Corporation Law Full Text

 

BANC   EN BANC

Catapang Guzman Tiongco & Torres for UCPB & 14 CIIF Holding Co.

The Supreme Court uphold the contention of the PCGG ands set aside the assailed order of the Sandiganbayan. The Court held that the government should be allowed to continue voting those shares inasmuch as they were purchased with coconut levy funds  —  funds  funds that are are prima  prima facie public facie public in character or, at the very least, are "clearly a ffected withy public interest," and because they belong to it as the prima the  prima facie beneficial facie beneficial and true owner t hereof. Voting is an act of dominion that should be exercised by the share owner. One of the recognized rights of an owner is the right to vote at meetings of the corporation. The right to vote is classified as the right to control. Voting rights may be for the purpose of, among others, electing or removing directors, amending a charter or making or amending by laws. Because the subject UCPB shares were acquired with government funds, the government  becomes their  prima  prima facie beneficial facie beneficial and true owner. Ownership includes the right to enjoy, dispose of, exclude and recover a thing without limitations other than those established by law or by the owner. Ownership has been aptly described as the most comprehensive of all real rights and the right to vote shares is a mere incident of ownership. In the present case, the government has been shown to be the  prima facie owner of the funds used to purchase the shares. Hence, it should be allowed the rights and privileges flowing from such fact. HCSEcI  HCSEcI 

Sycip Salazar Hernandez & Gatmaitan for UCPB.

SYLLABUS  SYLLABUS 

SYNOPSIS   SYNOPSIS 

1. MERCANTILE LAW; CORPORATION CODE; SHARES OF STOCK; GENERAL RULE; SEQUESTERED SHARES OF STOCK ARE VOTED BY THE REGISTERED HOLDER. —  HOLDER.  —  It  It is necessary to restate the general rule that the registered owner of the shares of a corporation exercises the right and the privilege of voting. This principle applies even to shares that are sequestered by the government, over which the PCGG as a mere conservator cannot, as a general rule, exercise acts of dominion. On the other hand, it is authorized to vote these sequestered shares registered in the names of private persons and

[G.R. Nos. 147062-64. December 14, 2001.] REPUBLIC OF THE PHILIPPINES, represented by the PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), (PCGG) , petitioner , vs . COCOFED et al. and BALLARES et al.,  al.,  1 EDUARDO M. COJUANGCO JR. and the SANDIGANBAYAN (First Division) respondents respondents..  The Solicitor General  for  for petitioners.  Mario E. Ongkiko for petitioners-intervenors.  Abello Concepcion Regala & Cruz for COCOFED, et al. & Ballares, et al.  Estelito P. Mendoza for E.M. Cojuangco, Jr.

The first Division of the Sandiganbayan in Civil Case Nos. 0033-A, 0033-B and 0033-P allowed respondents COCOFED, et al ., ., and Ballares, et al ., ., as well as Eduardo Cojuangco, et al ., ., acknowledged registered stockholders of the United Coconut Planters Bank (UCPB) and all other registered stockholders of the bank, to exercise their right to vote their shares of stock and themselves to be voted upon in the UCPB at the scheduled Stockholders' Meeting on March 6, 2001 or on any subsequent continuation or resetting thereof, and to  perform such acts as will normally follow in th e exercise of these rights as registered stockholders. In its petition, the Republic of the Philippines, represented by the Presidential Commission on Good Government (PCGG), contended that respondent Sandiganbayan committed grave abuse of discretion in enjoining them from voting the sequestered shares of stock in UCPB despite the fact that the sequestration share were purchased with coconut levy funds (which were declared public in character) and the continuing effectivity of Resolution dated February 16, 1993 in G.R. No. 96073 which allows the PCGG to vote said sequestered shares.

acquired with allegedly ill-gotten wealth, if it is able to satisfy the two-tiered test devised  by the Court in Cojuangco v. Calpo and PCGG and PCGG v. Cojuangco Jr ., ., as follows: (1) Is there  there    prima facie evidence facie  evidence showing that the said shares are ill-gotten and thus belong to the State? (2) Is there an imminent danger of dissipation, thus necessitating their continued sequestration and voting by the PCGG, while the main issue is pending with the Sandiganbayan? 2. ID.; ID.; ID.; EXCEPTION TO THE RULE; SEQUESTERED SHARES ACQUIRED WITH PUBLIC FUNDS. —  FUNDS. —  The  The Court in Baseco in Baseco v. PCGG (hereinafter " Baseco  Baseco") ") and Cojuangco Jr. v. Roxas ("Cojuangco-Roxas" ) has provided two clear "public character" exceptions under which the government is granted the authority to vote the shares: (1) TH

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Where government shares are taken over by private persons or entities who/which registered them in their own names, and (2) Where the capitalization or shares that were acquired with public funds somehow landed in private hands. The exceptions are based on the common-sense principle that legal fiction must yield to truth; that public property registered in the names of non-owners is affected with trust relations; and that the prima the  prima  facie beneficial  facie  beneficial owner should be given th e privilege of enjoying the righ ts flowing from the the    prima facie fact of ownership. 3. ID:, ID.; ID.; COCONUT LEVY FUNDS ARE AFFECTED WITH PUBLIC INTEREST. —  INTEREST.  —  Having  Having conclusively shown that the sequestered UCPB shares were  purchased with coconut levie s, we hold that these funds and shares are, at t he very least, "affected with public interest." The Resolution issued by the Court on February 16, 1993 in  Republic v. Sandiganbayan stated that coconut levy funds were "clearly affected with  public interest"; thus, herein p rivate respondents respondents —   —  even  even if they are the registered shareholders —  shareholders  —  cannot  cannot be accorded the right to vote them. 4. ID.; ID.; COCONUT LEVY FUNDS ARE PRIMA ARE PRIMA FACIE  PUBLIC  PUBLIC FUNDS; SAID FUND SATISFY THE GENERAL DEFINITION OF PUBLIC FUNDS. —  FUNDS. —  To  To avoid misunderstanding and confusion, this Court will even be more categorical and positive than its earlier pronouncements: the coconut levy funds  funds  are not only affected with public interest; they are, in fact, prima facie public funds. funds . Public funds are those moneys  belonging to the State or t o any political subdivision of the St ate; more specifically, taxes, customs duties and moneys raised by operation of law for the support of the government or for the discharge of its obligations. Undeniably, coconut levy funds satisfy this general CcEHaI   definition of public funds. funds. CcEHaI 5. ID.; ID.; ID.; COCONUT LEVY FUND RAISED THROUGH STATE'S POLICE AND TAXING POWER. —  POWER. —  Indeed,  Indeed, coconut levy funds partake of the nature of taxes which, in general, are enforced proportional contributions from persons and properties, exacted by the State by virtue of its sovereignty for the support of government and for all public needs. Based on this definition, a tax has three elements, namely: a) it is an enforced proportional contribution from persons and properties; b) it is imposed by the State by virtue of its sovereignty; and c) it is levied for the support of the government. The coconut levy funds fall squarely into these elements. 6. ID.; ID.; ID.; HAVING BEEN ACQUIRED WITH PUBLIC FUNDS, THE SUBJECT SHARES BELONG, PRIMA BELONG, PRIMA FACIE , TO THE GOVERNMENT. —  GOVERNMENT.  —  Having  Having shown that the coconut levy funds are not only affected with public interest, but are in fact prima fact  prima facie

 public funds, this Court believes th at the government should be allowed to vo te the questioned shares, because they belong to it as the prima the  prima facie beneficial facie beneficial and true owner. As stated at the beginning, voting is an act of dominion that should be exercised by the share owner. One of the recognized rights of an owner is the right to vote at meetings of the corporation. The right to vote is classified as the right to control. Voting rights may be for the purpose of, among others, electing or removing directors, amending a charter, or making or amending bylaws. Because the subject UCPB shares were acquired with government funds, the government becomes their  prima  prima facie beneficial facie beneficial and true o wner. Ownership includes the right to enjoy, dispose of, exclude and recover a thing without limitations other than those established by law or by the owner. Ownership has been aptly described as the most comprehensive of all real rights. And the right to vote shares is a mere incident of ownership. In the present case, the government has been shown to be the    prima facie owner of the funds used to purchase the shares. Hence, it should be allowed the rights and privileges flowing from such fact. 7. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI ; GRAVE ABUSE OF DISCRETION MAY ARISE WHEN A LOWER COURT OR TRIBUNAL VIOLATES OR CONTRAVENES THE CONSTITUTION, THE LAW OR EXISTING JURISPRUDENCE. —  JURISPRUDENCE.  —  We  We hold that the Sandiganbayan gravely abused its discretion when it contravened the rulings of this Court in Baseco in  Baseco and Cojuangco Cojuangco-Roxas -Roxas —   —  thereby  thereby unlawfully, capriciously and arbitrarily depriving the government of its right to vote sequestered shares purchased with coconut levy funds which are prima are prima facie public facie public funds. Indeed, grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence. In one case, this Court ruled that the lower court's resolution was "tantamount to overruling a judicial  pronouncement of the highest Court . . . and unmistakably a very grave abuse o f discretion." TSIDEa  TSIDEa  8. ID.; ID.; ID.; PUBLIC CHARACTER OF SHARES IS A VALID ISSUE. —  ISSUE.  —  The  The main issue of who may vote the shares cannot be determined without passing upon the question of the public/private character of the shares and the funds used to acquire them. The latter issue, although not specifically raised in the Court a quo, quo, should still be resolved in order to fully adjudicate the main issue. Indeed, this Court has "the authority to waive the lack of  proper assignment of errors if the unassigned errors closely relate to errors properl y  pinpointed out or if the unassigned errors refer to matters upon which the de termination of the questions raised by the errors properly assigned depend." Therefore, "where the issues already raised also rest on other issues not specifically presented as long as the latter issues  bear relevance and clo se relation to the former and as long as th ey arise from matters on TH

