G.R. No. 74694




Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 74694 June 27, 1990 NORDIC ASIA LIMITED (now known as DnC Ltd.) and BANKERS TRUST CO., petitioners, vs. Hon. ROQUE AGTON (Judge, RTC-XVI, Davao City, 11th Judicial Region), JIBFAIR SHIPPING AGENCY CORPORATION, JIBSEN TRADING CORPORATION, PHILIPPINE BAKER'S INC., P.V. CHRISTENSEN LINES, THEILSHIP, and SEXTANT MARITIME, S.A., respondents. Arthur D. Lim Law Office for petitioners. Zapa Law Office for Sextant Maritime. De Jesus, Paguio & Manimtim for respondents Jibfair and Jibsen. Perlas, Joven, Abrenica Law Office for Theilship. Castillo, Laman, Tan & Pantaleon for respondent PHILBAKE. R E S O L U T I O N MEDIALDEA, J.: The antecedent facts of the case are as follows: Sometime in September, 1985, JIBSEN Trading Corp. (JIBSEN, for short) was contracted by Philippine Bakers, Inc. (PHILBAKE, for short) to supply the latter with 25,000 metric tons (MT) of 5% MOL wheat flour. On November 29, 1985, Alfred C. Toeffer International, the supplier of the wheat flour in Germany (also the charterer), loaded on board the vessel, M/V "FYLYPPA", 14,200 metric tons of wheat flour consigned to PHILBAKE. Sometime thereafter, JIBFAIR Shipping Corp. (JIBFAIR, for short) the charterer's agent in the Philippines received shipping documents from Kant GmbH, charterer's agent at the loading port referring to SEXTANT Maritime S.A. (SEXTANT, for short) as the registered owner of the vessel. However, it appears from the charter party attached as Annex "A" to the petition, that the vessel owner and time Charterer is CHRISTENSEN Lines (CHRISTENSEN, for short). THEILSHIP is the vessel's manager (p. 5, Complaint; p. 28, Rollo). On December 27, 1985, JIBFAIR telexed CHRISTENSEN asking for inward remittance of US$27,000.00 as port expenses. CHRISTENSEN replied that it cannot send the amount because it was then already under receivership. JIBSEN was forced to advance US$24,672.00 to pay for one-third (1/3) of the cost of the bunker fuel used by the vessel and the fees charged by the Suez Canal authorities through which the vessel passed on its way to the Philippines. JIBFAIR was also forced to advance P49,599.70 for port expenses. The vessel arrived at its first port of destination, Davao City, twenty-two (22) days behind schedule (Complaint, pp. 24-36, Rollo). On January 14, 1986, JIBSEN, a corporation existing under the laws of the Republic of Nauru, and JIBFAIR, a Philippine Corporation, filed a case for sum of money with prayer for restraining order, mandatory injunction and attachment against P.V. CHRISTENSEN and/or Theilship and/or SEXTANT Maritime S.A. (SEXTANT, for short), all foreign entities, with the Regional Trial Court of Davao City and docketed as Civil Case No. 17917. The case was raffled to Branch XVI presided over by respondent Judge Roque Agton. On January 15, 1986, respondent judge issued an order: 1) directing the unloading of the cargo on board the vessel; 2) enjoining the defendants in that case from taking the vessel out of Philippine territory; and 3) directing the sheriff of Davao City to attach the vessel (p. 50-51, Rollo). The order directing the unloading of the cargo and the order enjoining the defendants from removing the vessel out of Philippine territory were returned unimplemented for the reason that an order of arrest against the vessel was previously issued by the-Regional Trial Court, National Capital Region, Branch 146, Makati, in connection with another case filed thereat involving the same defendants in Civil Case No. 17917. However, the attachment order was implemented (p. 52, Rollo). On January 22,1986, PHILBAKE filed a motion for leave to file complaint-in-intervention against the defendants for the damages it allegedly incurred due to the delay in the arrival of the vessel (pp. 61-71, Rollo). The motion was granted on January 23, 1986. On January 23, 1986, herein petitioners Nordic Asia Limited (now known as DnC Limited) and Bankers Trust Company, both foreign corporations, filed an urgent motion for leave to intervene and attached thereto a complaint-in-intervention (pp. 83-91, Rollo), alleging that they have legal interests in the vessel AN "FYLYPPA", being the unpaid mortgagees thereof Both JIBSEN and JIBFAIR opposed the motion claiming that DnC and Bankers Trust have no capacity to sue in the Philippines, they being foreign corporations. An urgent motion to approve counterbond and to discharge order of attachment was filed by DnC Limited and Bankers Trust on February 28, 1986. DnC Limited and Bankers Trust posted a counterbond of P518,729.78, the amount equal to JIBFAIR and JIBSEN's claims (Annex "O" of petition, p. 118, Rollo). On April 1, 1986, respondent Judge granted DnC Limited and Bankers Trust Co.'s motion for intervention but denied their motion to approve counterbond and to discharge order of attachment for two (2) reasons: (1) DnC and Bankers Trust Co. are not the owners of the vessel nor are they appearing on behalf of its owners; and 2) for a writ of attachment to be discharged on a counterbond, the applicant must post a counterbond equal to the value of the property attached. On April 8, 1986, petitioners filed a manifestation/urgent motion for partial reconsideration of the April 1, 1986 order manifesting that they were willing to post additional counterbond to cover JIBFAIR and JIBSEN's other claims before the sheriff of Manila. In addition, petitioners argued that while they may not be the owners of the vessel, they have a direct, actual, subsisting