that: he and the latter, together with two (2) other persons, entered into a partnership for the purpose of producing fighting cocks for sale for which they executed a Partnership Agreement.3 They have agreed that plaintiff-appellee and the two (2) other partners would provide six (6) broodhens and three (3) broodcocks with a total cost of ₹90,000.00 while defendant-appellant would provide as her share, the free use of her lot in Purok Sampaguita, Antipolo, Rizal, with an approximate area of 1,000 sq. m. as the place for their business operation. In addition, all of them would contribute equally for operating expenses. Plaintiffappellee built the chicken house and financed in advance the shares of his partners which amounted to P86,086.48, including labor and project-related expenses. Under the agreement, the plaintiff-appellee and the other partners, except for the defendant-appellant,

advanced the amount of P28,695.49 each. After six (6) months, the other two (2) partners withdrew from the partnership but plaintiff-appellee and defendant-appellant

decided to continue the business under the same partnership agreement. In December, 1995, when the plaintff-appellee went to Bauang, La Union for his Christmas vacation, he brought with him the broodcocks and broodhens and temporarily padlocked the chicken house where he kept his personal belongings. Without his knowledge and consent, however, defendant-appellant forcibly opened the chicken house by destroying the padlock of the doors, brought out all the plaintiffappellee's personal belongings and dumped them outside, exposing them to rain, dust, sun and termites and the rest were lost thereby causing damage to the plaintiffappellee in the amount of P7,830.00. Defendant-appellant's purpose was to lease the chicken house and its premises without the plaintiff-appellee's consent. On January 5, 1996, the chicken house and its premises were leased to another person, thereby depriving the plaintiff-appellee of his right. and share thereto, contrary to their partnership agreement. The plaintiffappellee demanded from the defendantappellant to pay him for his lost personal

1 Ibid., pp. 74-75.

belongings and for his expenses in the construction of the chicken house and improvement in the premises, but she (defendant-appellant) refused. Due to the latter's refusal to pay and the breach of contract that she had committed, the plaintiff-appellee prayed for actual damages in the form of cash advance in the amount of 28,659.49, moral damages in the amount of 150,000.00 and exemplary damages in the amount of P50,000.00.

In her answer,4 defendant-appellant admitted their partnership agreement; that she took possession of the subject premises sometime in December, 1995 and thereafter, leased the premises to another person because plaintiff-appellee had abandoned the area due to the dissolution of the partnership by the other partners and that she received a letter from Atty. Ambengan, plaintiff's counsel, which she acknowledged in a letter dated April 4, 1996. She denied the rest of the averments in the alleged, among others, that plaintiff-appellee complaint and by way of counterclaim, she

has to account for the benefit of the partnership, the use of her property in the amount of P24,000.00 and P3,000.00 additional funds she had contributed, less whatever losses the corresponding share may be attributed to her, including but not limited to the sales proceeds plaintiffappellee has collected during the operation of the business. She claimed for exemplary damages of 100,000.00 and attorney's fees in the amount of P50,000.00 plus P1,500 for every appearance in court.

On March 25, 1997, after the parties have submitted their respective pre-trial briefs, an Order was issued by the court a quo directing the parties to submit their respective position papers to partake the place of their respective direct examinations without prejudice to cross-examination.

After the parties have submitted their respective position papers, trial on the merits ensued.

4 lbid., pp. 48-54. 5 lbid., pp. 67-68.

THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE IT BEING IN THE NATURE OF AN ACTION OF A PARTNERSHIP FOR WHICH THE TRIAL COURT A QUO HAS NO JURISDICTION."

Anent her first assigned error, defendantappellant avers that considering the plaintiffappellee's testimony and exhibits, it would be impossible to conclude that she (defendant-appellant) brought out the plaintiff-appellee's personal belongings, as she had not even gone to the subject premises; and, that plaintiff-appellee was in bad faith in demanding unreasonable amount from her as plaintiff-appellee should have saved the items which could be salvaged and asked her to pay only the destroyed ones.

We are not persuaded.

Undisputed is the fact that when the plaintiff-appellee went to the subject

6 lbid., pp. 314-320.

7 lbid., p. 324.

8 Brief for the Defendant-Appellant, pp. 3-4; Rollo, pp. 15-16.

premises after his Christmas vacation, somebody was already occupying the same as it was leased by the defendant-appellant to another person. While it may be true that the latter did not personally go to the premises, her caretaker Leopoldo Lanciso, upon her instruction, brought out all the personal belongings of the plaintiff-appellee, exposing them to the elements.

Defendant-appellant likewise, argues in her second assigned error, that the court a quo erred when it awarded moral damages based on its findings that plaintiff-appellee suffered property damage. Assuming that it is true, the same would not entitle the plaintiff-appellee to moral damages which are awarded only in case of physical sufferings or those provided in Article 32 and 33 of the Civil Code.

or

An award of moral damages would require, firstly, evidence of besmirched reputation or physical, mental psychological suffering sustained by the claimant; secondly, a culpable act or omission factually established; thirdly, proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and fourthly, that the case is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code. In relation to this, Article 2220 of the Civil Code provides that:

"ART. 2220. Willful injury to the property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith."