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record, the Court has the authority to include them in its discussion of the controversy as well as to pass upon them."

 for a specified public purpose, the 1987 Constitution, restating anothe r general principle, treats the proceeds as a special fund to be paid out for such purpose. If, however, that  purpose has been fulfilled or is no l onger forthcoming, the balance, if any , shall then be transferred to the general funds of the government, which may thereafter be appropriated

9. ID.; ID.; ID.; NO POSITIVE RELIEF FOR INTERVENORS; THEIR RIGHT IS DEPENDENT UPON THE SANDIGANBAYAN'S RESOLUTION ON THE ACTION FOR THE RECOVERY OF THE SEQUESTERED SHARES. —  SHARES.  —  We  We cannot rule on intervenors' alleged right to vote at this time and in this case. That right is dependent upon the Sandiganbayan's resolution of their action for the recovery of said sequestered shares. Given the patent fact that intervenors are not registered stockholders of UCPB as of the moment, their asserted rights cannot be ruled upon in the present proceedings. Hence, no  positive relief can be give n them now, except insofar as they join pet itioner in barring  private respondents from voting the sub ject shares.

by Congress and expended purpose within thehas scope of therity general  An entity, whether public orfor priany vate,legitimate which holds the tax money no autho to fund. disburse it or to pay any of it to anyone, the power to dispose of such money being vested in the legislature. Thus, the 1987 Constitution, like its counterparts in the 1935 and the 1973 Constitution, mandates that no money shall be paid out of the national treasury except in SECHIA    pursuance of an appropriation made by law . SECHIA

VITUG, J., VITUG,  J., separate opinion:  opinion:   1. MERCANTILE LAW, CORPORATION CODE; SHARES OF STOCK; PURCHASE BY THE COCONUT INDUSTRY INVESTMENT FUND COMPANIES OF THE COCONUT FARMER'S SHARE IN UNITED COCONUT PLANTERS BANK DID NOT CHANGE THE PUBLIC CHARACTER OF THE SHARES. —  SHARES.  —  To  To account for their equity holdings in the bank, COCOFED, et al ., ., in their Memorandum, would advance that, in 1975, COCOFED, a private national association of coconut producers, was designated by the Philippine Coconut Authority ("PCA") as being the implementing agency for the free distribution of the shares of stock of the UCPB to the coconut farmers. By 02 May 1981, 232,805,852.16 of said shares were distributed to the farmers. Still there remained 15,619,419.84 shares registered in the name of COCOFED which, according to it, were ultimately given to the farmers. Prior to June 1986, a substantial number of the coconut farmers sold their shares in the bank at prices below par value. By way of a financial assistance to the selling coconut farmers, the UCPB Board of Directors authorized the CIIF companies to purchase their holdings in the bank at par value. These transactions, nevertheless, did not change the character of the UCPB shares, these having been bought with coconut levy funds which the Court distinctly characterized to be "clearly affected with public interest" and "raised such as they were by the State's police and taxing powers." The fundamental rule is that tax proceeds may only be used for a public purpose, which may either be a general public purpose to support the existence of the state or a special  public purpose to pursue certain legi timate objects of government i n the exercise of polic e  power, and none other. As a measure to ensure the proper uti lization of money collected

2. ID.; ID.; ID.; PENDING A CONCLUSIVE DETERMINATION ON THE LEGALITY OF THE 10% EQUITY RETENTION STANDING IN THE NAME OF RESPONDENT EDUARDO COJUANGCO, JR., IT WOULD BE NEITHER RIGHT NOR JUST TO DEPRIVE HIM FROM MEANWHILE EXERCISING HIS RIGHT TO AT LEAST VOTE THE SAME. —  SAME. —  Respondent  Respondent Eduardo Cojuangco, Jr., upon the other hand, in claiming ownership over a portion of the sequestered UCPB shares, advanced two documents  —   an an agreement in May 1975, where he appeared to have exercised his option to acquire the UCPB shares of stock owned by the family of the late Don Jose Cojuangco, Sr., amounting to 72.2% equity holding in the bank, at two hundred pesos (Php200.00) per share, and the "Agreement for the Acquisition of a Commercial Bank for the Benefit of the Coconut Farmers of the Philippines," dated 25 May 1975, whereby the PCA purchased with funds from the CCSF the aforesaid UCPB shares from Eduardo Cojuangco, Jr., also at two hundred pesos (Php200.00) per share. In the latter agreement, it was stipulated that as compensation for exercising his personal and exclusive option to acquire the UCPB shares and for transferring such shares to the PCA, Eduardo Cojuangco, Jr., would receive one (1) share for every nine (9) shares acquired by the PCA and additional equity in the bank. In sum, correlating the two agreements, Eduardo Cojuangco, Jr., would contend, in effect, that he retained title over roughly 10% equity holding in the bank and established his prima his  prima  facie right over the corresponding shares independently sourced from the coconut levy funds. Even if it were to be conceded that the said 10% holding in UCPB of Eduardo Cojuangco, Jr., could be assailed, pending a conclusive determination on the legality of such a retention, however, it would neither be right nor just to deprive him from meanwhile exercising his right to at least vote the same. For the foregoing reasons, I vote to  grant the  petition in part and to deny it insofar as the shares of stock pertaining to the 10% of the 72% equity retention standing in the name of Eduardo Cojuangco, Jr., are concerned. In  passing, I should like to state my under standing of the ruling of the Court. I must first clarify, however, that sequestration does not mean the vesting of title in the hands of the TH

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sequestering authority; rather, the term implies the preservation of assets. Neither ownership nor rights thereover are acquired or lost by virtue alone of sequestration —  sequestration  —   aa mere ancillary remedy to secure a disputed asset.

government. That issue must first be resolved by the Sandiganbayan Sandiganbayan.. In fact, when the Solicitor General, in G.R. No. 96073, filed a motion to declare the coconut levies collected  pursuant to the various issuances as pub lic funds and to declare Sectio n 5, Article III of Presidential Decree No. 1468 as unconstitutional, the Court denied the same in a

MELO, J., MELO,  J., dissenting opinion:  opinion:   Resolution dated March 26, 1996. 1. MERCANTILE LAW; CORPORATION LAW; SHARES OF STOCK; THE VALIDITY OF THE ACQUISITION OF THE UNITED COCONUT PLANTERS BANK SHARES IS THE VERY LIS VERY  LIS MOTA OF THE ACTION FOR RECONVEYANCE, ACCOUNTING, REVERSION AND RESTITUTION FILED BY THE PCGG WITH THE SANDIGANBAYAN; TO RULE ON THE MATTER WOULD BE TO PREEMPT SAID COURT. —  COURT. —  The  The view expressed by the majority that the UCPB shares, having been acquired with the use of coconut levy funds, and, therefore belong to the government, may very well turn out to be correct. However, since these issues are still pending litigation at the Sandiganbayan Sandiganbayan,, it would be premature, I submit, to rule on this point at this time. Verily, the validity of the acquisition by Cojuangco Jr., et al . of their UCPB shares is the very lis mota of the action for reconveyance, accounting, reversion, and restitution filed by the PCGG with the Sandiganbayan Sandiganbayan.. To rule on this matter would be to preempt said court. Too, the argument that the coconut levy funds used to purchase the sequestered UCPB shares of stock are public funds does not appear to have been raised before the Sandiganbayan;; consequently, the Sandiganbayan did not rule on the nature of the fund. It Sandiganbayan would be absurd to hold that the Sandiganbayan Sandiganbayan gravely  gravely abused its discretion in not holding that the sequestered shares belong prima belong  prima facie to the government, the issue of whether or not coconut levy funds are public funds not having been raised before it. DAaIHT DAaIHT   2. ID.; ID.; ID.; THE DETERMINATION OF WHETHER THE COCONUT LEVY FUNDS ARE PUBLIC FUNDS INVOLVES THE ASCERTAINMENT OF THE CONSTITUTIONALITY OF SECTION 5 OF ARTICLE III OF PRESIDENTIAL DECREE NO. 1468. —  1468. —  Moreover,  Moreover, and as mentioned earlier, the nature of the funds used is a matter which should be decided first-hand by the Sandiganbayan when it resolves the merits of Civil Case No. 0033-A. Note should also be taken of the fact that the determination of whether the coconut levy funds are public funds involves the ascertainment of the constitutionality of Section 5, Article III of Presidential Decree No. 961 and Section 5, Article III of Presidential Decree No. 1468. Presidential Decrees No. 961 and 1468 have not been repealed, revoked, or declared unconstitutional, hence they are  presumed valid and binding. Without a p revious declaration of unconstitu tionality, the coconut levy funds may not thus be characterized as prima as prima facie belonging facie belonging to the

