REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

FIFTH DIVISION

Name
Petitioner,

- versus - C.A. – G.R. No. 123456

(Civil Case No. 88-000)
Petition for Certiorari under Rule 65
Name
Respondents.
x------------------------------------------------------x

MEMORANDUM

Petitioner NAME, by counsel and by way of compliance to this Honorable

Court’s Resolution dated 12 June 2008, most respectfully submits its

Memorandum and states:

I.

PUBLIC RESPONDENT COMMITTED GRAVE

ABUSE OF DISCRETION WHEN IT FAILED TO
RECOGNIZE THAT PETITIONER WAS DENIED
THE RIGHT TO PARTICIPATE IN THE TRIAL
PROCEEDINGS AS A RESULT OF PRIVATE
RESPONDENT’S FRAUDULENT ACTS.
 1.1. Petitioner filed her Omnibus Motion since she was denied the right

to participate in the proceedings at the Trial Court by means of fraudulent acts

perpetrated by the Private Respondent.

1.2. As stated in the Petition, Petitioner was never apprised of the

filing and pendency of the case since Private Respondent deliberated withheld

Petitioner’s new address from the Public Respondent.

1.3. Furthermore, Private Respondent petitioned for the immigration of

Petitioner and their children to Canada. By the time Petitioner permanently

moved to Canada, the Decision was already promulgated, yet Private

Respondent did not see it fit to inform Petitioner that he had filed a case against

her.

1.4. Thus, when Petitioner moved to Canada with her children, none of

them had any clue that Private Respondent had filed a Petition for Declaration of

Nullity of Marriage, and, more so, that a Decision had already been

promulgated.

1.5. Until she was informed of the Decision, Petitioner was of the belief

that her marriage to Private Respondent subsisted and that Private Respondent

remained bound by the obligations of a husband under the Family Code.

2
 1.6. The foregoing acts of Private Respondent of deliberately hiding

from Petitioner the pendency of the instant case and misleading the Public

Respondent of Petitioner’s whereabouts constitute extrinsic fraud, and therefore,

grounds for a Motion for New Trial.

1.7. Fraud has been regarded as extrinsic or collateral “where it is one

the effect of which prevents a party from having a trial, or real contest, or from

presenting all of his case to the court, or where it operates upon matters

pertaining not to the judgment itself, but to the manner in which it was procured

so that there is not a fair submission of the controversy”.1

1.8. By deliberately withholding information on Petitioner’s

whereabouts, of which Private Respondent himself was undoubtedly aware,

Private Respondent prevented Petitioner from presenting her case in court.

Clearly, this constitutes extrinsic fraud and should entitle Petitioner to a new

trial.

II.

PUBLIC RESPONDENT COMMITTED GRAVE

ABUSE OF DISCRETION WHEN IT FOUND
THAT THERE WAS A VALID SERVICE OF
SUMMONS.

1
Arellano v. Court of First Instance of Sorsogon, 64 SCRA 46 (1975)

3
 2.1. In denying Petitioner’s Omnibus Motion, Public Respondent relied

solely on the presumption of regularity provided by the rules on evidence

insofar as the service of summons on Petitioner is concerned, to wit:

“x x x After going over the allegations of both parties, this court

believes and so rules that summons was duly served to the
respondent as shown by the sheriff’s return, which is presumed to
have been regularly performed and which respondent failed to
rebut with convincing evidence.”

2.2. However, we respectfully submit that Public Respondent failed to

note that the record clearly shows that there was nothing regular about the

supposed service of summons upon Petitioner.

2.3. The Summons for the instant case was issued on 22 September 1999

as clearly shown in the Summons itself (See Annex “1” to Annex “I” of \

Petition).

PRAYER

WHEREFORE, Petitioner respectfully prays that this Honorable Court

annul and set aside the Orders of the Public Respondent dated 05 July 2007 and

18 December 2007 and:

1. SET ASIDE

4
 2. GRANT Petitioner a period of fifteen (15) days from receipt of the

appropriate Order to file her responsive pleading to the Petition for

Civil Case No.

3. SET Civil Case No. for NEW TRIAL after the filing of all other

necessary pleadings and conducting other necessary proceedings.

Petitioner prays for such further or other relief as may be deemed just or

equitable.

Pasay City for Manila, 11 July 2008.

NAME OF LAWYER
PTR No. 11111111/01-02-2008/Pasay City
IBP No. Lifetime LRN-12345/Makati City
Roll No. 123456

Counsels for Petitioner

Quezon City

Copy Furnished:

REGIONAL TRIAL COURT

MUNTINLUPA CITY, BRANCH 100

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo Street
Legaspi Village, Makati City

NAME OF LAWYER
Counsel for Private Respondent
Addres

5
 EXPLANATION

Due to lack of material time and messengers to personally serve a copy of

this Memorandum, undersigned counsel was constrained to serve copies of the
same by registered mail.

NAME OF LAWYER