and substantial interest in the property attached, being the unpaid mortgagees of the vessel (pp. 158-161, Rollo). At the time respondent judge was considering the amount of the counterbond, all the defendants were already declared in default (p. 15, Memorandum for Petitioners, p. 228, Rollo). On May 2, 1986, respondent judge issued an order which reads: xxx xxx xxx On equitable ground, the Court will allow the discharge of the attachment if the following terms and conditions are met by movant, to wit: l. a security is given to plaintiffs, Jibfair Shipping Agency and Jibsen Trading Corporation and plaintiffs-in-intervention, Philippine Bakers, Inc. to answer for whatever judgment this Court will render should any or all prevail; 2. said security shall be in the form and in an amount acceptable to the parties, concerned but subject to the court's own assessment and final approval.' On the mixture of law and equity, the court will allow a discharge of the attachment only if plaintiffs-in-intervenors Nordic Asia Limited (now known as DnC Limited) and Bankers Trust Co., the alleged mortgagees, file with the Court, a counterbond in an amount equal to the value of the property attached which the judge as provided for in the rules is now in process of independently determining. In either case and pursuant to the above, all parties are hereby ordered to submit within five (5) days from receipt hereof: l. proposals to the kind and amount of security; and 2. an approximate valuation of the vessel. SO ORDERED. (pp. 163-164, Rollo) Without complying with the above order, petitioners, on June 4, 1986 filed the instant petition for mandamus and certiorari under Rule 65 of the Rules of Court which seeks: 1) to compel respondent judge to accept and approve petitioners' counterbond (AFISCO BOND No. JCL [3] 00044) executed in favor of private respondents JIBSEN and JIBFAIR and to order the immediate discharge of the attachment under his order dated January 15, 1986; and 2) to annul the order dated May 2, 1986 of respondent judge, in Civil Case No. 17917 of the Regional Trial Court of Davao City, Branch XVI, 11th Judicial Region. On June 12, 1986, petitioners filed a motion which sought the amendment of the temporary restraining order dated June 9, 1986 by deleting therefrom the order enjoining the respondent judge from continuing with the detention of the vessel MV "FYLYPPA", for the reason that the vessel is no longer within Philippine waters. Petitioners stated in the same motion that on June 5, 1986, they filed a manifestation/motion that on May 29, 1986, the vessel was sold at public auction by Manila Notary Public Jaime M. Vibar. The sale was made upon DnC and Bankers Trust Co.'s petition pursuant to P.D. 1521, otherwise known as the Ship Mortgage Decree of 1978. The Certificate of Sale was duly confirmed in an order (pp. 184-187, Rollo) dated June 3, 1986 of the Regional Trial Court of Pasay, Branch CXIII, in a "Closure Proceedings' docketed as Civil Case No. 3699-P, entitled Nordic Asia Limited, et al., vs. MV FYLYPPA, et al. Also, the manifestation/motion stated that on June 4, 1986, at about 6:26 p.m., the vessel MV "FYLYPPA" sailed out and left the port or anchorage of Manila pursuant to the authority granted to her new owners to sail out the vessel from the Philippine waters (p. 175, Rollo). No action on the motion to amend restraining order was taken by this Court. On March 2, 1987, We gave due course to the petition (p. 510, Rollo). It is noteworthy that resort to this petition before Us is premature. Nowhere in the assailed May 2, 1986 Order did respondent judge require petitioners to post a counterbond allegedly in the amount of P30,000,000.00. The order merely required both parties to submit an approximate valuation of the vessel to guide him (respondent judge) in determining the value of the vessel. However, without complying with the order, petitioners immediately filed this petition. After considering the petition, answer and the other pleadings filed by the parties in the instant petition, the Court resolved to RECALL its order dated March 2, 1987, giving due course to this petition. Since petitioners had succeeded in removing the vessel out of Philippine territory even before the filing of this petition before Us and despite the writ of attachment issued by respondent judge, this petition for mandamus and certiorari, insofar as it seeks to discharge the attachment, has become moot and academic. Therefore, "no useful purpose would be served by passing on the merits of the petition. Any ruling in the instant case can hardly be of any practical or useful purpose in the premises. It is a settled rule that a court will not determine moot questions or abstract propositions, nor express an opinion in a case on which no practical relief can be granted." (Central Azucarera Don Pedro v. Don Pedro Security Guards Union, L-21610, March 15, 1968; 22 SCRA 1053 [1968]; Bongat v. Bureau of Labor Relations, L-41039, April 30, 1985; 136 SCRA 225 [1985]; National Union of Garments Textile Cordage and General Workers of the Philippines (GATCORD) v. Ministry of Labor, G.R. L-50336, July 5, 1985; 137 SCRA 341 [1985]; Lomo v. Mabelin, et al., G.R. 68649, December 29, 1986; 146 SCRA 473 [1986]; cited in Espina v. Provincial Board of Leyte, L-33058-59, August 18, 1988; 164 SCRA 464 [1988]). ACCORDINGLY, the petition is DISMISSED. SO ORDERED. Narvasa (Chairman), Cruz, Gancayco and Griño-Aquino, JJ., concur. The Lawphil Project - Arellano Law Foundation