3. ID.; ID.; ID.; THE QUESTION OF WHETHER THE COCONUT LEVY FUNDS ARE PUBLIC FUNDS IS NOT IN ISSUE IN THE PRESENT CASE. —  CASE.  —  And  And if it is to be recalled, the issue involved herein is whether or not the Sandiganbayan committed grave abuse of discretion when it issued the disputed order allowing respondents to vote the UCPB shares of stock registered in their names. The question of whether the coconut levy funds are public funds is not in issue here. In fact, the constitutionality of Presidential Decrees No. 961 and 1468 have not been raised by the PCGG during the proceedings  before the Sandiganbayan Sandiganbayan.. Moreover, it should be pointed out that the avowed purpose of sequestration is to preserve the assets sequestered to assure that if, and when, judgment is rendered in favor of the petitioner, the judgment may be implemented. "Preservation," not "deprivation" before judgment, is its essence. In the instant case, however, the actuations of PCGG with regard to the sequestered shares partake more of deprivation rather than  preservation. As pointed out by respond ents, since 1986, only one (1) stockholders' meeting of UCPB has been held. At this meeting, PCGG voted all of the shares, as a result of which all members of the Board of UCPB, since 1986 to the present, have been PCGG nominees. When vacancies in the Board occur because of resignation, replacements are installed by the remaining members of the Board  —  on  on nomination of the PCGG. The stockholders' meeting scheduled on March 6, 2001 would have been the first stockholders' meeting since 1986 at which registered stockholders would exercise their right to vote and by their vote elect the members of the Board of Directors. Also, the shares of stock in UCPB were sequestered in 1986. The civil action " Republic of the Philippines v. Eduardo M. Cojuangco, Jr .., Civil , Civil Case No. 033," 033 ," was instituted before the Sandiganbayan Sandiganbayan on  on July 30, 1987. This action included, among other things, the UCPB shares of stock and was filed to maintain the effectivity of the writs of sequestration pursuant to Section 26, Article XVIII of the Constitution. Notwithstanding the lapse of more than 14 years, the proceedings have  barely gone beyond the pre- trial stage. PCGG's exercise of the right to vote the sequestered shares of stock for a period of 14 years constitutes effectively a deprivation of a property right belonging to the registered stockholders (18 Am. (18  Am. Jur. 2d, Jur. 2d, Corporations 2d Section 1065, p. 859, citing cases), a state of affairs not within the contemplation of "sequestration" as a means of preservation of assets. DHATcE  DHATcE 

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4. ID.; ID.; INCIDENTS CONCERNING THE VOTING OF THE SEQUESTERED SHARES BEING MATTERS INCIDENTAL TO THE SEQUESTRATION SHOULD BE ADDRESSED TO THE SANDIGANBAYAN. —  SANDIGANBAYAN.  —  I  I regret to say that I find unacceptable the contention that the "law " law of the case" case " herein should be the Resolution dated February 16,

shall be exercised by the PCGG. In sum, the “public character” test, not the “two -tiered” one, applies in the instant controversy.

1993, of in Republic in Republic of the Philippines ayan, et. are al . For the UCPB shares stock respondents COCOFED, et vs. al . Sandiganb and Ballares, et al  not one, the subject of the case of relied upon. Hence, the Resolution therein could not have referred to or covered said shares. For another, and more importantly, what is invoked by petitioner is, in effect, merely a restraining order which was not re-affirmed by the Court when we rendered the main decision in the said consolidated sequestration cases. Rather, what I believe is truly applicable herein is the Court's decision in COCOFED vs. PCGG (178 SCRA 236 [1989]) wherein it was held that "the incidents concerning the voting of the sequestered shares, the COCOFED elections, and the replacement of directors, being matters incidental to the  sequestration, should be addressed to the Sand iganbayan iganbayan." ." Thus, the Sandiganbayan Sandiganbayan has  has  been given by the Court full d iscretion to evaluate and to allow or disallow the duly registered stockholders of the UCPB shares to exercise the right to vote the said shares in the UCPB elections and/or appointment/replacement of its directors. If, as in the case at hand, the Sandiganbayan Sandiganbayan,, in the exercise of its sound discretion and for justifiable reasons cited in its assailed Order of February 28, 2001, allowed herein private respondents to vote the sequestered shares in question, one would simply be at a loss to understand how such SHIETa   action could be said to be tainted with grave abuse of discretion. SHIETa

Before us is a Petition for Certiorari with a prayer for the issuance of a temporary restraining order and/or a writ of preliminary injunction under Rule 65 of the Rules of Court, seeking to set aside the February 28, 2001 Order   Order   2 of the First Division of the Sandiganbayan  3 in Civil Case Nos. 0033-A, 0033-B and 0033-F. The pertinent portions of Sandiganbayan the assailed Order read as follows:

N  D E C I S I O N  PANGANIBAN, J PANGANIBAN,  J P:  P:  The right to vote sequestered shares of stock registered in the names of private individuals or entities and alleged to have been acquired with ill-gotten wealth shall, as a rule, be exercised by the registered owner. The PCGG may, however, be granted such voting right  provided it can (1) show prima show  prima facie evidence facie evidence that the wealth and/or the shares are indeed ill-gotten; and (2) demonstrate imminent danger of dissipation of the assets, thus necessitating their continued sequestration and voting by the government until a decision, ruling with finality on their ownership, is promulgated by the proper court. cdasia  cdasia  However, However, the foregoing “two“two-tiered” test does not apply when the sequestered stocks are acquired with funds that are prima are  prima facie public facie  public in character or, at least, are affected with  public interest. Inasmuch as the sub ject UCPB shares in the present case were undisputably acquired with coco levy funds which are public in character, then the right to vote them

The Case  Case 

“In view hereof, the movants COCOFED, et al. and Ballares, et al . as well as Eduardo Cojuangco, et al., who were acknowledged to be registered stockholders of the UCPB are authorized, as are all other registered stockholders of the United Coconut Planters Bank, until further orders from this Court, to exercise their rights to vote their shares of stock and themselves to be voted upon in the United Coconut Planters Bank (UCPB) at the scheduled Stockholders‟ Meeting on March 6, 2001 or on any subsequent continuation or resetting thereof, and to perform such acts as will normally follow in the exercise of these rights as registered stockholders. “Since by way of form, the pleadings the  pleadings herein had been labeled as praying for an injunction, the right of the movants to exercise their right as abovementioned will be subject to the  posting of a nominal bond in the amount o f FIFTY THOUSAND PESOS (P50,000.00)  jointly for the defendan ts COCOFED, et al. and Ballares, et al., as well as all other registered stockholders of sequestered shares in that bank, and FIFTY THOUSAND PESOS (P50,000.00) for Eduardo Cojuangco, Jr., et al., to answer for any undue damage or injury to the United Coconut Planters Bank as may be attributed to their exercise of their rights as registered stockholders.”  stockholders.”  4  The Antecedents  Antecedents  The very roots of this case are anchored on the historic events that transpired during the change of government in 1986. Immediately after the 1986 EDSA Revolution, then President Corazon C. Aquino issued Executive Order (E.O.) Nos. 1, 1, 5 2 6 and 14. 14. 7  “On the explicit premise that „vast resources of the government have been amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates  both here and abroad,‟ the President ial Commission on Good Government (PCGG) was

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created by Executive Order No. 1 to assist the President in the recovery of the ill-gotten wealth thus accumulated whether located lo cated in the Philippines or abroad.”  abroad.” 8  Executive Order No. 2 states that the ill-gotten assets and properties are in the form of bank accounts, deposits, trust accounts, shares of stocks, buildings, shopping centers, condominiums, mansions, residences, estates, and other kinds of real and personal  properties in the Philippine s and in various countries of the world.  9  Executive Order No. 14, on the other hand, empowered the PCGG, with the assistance of the Office of the Solicitor General and other government agencies, inter alia, alia, to file and  prosecute all cases investigat ed by it under E.O. Nos. 1 and 2. IDASHa IDASHa   Pursuant to these laws, the PCGG issued and implemented numerous sequestrations, freeze orders and provisional takeovers of allegedly ill-gotten companies, assets and properties, real or personal.  personal. 10 10   Among the properties sequestered by the Commission were shares of stock in the United Coconut Planters Bank (UCPB) (UCPB) registered in the names of the alleged “one million coconut farmers,” the so-called so -called Coconut Industry Investment Fund companies (CIIF companies) and Private Respondent Eduardo Cojuangco Jr. (hereinafter “Cojuangco”).   In connection with the sequestration of the said UCPB shares, the PCGG, on July 31, 1987, instituted an action for reconveyance, reversion, accounting, restitution and damages docketed as Case No. 0033 in the Sandiganbayan. On November 15, 1990, upon Motion  Motion  11  11 of Private Respondent COCOFED, the 12  lifting the sequestration of the subject UCPB shares Sandiganbayan issued a Resolution  Resolution  12 on the ground that herein private respondents —  respondents  —  in  in particular, COCOFED and the so-called CIIF companies —  companies —  had  had not been impleaded by the PCGG as parties-defendants in its July 31, 1987 Complaint for reconveyance, reversion, accounting, restitution and damages. The Sandiganbayan ruled that the Writ of Sequestration issued by the Commission was automatically lifted for PCGG‟s failure to commence the corresponding judicial action within the six-month period ending on August 2, 1987 provided under Section 26, Article XVIII of the 1987 Constitution. The anti-graft court noted that though these entities were listed in an annex appended to the Complaint, they had not been named as partiesrespondents. This Sandiganbayan Resolution was challenged by the PCGG in a Petition for Certiorari Certiorari   docketed as G.R. No. 96073 in this Court. Meanwhile, upon motion of Cojuangco, the anti-

