“What is critical is the vexation brought upon the courts and litigants by a party engaged in this practice.”
Forum shopping is when a party institutes two or more suits in different courts, either simultaneously or successively, to ask the courts to rule on the same or related causes or grant the same or substantially the same reliefs (Top Rate Construction & General Services, Inc. v. Paxton Development Corp., G.R. 151081, September 11, 2003).
Multiple actions are initiated “on the supposition that one or the other court would make a favorable disposition or increase a party’s chances of obtaining a favorable decision or action” (G.R. 151081, September 11, 2003). This practice is prohibited by the Rules of Court and the lawyers’ Code of Professional Responsibility.
Forum shopping can be committed in the following ways: (1) filing multiple cases based on the same cause of action and with the same prayer, with the previous case not having been resolved (litis pendentia); (2) filing multiple cases based on the same cause of action and the same prayer, with the previous case having been finally resolved (res judicata); and (3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, which is either litis pendentia or res judicata) (Zamora v. Quinan, et al., G.R. No. 216139, November 29, 2017).
To determine whether a party violated the rule against forum shopping, either the elements of litis pendentia are present, or a final judgment in one case will amount to res judicata in another. Otherwise stated, the test for determining forum shopping is whether the parties, rights or causes of action, and reliefs sought are identical in the two (or more) cases (Zamora v. Quinan, et al., G.R. No. 216139, November 29, 2017 citing Yap v. Chua, et al.).
It is interesting to note that there is no provision in the 1940 and 1964 Rules of Court that requires a “certification against forum shopping” to be annexed or appended to an initiatory pleading such as a complaint or petition. It was only in the 1997 Rules of Civil Procedure where the requirement of a certification was first introduced.
While the provision on “certification against forum shopping” was officially incorporated in the 1997 Rules of Civil Procedure, the text was taken from Revised Circular No. 28-91 and Administrative Circular Number 04-94; both issued by the Supreme Court on February 8, 1994, under the leadership of Chief Justice Andres R. Narvasa.
The issuance of the circulars was due “to the filing of multiple petitions and complaints involving the same issues in the Supreme Court, Court of Appeals or other tribunals or agencies with the result that said courts, tribunals and agencies have to resolve the same issues”. Before the issuance of the said circulars, forum shopping was more of an ethical issue rather than a procedural one.
Section 5, Rule 7 of the 1997 Rules of Civil Procedure, which took effect on July 1, 1997, states that the failure to annex the certification is “not curable by mere amendment of the complaint or initiatory pleading but shall be cause for the dismissal of the case without prejudice”. This means that the dismissed complaint or initiatory pleading can be refiled. This Rule was not changed by the 2019 Amendments to the Rules of Civil Procedure.
The requirement to file a certification on non-forum shopping is mandatory. Failure to comply with this requirement cannot be excused by the fact that the plaintiff is not guilty of forum shopping. It applies to any complaint, petition, application, or any other initiatory pleading, regardless of whether the party filing it has actually committed forum shopping. Every party filing a complaint, or any other initiatory pleading is required to swear under oath that he has not committed nor will commit forum shopping (Spouses Melo v. Court of Appeals, G.R. No. 123686, November 16, 1999).
This will obviate the former practice of some trial courts in allowing the amendment of the incomplete pleading via supplying the missing certificate against forum shopping. It was erroneous since the undertaking against multiple filings of cases is not part of the operative facts that must be alleged in an initiatory pleading, but is a special requirement for its admission. Hence, the absence thereof is not curable by mere amendment (G.R. No. 123686, November 16, 1999).
The contents of the certification are the same for the 1997 Rules of Civil Procedure and the 2019 Amendments, which must state that there is no action commenced or any claim filed involving the same issues in any court, tribunal or quasi-judicial agency; and, that, to the best of his knowledge, there is no such other action or claim that is pending in another court (Section 5, Rule 7, 2019 Amendments to the Rules of Civil Procedure [ARCP).
The certification must also state that if there is another pending action or claim, a complete statement of the present status thereof must be provided; and if he later learns that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days to the court wherein his complaint or initiatory pleading was filed (Section 5, Rule 7, 2019 ARCP).
The requirement of annexing the certification to the complaint or initiatory pleading is also mandatory for: (a) petitions in the nature of an appeal such as Petitions for Review with the Court of Appeals (Rules 42 and 43) and Petitions for Review on Certiorari with the Supreme Court (Rule 45); and (b) special civil actions for Certiorari, Prohibition, Mandamus and Quo Warranto (Rules 64, 65 and 66).
The rule requiring the inclusion of a certification against forum shopping is separate and distinct from the rule against forum shopping. Forum shopping is a ground for summary dismissal of both initiatory pleadings without prejudice to the taking of appropriate action against the counsel or party concerned (Zamora v. Quinan, et al., G.R. No. 216139, November 29, 2017 citing Korea Exchange Bank v. Gonzales).
The attestations in the certification are not a formality but an assertion of the truthfulness of the allegations therein. Hence, if proven to be false, it may constitute indirect contempt and the party or counsel may be liable criminally and administratively (Section 5, Rule 7, 2019 ARCP). For example, if the affiant asserts there is no similar case filed or pending in another forum but is later proven to be untrue, he or she can be sued for perjury.
Since there is more than one case involving the same issues and reliefs, the more recent case must be dismissed with prejudice (Sotto, et.al, v. Palicte, G.R. No. 159691, February 17, 2014). The liabilities for false certification will also apply if the violation of the party pertains to non-compliance with the attestations, e.g., failure to inform the court of the status of the pending case, or to report its filing or pendency within five days from knowledge.
If the acts of the party or counsel clearly constitute willful and deliberate forum shopping, the same shall be grounds for summary dismissal with prejudice and shall constitute direct contempt, as well as cause for administrative sanctions (Section 5, Rule 7, 2019 ARCP). The dismissal will not require notice and hearing and will result in the dismissal of all the cases (Sotto, et.al, v. Palicte, G.R. No. 159691, February 17, 2014).
Who must sign the certificate against forum shopping? The certification against forum shopping must be signed by all the plaintiffs or petitioners in a case; otherwise, those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstances however, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them substantially complies with the Rule (Cordillera Global Network v. Secretary Ramon Paje, G.R. No. 215988, April 10, 2019 citing Altres, et al. v. Empleo, et al.).
Furthermore, the certification against forum shopping must be executed by the party-pleader, not by his counsel. If for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney designating his counsel of record to sign on his behalf (Altres, et al. v. Empleo, et al., G.R. No. 180986, December 10, 2008).
The authorization made by the party-pleader, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading (Section 5, Rule 7, 2019 ARCP). This provision was introduced for the first time in the 2019 Amendments, although it has figured immensely in jurisprudence.
In forum shopping, what is critical is the vexation brought upon the courts and litigants by a party engaged in this practice. To avoid undue penalties and the dismissal of cases, parties should refrain from forum shopping and instead trust the fair hand of justice wielded by our courts.