.

On the other hand, HSBC TRUSTEE, without submitting itself to the jurisdiction of the RTC, filed a Special Appearance for Motion to Dismiss Amended Complaint, questioning the jurisdiction of the RTC over it. HSBC TRUSTEE alleged that tender of summons through HSBANK Makati did not confer upon the RTC jurisdiction over it.

On May 15, 2002, the RTC issued an Order denying the two motions to dismiss. HSBANK and HSBC TRUSTEE filed separate motions for reconsideration but both were denied by the RTC in an Order dated December 20, 2002.

On February 21, 2003, Catalan moved to declare HSBANK and HSBC TRUSTEE in default for failure to file their Answer to the amended complaint.

On March 5, 2003, HSBANK and HSBC TRUSTEE filed separate “petitions for certiorari and/or prohibition” with the Court of Appeals (CA).

Subsequently, HSBANK and HSBC TRUSTEE filed before the RTC separate Answers ad cautelam, both dated March 18, 2003, as a “precaution against being declared in default and without prejudice to the separate petitions for certiorari and/or prohibition then pending with the CA”.

Among several grounds for their appeals, HSBANK and HSBC TRUSTEE alleged that the Court of Appeals committed serious error by holding that they had submitted to the jurisdiction of the trial court by filing an Answer to the Amended Complaint.

Issue: Did the RTC acquire jurisdiction over HSBANK and HSBC TRUSTEE when they filed their respective Answers ad cautelam?

The Supreme Court ruled:

Against HSBANKIn favor of HSBC TRUSTEE
The Rules of Court provides that a court generally acquires jurisdiction over a person through either a valid service of summons in the manner required by law or the person’s voluntary appearance in court.
HSBANK initially filed a Motion for Extension of Time to File Answer or Motion to Dismiss.
HSBANK already invoked the RTC’s jurisdiction over it by praying that its motion for extension of time to file answer or a motion to dismiss be granted. The Court has held that the filing of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the court.
Consequently, HSBANK’s expressed reservation in its Answer ad cautelam that it filed the same “as a mere precaution against being declared in default, and without prejudice to the Petition for Certiorari and/or Prohibition xxx now pending before the Court of Appeals” to assail the jurisdiction of the RTC over it is of no moment. Having earlier invoked the jurisdiction of the RTC to secure affirmative relief in its motion for additional time to file answer or motion to dismiss, HSBANK, effectively submitted voluntarily to the jurisdiction of the RTC and is thereby estopped from asserting otherwise, even before this Court.
In contrast, the filing by HSBC TRUSTEE of a motion to dismiss cannot be considered a voluntary submission to the jurisdiction of the RTC. It was a conditional appearance, entered precisely to question the regularity of the service of summons. It is settled that a party who makes a special appearance in court challenging the jurisdiction of said court, e.g., invalidity of the service of summons, cannot be considered to have submitted himself to the jurisdiction of the court. HSBC TRUSTEE has been consistent in all its pleadings in assailing the service of summons and the jurisdiction of the RTC over it.
Thus, HSBC TRUSTEE cannot be declared in estoppel when it filed an Answer ad cautelam before the RTC while its petition for certiorari was pending before the CA. Such answer did not render the petition for certiorari before the CA moot and academic. The Answer of HSBC TRUSTEE was only filed to prevent any declaration that it had by its inaction waived the right to file responsive pleadings.


More to come. For now, let me leave you with this quote from Congressman Ronnie Zamora. During the 2005 impeachment deliberations against GMA, Congressman Zamora said that his father told him: “Keep away from lawyers who start their sentences with ex abundanti ad cautela.”

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