graft court ordered the holding of elections for the Board of Directors of UCPB. However, the PCGG applied for and was granted by this Court a Restraining Order enjoining the holding of the election. Subsequently, the Court lifted the Restraining Order and ordered the UCPB to proceed with the election of its board of directors. Furthermore, it allowed the sequestered shares to be voted by their registered owners. The victory of the registered shareholders was fleeting because the Court, acting on the solicitor general‟s Motion for Clarification/Manifestation, issued a Resolution o n February 16, 1993, declaring that “the right of petitioners [herein private respondents] to vote stock in their names at the meetings of the UCPB cannot be conceded at this time. That right still has to be established by them before the Sandiganbayan. Until that is done, they cannot be deemed legitimate owners of UCPB stock and cannot be accorded the right to vote them.” 13  13 The dispositive portion of the said Resolution reads as follows: “IN VIEW OF THE FOREGOING, the Court recalls and sets aside the Resolution dated March 3, 1992 and, pending resolution on the merits of the action at bar, and until further orders, suspends the effectivity of the lifting of the sequestration decreed by the Sandiganbayan on November 15, 1990, and directs the restoration of the status quo status  quo ante, ante , so as to allow the PCGG to continue voting the shares of stock under sequestration at the meetings of the United Coconut Coconut Planters Bank.”  Bank.” 14 14   On January 23, 1995, the Court rendered its final Decision in G.R. No. 96073, nullifying and setting aside the November 15, 1990 Resolution of the Sandiganbayan which, as earlier stated, lifted the sequestration of the subject UCPB shares. The express impleading of herein Respondents COCOFED et al . was deemed unnecessary because “the judgment may simply be directed against the shares of stock shown to have been issued in consideration of ill-gotten ill-gotten wealth.”  wealth.” 15 15  Furthermore, the companies “are simply the res in res in the actions for the recovery of illegally acquired wealth, and there is, in principle, no cause of action 16  against them and no ground to implead them as defendants in said case.”  16 

A month thereafter, the PCGG —  PCGG  —  pursuant  pursuant to an Order of the Sandiganbayan  —   subdivided Case No. 0033 into eight Complaints and docketed them as Case Nos. 0033-A to 0033-H. CaDEAT  CaDEAT  Six years later, on February 13, 2001, the Board of Directors of UCPB received from the ACCRA Law Office a letter written on behalf of the COCOFED and the alleged nameless one million coconut farmers, demanding the holding of a stockholders‟ meeting for th e TH

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 purpose of, among others, electing the board of directors. In response, the board appro ved a Resolution calling for a stockholders‟ meeting on March 6, 2001 at three o‟clock in the afternoon. On February 23, 2001, “COCOFED, et al . and Ballares, et al .” .” filed the “Class Action Omnibus Motion”  Motion” 17  17 referred to earlier in Sandiganbayan Civil Case Nos. 0033-A, 0033-B and 0033-F, asking the court a quo:  quo:  “1. To enjoin the PCGG from voting the UCPB shares of stock registered in the respective names of the more than one million coconut farmers; and “2. To enjoin the PCGG from voting the SMC shares registered in the names of the 14 CIIF holding companies including those registered in the name of the PCGG.”  18  18  On February 28, 2001, respondent court, after hearing the parties on oral argument, issued the assailed Order. Hence, this Petition by the Republic of the Philippines represented by the PCGG.   19 19   The case had initially been raffled to this Court‟s Third Division which, by a vote of 3 -2, 20  issued a Resolution Resolution  21  21 requiring the parties to maintain the status status quo  quo existing before 20 the issuance of the questioned Sandiganbayan Order dated February 28, 2001. On March 7, 2001, Respondent COCOFED et al. moved al. moved that the instant Petition be heard by the Court 22  The Motion was unanimously granted by the Third Division. en banc.  banc. 22

Despite the fact that the subject sequestered shares were purchased with coconut levy funds (which were declared public in character) and the continuing effectivity of Resolution dated February 16, 1993 in G.R. No. 96073 which allows the PCGG to vote said sequestered shares, Respondent Sandiganbayan, with grave abuse of discretion, issued its Order dated February 28, 2001 enjoining PCGG from voting the sequestered shares of stock in UCPB. “B. “B.   The Respondent Sandiganbayan violated petitioner‟s right to due process by taking cognizance of the Class Action Omnibus Motion dated 23 February 2001 despite gross lack of sufficient notice and by issuing the writ of preliminary injunction despite the obvious fact that there was no actual pressing necessity or urgency to do so.”   In its Resolution dated April 17, 2001, the Court defined the issue to be resolved in the instant case simply as follows: “Did the Sandiganbayan commit grave abuse of discretion when it issued the disputed Order allowing respondents to vote UCPB shares of stock registered in the name of respondents?”   respondents?” This Court‟s Ruling   The Petition is impressed with merit.  Main Issue:  Issue: 

23  On March 13, 2001, the Court en banc resolved to accept the Third Division‟s referral.  referral. 23  It heard the case on Oral Argument in Baguio City on April 17, 2001. During the hearing, it admitted the intervention of a group of coconut farmers and farm worker organizations, the  Pambansang Koalisyon ng mga Samahang Magsasaka at Manggagawa ng Niyu gan (PKSMMN). The coalition claims that its members have been excluded from the benefits of the coconut levy fund. Inter fund.  Inter alia, alia, it joined petitioner in praying for the exclusion of  private respondents in voting t he sequestered shares.  Issues    Issues Petitioner submits the following issues for our consideration:  consideration:  24 24  

Who May Vote the Sequestered Shares of Stock?   Simply stated, the gut substantive issue to be resolved in the present Petition is: “Who may vote the sequestered UCPB shares while the main case for their reversion to the State is  pending in the Sandiganbayan?”   This Court holds that the government should be allowed to continue voting those shares inasmuch as they were purchased with coconut levy funds —  funds —  funds  funds that are prima are prima facie  public in character or, at the very least, are “clearl y affected with public inte rest.” rest.”   General Rule: Sequestered Shares

“A.  “A.   Are Voted by the Registered Holder  

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At the outset, it is necessary to restate the general rule that the registered owner of the shares of a corporation exercises the right and the privilege of voting.  voting.  25 25  This principle applies even to shares that are sequestered by the government, over which the PCGG as a 26  On the other mere conservator cannot, as a general rule, exercise acts of dominion.  dominion.  26

“The facts show that the corporation corporati on known as BASECO was owned and controlled by President Marcos „during his administration, through nominees, by taking undue advantage of his public office and/or using his powers, authority, or influence,‟ and that it was by and through the same means, that BASECO had taken over the business and/or assets of the

hand, it is authorized to vote these sequestered shares registered in the names of private  persons and acquired with alle gedly ill-gotten wealth, if it is able to satisfy the two-tiered 27  and and PCGG  PCGG v. Cojuangco Jr .,  ., 28 28  as test devised by the Court in Cojuangco v. Calpo  Calpo 27 follows:

 National Shipyard and Engin eering Co., Inc., and other government-o wned or controlled entities.”  31  entities.” 31 

(1) Is there prima there prima facie evidence showing that the said shares are ill-gotten and thus belong to the State? (2) Is there an imminent danger of dissipation, thus necessitating their continued sequestration and voting by the PCGG, while the main issue is pending with the Sandiganbayan? Sequestered Shares Acquired with  Public Funds Are an Exception  Exception   From the foregoing general principle, the Court in Baseco in  Baseco v. PCGG  PCGG 29  29 (hereinafter “ Baseco  Baseco”) ”) and Cojuangco Jr. v. Roxas  Roxas 30  30 (“ (“Cojuangco-Roxas Cojuangco-Roxas”) ”) has provided two clear “public character” exceptions under which the government is granted the authority to vote the shares: (1) Where government shares are taken over by private persons or entities who/which registered them in their own names, and (2) Where the capitalization or shares that were acquired with public funds somehow landed in private hands. The exceptions are based on the common-sense principle that legal fiction must yield to truth; that public property registered in the names of non-owners is affected with trust relations; and that the prima the  prima facie beneficial facie  beneficial owner should be given th e privilege of enjoying the rights flowing from the prima the prima facie fact of ownership. In Baseco In Baseco,, a private corporation known as the Bataan Shipyard and Engineering Co. was  placed under sequestration b y the PCGG. Explained the Court:

Given this factual background, the Court discussed PCGG‟s right over BASECO in the following manner: “Now, in the special instance of a business enterprise shown by evidence to have been „taken over by the government of the Marcos Admi nistration or by entities or persons close to former President Marcos,‟ the PCGG is given power and authority, as already adverted to, to „provisionally take (it) over in the public interest or to prevent . . . (its) disposal or dissipation;‟ and since the term the  term is obviously employed in reference to going concerns, or  business enterprises in operation , something more than mere physical custody is connoted; the PCGG may in this case exercise some measure of control in the operation, running, or management of the business itself.”  itself.” 32  32  Citing an earlier Resolution, it ruled further: “ „Petitioner has failed to make out a case of grave abuse or excess of jurisdiction in respondents' calling and holding of a stockholders' meeting for the election of directors as authorized by the Memorandum of the President . . . (to the PCGG) dated June 26, 1986,  particularly, where as in th is case, the government can, through its designated directors,  properly exercise control and manag ement over what appear to be properties and assets owned and belonging to the government itself and over which the persons who appear in this case on behalf of BASECO have failed to show any right or even any shareholding in said corporation.”  corporation.” 33  33 (Italics supplied) The Court granted PCGG the right to vote the sequestered shares because they appeared to  be “assets belonging to the go vernment itself.” The Concurring Opinion of Justic e Ameurfina A. Melencio-Herrera, in which she was joined by Justice Florentino P. Feliciano, explained this principle as follows: “I have no objection to according the right to vote sequestered stock in case of a take -over of business actually belonging to the government or whose capitalization comes from  public funds but which, somehow, l anded in the hands of private persons, as in the c ase of  BASECO. To  BASECO.  To my mind, however, caution and prudence should be exercised in the case of TH