Article 2219 of the Civil Code on the other hand, lists the instances when moral damages may be recovered. One such case is when the rights of individuals, including the right against deprivation of property without due process of law, are violated. 10

In support of his prayer for moral damages in this case, plaintiff-appellee testified that aside from feeling frustrated

9 Philippine Telegraph & Telephone Corp. v. Court of Appeals, 388 SCRA 270, 276.

10 Quisumbing v. Manila Electric Co., 380 SCRA 195, 212.

and disappointed, he experienced sleepless nights and wounded feelings due to the defendant-appellant's act of unilaterally taking over the farm house which he and his partners constructed without her (defendant-appellant's) participation. The latter did not adduce any evidence to rebut or contravene this testimony.

Defendant-appellant also contends that she deserves to get a fair share from the partnership for allowing the use of her land from their business on the condition that she would be given an equal share of the profit. Hence, she claims that she should be reimbursed of the value for the use of the property. The contention is untenable.

A reading of the Partnership Agreement11 shows that defendant-appellant's share in the partnership was the free use of her lot in Antipolo/Batangas. In addition to this, she should also share in all project related expenses. She claims that she is entitled to an equal share of the profit realized, but she failed to adduce any evidence about any sale made or profit realized by the partnership.

Defendant-appellant further alleges that the action initiated by the plaintiff-appellee for and in behalf of the dissolved partnership, falls under the exclusive jurisdiction of the Securities and Exchange Commission (SEC), thus, the court a quo erred when it assumed jurisdiction on the instant case.

The allegation is not impressed with merit.

It should be noted that it was the defendant-appellant who continuously argued that "the instant case was initiated by the plaintiff-appellee alone and no other partner authorizes the plaintiff-appellee to file such action considering that the partnership ceased to operate since March 31, 1995."12 Considering that the partnership was already inexistent when the present action was filed. It is obvious that the case filed solely by the plaintiff-appellee, is within the jurisdiction of the regular courts and not with the SEC. Moreover, defendantappellant had diligently participated in the

11 Record, pp. 74-75. 12 Record, p. 182.

litigation below, as shown by the responsive pleadings which she filed, as well as her attendance and participation in the hearings. By her conduct, she voluntarily submitted to the jurisdiction of the trial court. Consequently, she must not be allowed to belatedly deny said court's jurisdiction. The rule is that the active participation of the party against whom the action was brought, coupled with her failure to object to the jurisdiction of the court where the action is pending, is tantamount to an invocation of that jurisdiction and willingness to abide by the resolution of the case and will bar said party from later on impugning the court's jurisdiction. 13

Defendant-appellant also instituted a counterclaim which is obviously a manifestation that she recognized and expressly invoked the jurisdiction of the court below. She cannot now question the court's jurisdiction after an unfavorable decision was issued against her. It is not right for a party who has affirmed and invoked jurisdiction of a court in a particular matter to secure an affirmative relief, by advancing a counterclaim, to afterwards deny the same jurisdiction to escape a penalty. The party is barred from such conduct not because the judgment or order of the court is valid but because such practice cannot be tolerated for reasons of public policy.14

All told, unless it is shown that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight or substance that would otherwise affect the result of the case, its findings will not be disturbed on appeal.15 In this case, We find no reason to disturb the decision appealed from.

WHEREFORE, premises considered, the instant appeal is DISMISSED and the assailed decision is AFFIRMED.

SO ORDERED.

Vasquez, Jr. and De Guia-Salvador, JJ.,

concur.

Appeal dismissed and the judgment affirmed.

13 Oca v. Court of Appeals, 378 SCRA 642, 648. 14 lbid., p. 649.

15 People v. Cantilla, Jr., 394 SCRA 393, 401.

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was

assigned to the writer of the opinion of the Court.

(SGD.) CONRADO M. VASQUEZ, JR.

Associate Justice

Chairman, Sixth Division

WHEREAS, the 1987 Philippine Constitution mandates the Civil Service Commission (CSC), as the central personnel agency of the government, to establish a career service founded on morale, efficiency, integrity, responsiveness and courtesy, and shall also endeavor to strengthen the merit and reward system as well as integrate all human resource development programs for all levels and ranks;

WHEREAS, the CSC is empowered under the Administrative Code of 1987 to administer and enforce the constitutional and statutory provisions on the merit system for all levels and ranks in the civil service;

WHEREAS, the CSC is likewise mandated to prescribe, amend and enforce rules and regulations for carrying into effect the provisions of the civil service and other pertinent laws as to promulgate policies, standards and guidelines to promote economical, efficient and effective public personnel administration;

WHEREAS, the Administrative Code of 1987 provides for the three major levels of positions in the service, as follows:

1. The first level, which shall include clerical, trades, crafts and custodial service positions having non

professional or sub-professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

2. The second level, which shall include professional, technical and scientific positions involving professional, technical or scientific work in a nonsupervisory or supervisory capacity requiring at least four years of college work up to division chief level; and

3. The third level, which shall cover positions in the Career Executive Service (CES)

WHEREAS, in the exercise of its rulemaking power and authority to administer civil service laws for all levels and ranks in the civil service, the CSC promulgated CSC Memorandum Circular (MC) No. 21, s. 1994, defining and identifying the supervisory and executive positions above division chief that are within the coverage of the CES;

WHEREAS, CSC MC No. 21, s. 1994, provides that in addition to the CES positions enumerated in the Administrative Code of 1987 as well as those previously classified by the CESB, all other positions in government agencies shall belong to the CES and the third level based on the following criteria:

1. The position is a career position;

2. The position is above division chief level; and

3. The duties and responsibilities of the position require the performance of executive or managerial functions.

WHEREAS, the CSC likewise promulgated CSC MC No. 1, s. 1997 (Revised