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sequestered shares of an on-going private business enterprise, specially the sensitive ones, since the true and real ownership of said shares is yet to be determined and proven more 34  (Italics supplied) conclusively by the Courts.”  Courts.”  34

This fact was plainly was plainly admitted by admitted  by private respondent‟s counsel, Atty. Teresita J. Herbosa, during the Oral Arguments held on April 17, 2001 in Baguio City, as follows: “Justice Panganiban:  Panganiban: 

The exception was cited again by the Court in Cojuangco-Roxas Cojuangco-Roxas  35  35 in this wise: “The rule in this jurisdiction is, therefore, clear. The PCGG cannot perform acts perform  acts of strict ownership of sequestered property. It is a mere conservator. It may not vote the shares in a corporation and elect the members of the board of directors. The only conceivable exception is in a case of a takeover of a business belonging to the government or whose capitalization comes from public funds, but which landed in private hands as in BASECO .” 36  (Italics supplied) 36

“In regard to the theory of the Solicitor General that the funds used to purchase [both] the original 28 million and the subsequent 80 million came from the CCSF, Coconut Consumers Stabilization Fund, do you agree with that? “Atty. Herbosa:  Herbosa:  “Yes, Your Honor.  Honor. 

The “public character” test was reiterated in many subsequent cases; most recently, in Cojuangco-Roxas,, 38  38 this Court said that  Antiporda v. Sandiganbayan. Sandiganbayan . 37  37 Expressly citing Cojuangco-Roxas in determining the issue of whether the PCGG should be allowed to vote sequestered

xxx xxx xxx

shares, it was crucial to find to find out first whether these were purchased with public funds , as follows:

“So it seems that the parties [have] agreed up to that point that the funds used to purchase 72% of the former First United Bank came from the Coconut Consumers Stabilization Fund?

“It is thus important to determine first if the sequestered corporate shares came from public 39   funds that landed in private hands.”  hands.” 39 In short, when sequestered shares registered in the names of private individuals or entities are alleged to have been acquired with ill-gotten wealth, then the two-tiered test is applied. However, when the sequestered shares in the name of private individuals or entities are shown, prima shown,  prima facie, facie , to have been (1) originally government shares, or (2) purchased with  public funds or those affected with public interest, then the t wo-tiered test does not apply. Rather, the public character exceptions in Baseco in Baseco v. PCGG and Cojuangco Jr. v. Roxas  prevail; that is, the gover nment shall vote the shares. UCPB Shares Were Acquired   With Coconut Levy Funds  Funds  In the present case before the Court, it is not disputed that the money used to purchase the sequestered UCPB shares came from the Coconut Consumer Stabilization Fund (CCSF), otherwise known as the coconut levy funds.

“Justice Panganiban:  Panganiban: 

“Atty. Herbosa:  Herbosa:  40   “Yes, Your Honor.”  Honor.” 40 Indeed in Cocofed v. PCGG, PCGG, 41  41 this Court categorically declared that the UCPB was acquired “with the use of the Coconut Consumers Stabilization Fund in virtue of Presidential Presiden tial Decree No. 755, promulgated on July 29, 1975.”   Coconut Levy Funds Are  Are    Affected With Public Inte rest   Having conclusively shown that the sequestered UCPB shares were purchased with coconut levies, we hold that these funds and shares are, at the very least, “affected with  public interest.”  interest.”   The Resolution issued by the Court on February 16, 1993 in  Republic v. Sandiganbayan  Sandiganbayan  42  42  stated that coconut levy funds were “clearly affected with public interest”; thus, herein

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 private respondents —  respondents  —  even  even if they are the registered shareholders —  shareholders —  cannot  cannot be accorded the right to vote them. We quote the said Resolution in part, as follows: “The coconut levy funds being „clearly affected with public interest, it follows that the corporations formed and organized from those funds, and all assets acquired therefrom 43   should also be regarded as „clearly affected with public interest.‟ ”  ”  43 xxx xxx xxx “Assuming, however, for purposes of argument merely, the lifting of sequestration to be correct, may it also be assumed that the lifting of sequestration removed the character of the coconut levy companies of being affected with public interest, so that they and their stock and assets may now be considered to be of private ownership? May it be assumed that the lifting of sequestration operated to relieve the holders of stock in the coconut levy companies —  companies  —  affected  affected with public interest —  interest  —  of  of the obligation of proving how that stock had been legitimately transferred to private ownership, or that those stockholders who had had some part in the collection, administration, or disposition of the coconut levy funds are now deemed qualified to acquire said stock, and freed from any doubt or suspicion that they had taken advantage of their special or fiduciary relation with the agencies in charge of the coconut levies and the funds thereby accumulated? The obvious answer to each of the questions is a negative one. It seems plain that the lifting of sequestration has no relevance to the nature of the coconut levy companies or their stock or property, or to the legal legality ity of the acquisition by private persons of their interest therein, or to the latter‟s capacity or disqualification to acquire stock in the companies or any property acquired from coconut levy funds. “This being so, the right of the [petitioners] to vote  stock in their names at the meeting s of the UCPB cannot be conceded at this time. That right still has to be established by them before the Sandiganbayan. Until that is done, they cannot be deemed legitimate owners of UCPB stock and cannot be accorded the right to vote them.”  them.” 44 44  (Italics supplied) It is however contended by respondents that this Resolution was in the nature of a temporary restraining order. As such, it was supposedly interlocutory in character and  became functus  became  functus oficio when this Court decided G.R. No. 96073 on January 23, 1995. LexLib LexLib   This argument is aptly answered by petitioner in its Memorandum, which we quote:

“The ruling made in the Resolution dated 16 February 1993 confirming the public nature of the coconut levy funds and denying claimants their purported right to vote is an affirmation of doctrines laid down in the cases of COCOFED v. PCGG supra, Baseco v. PCGG, supra, supra, and Cojuangco v. Roxas, supra. supra. Therefore it is of no moment that the Resolution dated 16 45  (Italics supplied) February 1993 has not been ratified. Its ratified.  Its jurisprudential bases remain.” remain .”  45 Granting arguendo arguendo that  that the Resolution is interlocutory, the truth remains: the coconut levy funds are still “clearly affected with public interest.” That was the truth in 1989 as quoted  by this Court in its February 16, 1993 Re solution, and so it is today. Said the Court in 1989: “The utilization and proper management of the coconut levy funds, raised as they were by the State‟s police and taxing powers, are certainly the concern of the Government. It cannot c annot  be denied that it was the wel fare of the entire nation th at provided the prime moving factor for the imposition of the levy. It cannot be denied that the coconut industry is one of the major industries supporting the national economy. It is, therefor e, e, the State‟s concern to make it a strong and secure source not only of the livelihood of a significant segment of the  population but also of export ea rnings the sustained growth of which is one of th e imperatives of economic stability. The coconut levy funds are clearly affected with public interest. Until it is demonstrated satisfactorily that they have legitimately become private  funds, they must prima facie and by reason o f the circumstances in which they we re raised and accumulated be accounted subject to the measures prescribed in E.O. Nos. 1, 2, and 14 to prevent their concealment, dissipation, etc., which measures include the sequestration and other orders of the PCGG complained of. ” 46  46 (Italics supplied) To repeat, the foregoing juridical situation has not changed. It is still the truth today: “the coconut levy funds are clearly affected with public interest.” Private respondents have not “demonstrated satisfactorily that they have legitimately become private funds.”   If private respondents really and sincerely believed that the  final Decision of the Court in  Republic v. Sandiganbayan (G.R. No. 96073, promulgated on January 23, 1995) granted them the right to vote, why did they wait for the lapse of six long years before definitively asserting it (1) through their letter dated February 13, 2001, addressed to the UCPB Board of Directors, demanding the holding of a shareholders‟ meeting on March 6, 2001; and (2) through their Omnibus Motion dated February 23, 2001 filed in the court a quo, quo, seeking to enjoin PCGG from voting the subject sequestered shares during the said stockholders‟ meeting? Certainly, if they even half believed their submission now —  now  —  that  that they already had such right in 1995 —  1995 —  why  why are they suddenly and imperiously claiming it only now? only now?

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It should be stressed at this point that the assailed Sandiganbayan Order dated February 28, 2001 —  2001  —  allowing  allowing private respondents to vote the sequestered shares —  shares —  is  is not based on any finding that the coconut levies and the shares have “legitimately become private funds.”  Neither is it based on the all eged lifting of the TRO issued by this Co urt on February 16, 1993. Rather, it is anchored on the grossly mistaken application of the two-tiered test mentioned earlier in this Decision. To stress, the two-tiered test is applied only when the sequestered asset in the hands of a  private person is alleged to h ave been acquired with ill -gotten wealth. Hence, in  PCGG v. 47  we allowed Eduardo Cojuangco Jr. to vote the sequestered shares of the San Cojuangco,, 47 Cojuangco Miguel Corporation (SMC) registered in his name but alleged to have been acquired with ill-gotten wealth. We did so on his representation that he had acquired them with borrowed funds and upon failure of the PCGG P CGG to satisfy the “two“two -tiered” test. This test was, however, not applied to sequestered SMC shares that were purchased with coco levy funds. DHcESI  DHcESI  In the present case, the sequestered UCPB shares are confirmed to have been acquired with coco levies, not with alleged ill-gotten wealth. Hence, by parity of reasoning, the right to vote them is not subject to the “two -tiered test” but to the public character of their acquisition, which per Antiporda per Antiporda v. Sandiganbayan cited earlier, must first must  first be  be determined. Coconut Levy Funds Are  Are    Prima Facie Public Funds  Funds  To avoid misunderstanding and confusion, this Court will even be more categorical and  positive than its earlie r pronouncements: the coconut levy funds are not only affected with  public interest; they are, in fact, prima facie public f unds.  unds.  Public funds are those moneys belonging to the State or to any political subdivision of the State; more specifically, taxes, customs duties and moneys raised by operation of law for the support of the government or for the discharge of its obligations.  obligations. 48 48  Undeniably, coconut levy funds satisfy this general definition of public funds,  because of the following reasons:

1. Coconut levy funds are raised with the use of the police and taxing powers of the State.

2. They are levies imposed by the State for the benefit of the coconut industry and its farmers. 3. Respondents have judicially admitted that the sequestered shares were purchased with  public funds. 4. The Commission on Audit (COA) reviews the use of coconut levy funds. 5. The Bureau of Internal Revenue (BIR), with the acquiescence of private respondents, has treated them as public funds. 6. The very laws governing coconut levies recognize their public character. We shall now discuss each of the foregoing reasons, any one of which is enough to show their public character.

1. Coconut Levy Funds Are Raised Through  Through   the State‟s Police and Taxing Powers.  Powers.   Indeed, coconut levy funds partake of the nature of taxes which, in general, are enforced  proportional contribution s from persons and properties, exacted by the State by virtue of its 49   sovereignty for the support of government and for all public needs.  needs. 49 Based on this definition, a tax has three elements, namely: a) it is an enforced proportional contribution from persons and properties; b) it is imposed by the State by virtue of its sovereignty; and c) it is levied for the support of the government. The coconut levy funds fall squarely into these elements for the following reasons: (a) They were generated by virtue of statutory enactments imposed on the coconut farmers requiring the payment of prescribed amounts. Thus, P.D. No. 276, which created the Coconut Consumers Stabilization Fund (CCSF), mandated the following: “a. A levy, initially, of P15.00 per 100 kilograms of copra resecada resecada or  or its equivalent in other coconut products, shall be imposed on every first sale, in accordance with the mechanics established under R.A. 6260, effective at the start of business hours on August 10, 1973.

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“The proceeds from the levy shall be deposited with the P hilippine National Bank or any other government bank to the account of the Coconut Consumers Stabilization Fund, as a separate trust fund which shall not form part of the general fund of the government.”   50  50 

(b) The coconut levies were imposed pursuant to the laws enacted by the proper legislative authorities of the State. Indeed, the CCSF was collected under P.D. No. 276, issued by former President Ferdinand E. Marcos who was then exercising legislative powers.  powers. 56  56 

The coco levies were further clarified in amendatory laws, specifically P.D. No. 961  961  51 51  and 52   —  —  in  in this wise: P.D. No. 1468  1468 52

(c) They were clearly imposed for a public purpose. There is absolutely no question that they were collected to advance the government‟s avowed policy of protecting the coconut industry. This Court takes judicial notice of the fact that the coconut industry is one of the great economic pillars of our nation, and coconuts and their by products occupy a leading  position among the country‟s export p roducts; that it gives employment to thousan ds of Filipinos; that it is a great source of the State‟s wealth; and that it is one of the important sources of foreign exchange needed by our country and, thus, pivotal in the plans of a government committed to a policy of currency stability.

“The Authority (Philippine Coconut Authority) is hereby empowered to impose and collect a levy, to be known as the Coconut Consumers Stabilization Fund Levy, on every one hundred kilos of copra resecada resecada,, or its equivalent in other coconut products delivered to, and/or purchased by, copra exporters, oil millers, desiccators and other end-users of copra or its equivalent in other coconut products. The levy shall be paid by such copra exporters, oil millers, desiccators and other end-users of copra or its equivalent in other coconut  products under such rules and regulati ons as the Authority may prescribe. Until othe rwise  prescribed by the Authority, the cu rrent levy being collected shall be continued.”  continued.”  53 53   Like other tax measures, they were not voluntary payments or donations by the people. They were enforced contributions exacted on pain of penal sanctions, as provided under P.D. No. 276: “3. Any person Any person or firm who violates any provisio n of this Decree or the rules and regulations promulgated thereunder, shall, in addition to penalties already prescribed under existing administrative and special law, pay a fine of not less than P2,500 or more than P10,000, or suffer cancellation of licenses to operate, or both, at the discretion of the Court.”  54  Court.” 54  Such penalties were later amended thus: “Whenever any person or entity willfully and deliberately violates any of the provisions of this Act, or any rule or regulation legally promulgated hereunder by the Authority, the  person or persons responsible for such violation shall be punished by a fine of not more than P20,000.00 and by imprisonment of not more than five years. If the offender be a corporation, partnership or a juridical person, the penalty shall be imposed on the officer or officers authorizing, permitting or tolerating the violation. Aliens found guilty of any offenses shall, after having served his sentence, be immediately deported and, in the case of a naturalized citizen, his certificate of naturalization shall be cancelled.”  cancelled.”  55 55  

Taxation is done not merely to raise revenues to support the government, but also to  provide means for the rehabilit ation and the stabilizat ion of a threatened ind ustry, which is so affected with public interest as to be within the police power of the State, as held in 57  and Osmeña v. Orbos. Orbos. 58  58  Caltex Philippines v. COA  COA  57 Even if the money is allocated for a special purpose and raised by special means, it is still  public in character. In the case before us, the funds were even used to organize and finance State offices. In Cocofed v. PCGG, PCGG, 59 59  the Court observed that certain agencies or enterprises “were organized and financed with revenues derived from coconut levies imposed under a succession of laws of the late dictatorship . . . with deposed Ferdinand Marcos and his cronies as the suspected authors and chief beneficiaries of the resulting coconut industry monopoly.”  monopoly.” 60  60 The Court continued: “. . . . It cannot be denied that the coconut industry is one of the major industries supporting the national economy. It is, therefore, the State‟s concern to make it a strong and secure source not only of t he livelihood of a significant segment of the population, but also of export earnings the sustained growth of which is one of the imperatives of economic stability. . . ..”   61 61   2. Coconut Funds Are Levied for the Benefit   Benefit   of the Coconut Industry and Its Farmers.  Farmers.   Just like the sugar levy funds, the coconut levy funds constitute state funds even though they may be held for a special public purpose. In fact, Executive Order No. 481 dated May 1, 1998 specifically likens the coconut levy funds to the sugar levy funds, both being special public funds acquired through the taxing TH

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and police powers of the State. The State.  The sugar levy funds, which are strikingly similar to the coconut levies in their imposition and purpose, were declared public funds by this Court in Gaston v. Republic Planters Bank , 62 62  from which we quote: “The stabilization fees collected are in the nature of a tax which is within the power of the State to impose for the promotion of the sugar industry ( Lutz ( Lutz vs. Araneta, Araneta, 98 Phil. 148). They constitute sugar liens (Sec. 7[b], P.D. No. 388). The collections made accrue to a „Special Fund,‟ a „Development and Stabilization Fund,‟ almost identical to the „Sugar Adjustment and Stabilization Fund‟ created under Section 6 of Commonwealth Act 567. The tax collected is not in a pure exercise of the taxing power. It is levied with a regulatory  purpose, to provide means for the stabili zation of the sugar industry. The lev y is primarily in the exercise of the police power of the State. ( Lutz vs. Araneta, supra.)” supra.)”  63 63   The Court further explained:  explained: 64  64 

shares of respondent Bank is not alien to the purpose intended because of the Bank‟s character as a commodity bank for sugar conceived for the industry‟s growth and development. Furthermore, of note is the fact that one-half (1/2) or P0.50 per picul, of the amount levied under P.D. No. 388 is to be utilized for the „payment of salaries and wages of personnel, fringe benefits and allowances of officers and employees of PHILSUCOM‟ thereby immediately negating the claim that the entire amount levied is in trust for sugar,  producers, planters and millers.

“To rule in petitioners‟ favor would contravene the general principle that revenues derived from taxes cannot be used for purely private purposes or for the exclusive benefit of private  persons. The Stabilization Fund is to be utilized for the benefit of the entire sugar industry, „and all its components, stabilization of the domestic market including the foreign market,‟  market,‟   the industry being of vital importance to the country‟s economy and to national interest.”  

“The stabilization fees in question are levied by the State upon sugar millers, planters and  producers for a special purpose  —  that of „financing the growth and development of the sugar industry and all its components, stabilization of the domestic market including the foreign market.‟ The fact that the State has taken possession of moneys pursuant to law is  sufficient to constitut e them as state funds, even though they a re held for a special purpose (Lawrence v. American Surety Co., 263 Mich 586, 294 ALR 535, cited in 42 Am. Jur., Sec. 2., p. 718). Having been levied for a special purpose, the revenues collected are to be treated as a special fund, to be, in the language of the statute, „administered in trust‟ for the purpose intended. Once the purpose has been fulfilled or abandoned, the balance, if any, is to be transferred to the general funds of the Government. That is the essence of the trust intended (see 1987 Constitution, Art. VI, Sec. 29[3], lifted from the 1935 Constitution,  Article VI, Sec. 23[1]. 23[1] . (Italics supplied) “The character of the Stabilization Fund as a special fund is emphasized by the fact that the funds are deposited in the Philippine National Bank and not in the Philippine Treasury, moneys from which may be paid out only in pursuance of an appropriation made by law (1987 Constitution, Article VI, Sec. 29[1], 1973 Constitution, Article VIII, Sec. 18[1]). “That the fees were collected from sugar producers, planters and millers, and that the funds were channeled to the purchase of shares of stock in respondent Bank do not convert the funds into a trust fund for their benefit nor make them the beneficial owners of the shares so purchased. It is but rational that the fees be collected from them since it is also they who are to be benefited from the expenditure of the funds derived from it. The investment in

In the same manner, this Court has also ruled that the oil stabilization funds were public in character and subject to audit by COA. It ruled in this wise: “Hence, it seems clear that while the funds collected may be referred to as taxes, they are exacted in the exercise of the police power of the State. Moreover, that the OPSF is a special fund is plain from the special treatment given it by E.O. 137. It is segregated from the general fund; and while it is placed in what the law refers to as a „trust liability account,‟ the fund nonetheless remains subject to the scrutiny and review of the COA. The Court is satisfied that these measures comply with the constitutional description of a „special fund.‟ Indeed, the practice is not without precedent.”  precedent.”  65 65   66 Justice Florentino P. Feliciano In his Concurring Opinion in Kilosbayan in Kilosbayan v. Guingona, Guingona , 66  explained that the funds raised by the On-line Lottery System were also public in nature. In his words: “. . .. In the case presently before the Court, the funds involved are clearly public in nature. The funds to be generated by the proposed lottery are to be raised from the population at large. Should the proposed operation be as successful as its proponents project, those funds will come from well-nigh every town and barrio of Luzon. The funds here involved are  public in another very real sen se: they will belong to the PCSO, a government o wned or controlled corporation and an instrumentality of the government and are destined for utilization in social development projects which, at least in principle, are designed to  benefit the general publ ic. . . .. The interest of a private c itizen in seeing to it th at public TH

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funds, from whatever source they may have been derived, go only to the uses directed and  permitted by law is as real and p ersonal and substantial as the interest of a private taxpayer in seeing to it that tax monies are not intercepted on their way to the public treasury or otherwise diverted from uses prescribed or allowed by law. It is also pertinent to note that the more successful the government is in raising revenues by non-traditional methods such as PAGCOR operations and privatization measures, the lesser will be the pressure upon the traditional sources of public revenues, i.e., the pocket books of individual taxpayers and 67   importers.”  67 importers.” Thus, the coconut levy funds —  funds —  like  like the sugar levy and the oil stabilization funds, as well as the monies generated by the On-line Lottery System —  System  —  are  are funds exacted by the State. Being enforced contributions, they are prima are  prima facie public facie  public funds. 3. Respondents Judicially Admit That   the Levies Are Government Funds.  Funds.   Equally important as the fact that the coconut levy funds were raised through the taxing and  police powers of the State is respond ents‟ effective judicial admission t hat these levies are government funds. As shown by the attachments to their pleadings,  pleadings, 68  68 respondents concede that the Coconut Consumers Stabilization Fund (CCSF) and the Coconut Investment Development Fund “constitute government funds . . . for the benefit of coconut farmers.”   “Collections on both levies constitute government funds. However, unlike other taxes that the Government levies and collects such as income tax, tariff and customs duties, etc etc., ., the collections on the CCSF and CIDF are, by express provision of the laws imposing them, for a definite purpose, not just for any governmental purpose. As stated above part of the collections on the CCSF levy should be spent for the benefit of the coconut farmers. And in respect of the collections on the CIDF levy, P.D. 582 mandatorily requires that the same should be spent exclusively exclusively for  for the establishment, operation and maintenance of a hybrid coconut seed garden and the distribution, for free, to the coconut farmers of the hybrid coconut seednuts produced from that seed garden. IDAESH  IDAESH  “On the other hand, the laws which impose special levies on specific industries, for example on the mining industry, sugar industry, timber industry, etc etc., ., do not, by their terms, expressly require that the collections on those levies be spent exclusively for the  benefit of the industry concern ed. And if the enabling law thus so provide, th e fact remains that the governmental agency entrusted with the duty of implementing the purpose for

which the levy is imposed is vested with the discretionary power to determine when and how the collections should be appropriated.”  appropriated.”  69 69   4. The COA Audit Shows the  the    Public Nature of the Funds.  Funds.   70  the COA reviewed the Under COA Office Order No. 86-9470 dated April 15, 1986,  70 expenditure and use of the coconut levies allocated for the acquisition of the UCPB. The audit was aimed at ascertaining whether these were utilized for the purpose for which they had been intended.  intended. 71  71 Under the 1987 Constitution, the powers of the COA are as follows: “The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities . . . .”  .” 72  72  Because these funds have been subjected to COA audit, there can be no other conclusion than that they are prima are prima facie public facie  public in character. 5. The BIR Has Pronounced That the  the   Coconut Levy Funds Are Taxes.  Taxes.   In response to a query posed by the administrator of the Philippine Coconut Authority regarding the character of the coconut levy funds, the Bureau of Internal Revenue has affirmed that these funds are public in character. It held as follows: “[T]he coconut levy is not a public trust fund for the benefit of the coconut farmers, but is in the nature of a tax and, therefore, . . . public funds that are subject to government administration and disposition.”  73 disposition.” 73   Furthermore, the executive branch treats the coconut levies as public funds. Thus, Executive Order No. 277, issued on September 24, 1995, directed the mode of treatment, utilization, administration and management of the coconut levy funds. It provided as follows: „(a) The coconut levy funds, which include include all income, interests, proceeds or profits derived therefrom, as well as all assets, properties and shares of stocks procured or obtained with the use of such funds, shall funds,  shall be treated, utilized, administe red and managed as public funds TH

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consistent with the uses and purposes under the laws which constituted them and the development priorities of the government, including the government‟s coconut  productivity, rehabilit ation, research extension, farmers organiz ations, and market  promotions programs, which are designed to a dvance the development of the co conut 74  (Italics supplied) industry and the welfare of the coconut farmers.”  74 Doctrinally, acts of the executive branch are  prima facie valid facie valid and binding, unless declared unconstitutional or contrary to law. 6. Laws Governing Coconut Levies  Levies   Recognize Their Public Nature.  Nature.   Finally and tellingly, the very laws governing the coconut levies recognize their public character. Thus, the third Whereas clause of P.D. No. 276 treats them as special funds for a specific public purpose. Furthermore, P.D. No. 711 transferred to the general funds of the State all existing special and fiduciary funds including the CCSF. On the other hand, P.D.  No. 1234 specifically declared the CCSF as a special fund for a special p urpose, which should be treated as a special account in the National Treasury. TcEaDS  TcEaDS   Moreover, even President Marcos himself, as the sole legislative/executive authority during the martial law years, struck off the phrase which is a private fund of the coconut farmers from the original copy of Executive Order No. 504 dated May 31, 1978, and we quote: “WHEREAS, by means of the Coconut Consumers Stabilization Fund („CCSF‟), which is the private fund of the coconut farmers (deleted), essential coconut-based products are made available to household consumers at socialized prices.” (Italics (I talics supplied) The phrase in bold face —  face —  which is the private fund of the coconut farmers  —  was  was crossed out and duly initialed by its author, former President Marcos. This deletion, clearly visible in “Attachment C” of petitioner‟s Memorandum,  Memorandum, 75 75  was a categorical legislative intent to regard the CCSF as public, not private, funds.

Having shown that the coconut levy funds are not only affected with public interest, but are in fact prima fact prima facie public facie  public funds, this Court believes that the government should be allowed to vote the questioned shares, because they belong to it as the prima the prima facie beneficial facie  beneficial and true owner. As stated at the beginning, voting is an act of dominion that should be exercised by the share owner. One of the recognized rights of an owner is the right to vote at meetings of the 76  Voting rights may be corporation. The right to vote is classified as the right to control.  control.  76 for the purpose of, among others, electing or removing directors, amending a charter, or making or amending bylaws.  bylaws.  77  77 Because the subject UCPB shares were acquired with government funds, the government becomes their prima their  prima facie beneficial facie beneficial and true o wner. Ownership includes the right to enjoy, dispose of, exclude and recover a thing without limitations other than those established by law or by the owner.   78  78 Ownership has been 79  And the right to vote shares aptly described as the most comprehensive of all real rights.  rights.  79 is a mere incident of ownership. In the present case, the government has been shown to be the the prima  prima facie owner facie  owner of the funds used to purchase the shares. Hence, it should be allowed the rights and privileges flowing from such fact.

And paraphrasing Cocofed v. PCGG, PCGG, already cited earlier, the Republic should continue to vote those shares until and unless private respondents are able to demonstrate, in the main cases pending before the Sandiganbayan, that “they [the sequestered UCPB shares] have legitimately become private.” private.”    Procedural and Incidental Issues:  Issues:   Grave Abuse of Discretion,  Discretion,   Improper Arguments  Arguments  and Intervenors‟ Relief  

 Having Been Acquired With Public  Public    Funds, UCPB Shares Belong, Prima

Procedurally, respondents argue that petitioner has failed to demonstrate that the Sandiganbayan committed grave abuse of discretion, a demonstration required in every  petition under Rule 65.  80  80 

 Facie, to the Government  

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We disagree. We hold that the Sandiganbayan gravely abused its discretion when it contravened the rulings of this Court in Baseco in  Baseco and Cojuangco-Roxas Cojuangco-Roxas —   —  thereby  thereby unlawfully, capriciously and arbitrarily depriving the government of its right to vote sequestered shares purchased with coconut levy funds which are prima are  prima facie public facie  public funds. Indeed, grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence. In one case,  case,   81  81 this Court ruled that the lower court‟s resolution was “tantamount to overruling a judicial  pronouncement of the highest Court . . . and unmistakably a very grave abuse of discretion.”  82  discretion.” 82 

 No Positive Relief  For Intervenors  Intervenors  Intervenors anchor their interest in this case on an alleged right that they are trying to enforce in another Sandiganbayan case docketed as SB Case No. 0187.  0187. 85  85 In that case, they seek the recovery of the subject UCPB shares from herein private respondents and the corporations controlled by them. Therefore, the rights sought to be protected and the reliefs  prayed for by intervenors are still being litigated in t he said case. The purported right s they are invoking are mere expectancies wholly dependent on the outcome of that case in the Sandiganbayan.

The Public Character of

Private respondents also contend that the public nature of the coconut levy funds was not

Clearly, we cannot rule on intervenors‟ alleged right to vote at this time and in this case. That right is dependent depende nt upon the Sandiganbayan‟s resolution of their action for the recovery of said sequestered shares. Given the patent fact that intervenors are not registered stockholders of UCPB as of the moment, their asserted rights cannot be ruled upon in the

raised as an issue before the Sandiganbayan. Hence, it could not be taken up before this Court.

 present proceedings. Hence, no posi tive relief can be given them no w, except insofar as they join petitioner in barring private respondents from voting the subject shares.

Again we disagree. By ruling that the two-tiered test should be applied in evaluating private respondents‟ claim of exercising voting rights over the sequestered shares, s hares, the Sandiganbayan effectively held that the subject assets were private in character. Thus, to meet this issue, the Office of the Solicitor General countered that the shares were not  private in character, and that quite the contrary, th ey were and are public i n nature because they were acquired with coco levy funds which are public in character. In short, the main issue of who may vote the shares cannot be determined without passing upon the question of the public/private character of the shares and the funds used to acquire them. The latter

 Epilogue    Epilogue

issue, although not specifically raised in the Court a quo, quo, should still be resolved in order to fully adjudicate the main issue.

may conduct or the final judgment it may promulgate in Civil Case Nos. 0033-A, 0033-B and 0033-F. Our determination here is merely  prima facie, facie , and should not bar the anti-graft court from making a final ruling, after proper trial and hearing, on the issues and prayers in the said civil cases, particularly in reference to the ownership of the subject shares. cTSHaE  cTSHaE 

Shares Is a Valid Issue  Issue  

Indeed, this Court has “the authority to waive the lack of proper assignment of err ors err ors if the unassigned errors closely relate to errors properly pinpointed out or if the unassigned errors refer to matters upon which the determination of the questions raised by the errors properly assigned depend.”  depend.” 83  83  Therefore, “where the issues already raised also rest on other issues not specifically  presented as long as the lat ter issues bear relevance and close re lation to the former and as long as they arise from matters on record, the Court has the authority to include them in its 84   discussion of the controversy as well as to pass upon them.”  84

In sum, we hold that the Sandiganbayan committed grave abuse of discretion in grossly contradicting and effectively reversing existing jurisprudence, and in depriving the government of its right to vote the sequestered UCPB shares which are  prima facie public facie  public in character. In making this ruling, we are in no way preempting the proceedings the Sandiganbayan

We also lay down the caveat that, in declaring the coco levy funds to be  prima facie public facie  public in character, we are not ruling in any final manner on their classification —  classification  —  whether  whether they are general or trust or special funds —  funds —  since  since such classification is not at issue here. Suffice it to say that the public nature of the coco levy funds is decreed by the Court only for the  purpose of determining the right to vote the shares, pending the final o utcome of the said civil cases.

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 Neither are we resolving in th e present case the question of whether t he shares held by Respondent Cojuangco are, as he claims, the result of private enterprise. This factual matter should also be taken up in the final decision in the cited cases that are pending in the court a quo. quo. Again suffice it to say that the only issue settled here is the right of PCGG to vote

DIVISION   FIRST DIVISION

the sequestered shares, pending the final outcome of said cases.

HAO,  FRANCIS CHUA, CHUA, petitioner , vs . HON. COURT OF APPEALS and LYDIA C. HAO, respondents . respondents.

This matter involving the coconut levy funds and the sequestered UCPB shares has been straddling the courts for about 15 years. What we are discussing in the present Petition, we stress, is just an incident of the main cases which are pending in the anti-graft court —  court —   the the cases for the reconveyance, reversion and restitution to the State of these UCPB shares.

D E C I S I O N  N 

The resolution of the main cases has indeed been long overdue. Every effort, both by the  parties and the Sandiganbayan Sandiganbayan,, should be exerted to finally to  finally settle this controversy. WHEREFORE, the Petition is hereby GRANTED and the assailed Order SET ASIDE. The PCGG shall continue voting the sequestered shares until Sandiganbayan Civil Case Nos. 0033-A, 0033-B and 0033-F are finally and completely resolved. Furthermore, the Sandiganbayan is ORDERED to decide with finality the aforesaid civil cases within a  period of six (6) months from notice. It shall repo rt to this Court on the progress of the said cases every three (3) months, on pain of contempt. The Petition in Intervention is DISMISSED inasmuch as the reliefs prayed for are not covered by the main issues in this case. No costs. IAEcCT  IAEcCT  SO ORDERED.  Davide, Jr., C.J., Bellosillo, Mendoza, Quisumbing, Buena , De Leon, Jr., and Carpio, JJ., JJ., concur.  Melo, J., see J.,  see dissenting opinion.  Puno, J., joins J., joins the separate opinion of J. Vitug. Vitug, J., see J., see separate opinion.  Kapunan, Ynares-Santiago, Sandoval-Gutie rrez, JJ., JJ., concur  concur with the dissenting opinion of J. Melo.  Pardo, J., Join in the result of the dissents

[G.R. No. 150793. November 19, 2004.]

QUISUMBING,, J QUISUMBING  J p:  p: Petitioner assails the Decision the Decision,, 1 dated June 14, 2001, of the Court of Appeals in CA-G.R. SP No. 57070, affirming the Order , dated October 5, 1999, of the Regional Trial Court (RTC) of Manila, Branch 19. The RTC reversed the Order , dated April 26, 1999, of the Metropolitan Trial Court (MeTC) of Manila, Branch 22. Also challenged by herein  petitioner is the CA Resolution CA  Resolution,, 2 dated November 20, 2001, denying his Motion for Reconsideration. The facts, as culled from the records, are as follows: On February 28, 1996, private respondent Lydia Hao, treasurer of Siena Realty Corporation, filed a complaint-affidavit with the City Prosecutor of Manila charging Francis Chua and his wife, Elsa Chua, of four counts of falsification of public documents 171 4 of the Revised Penal Code. The charge  pursuant to Article 172  172  3 in relation to Article 171  reads: That on or about May 13, 1994, in the City of Manila, Philippines, the said accused, being then of a private individual, then document, and there willfully, unlawfully and prepared, feloniously commit acts falsification upon adid public to wit: the said accused certified, and falsified the Minutes of the Annual Stockholders meeting of the Board of Directors of the Siena Realty Corporation, duly notarized before a Notary Public, Atty. Juanito G. Garcia and entered in his Notarial Registry as Doc No. 109, Page 22, Book No. IV and Series of 1994, and therefore, a public document, by making or causing it to appear in said Minutes of the Annual Stockholders Meeting that one LYDIA HAO CHUA was present and has participated in said proceedings, when in truth and in fact, as the said accused fully well knew that said Lydia C. Hao was never present during the Annual Stockholders Meeting held on April 30, 1994 and neither has participated in the proceedings thereof to the prejudice of public interest and in violation of public faith and destruction of truth as therein proclaimed.

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CONTRARY TO LAW.  LAW. 5  Thereafter, the City Prosecutor filed the Information docketed as Criminal Case No. 285721  6 for falsification of public document, before the Metropolitan Trial Court (MeTC) 285721 of Manila, Branch 22, against Francis Chua but dismissed the accusation against Elsa Chua. Herein petitioner, Francis Chua, was arraigned and trial ensued thereafter.

material facts; (2) allowing Siena Realty Corporation to be impleaded as co-petitioner in SCA No. 99-94846 although it was not a party to the criminal complaint in Criminal Case  No. 285721; and (3) effectively amend ing the information against the ac cused in violation of his constitutional rights. On June 14, 2001, the appellate court promulgated its assailed Decision denying the  petition, thus:

During the trial in the MeTC, private prosecutors Atty. Evelyn Sua-Kho and Atty. Ariel Bruno Rivera appeared as private prosecutors and presented Hao as their first witness.

WHEREFORE, premises considered, the petition is hereby DENIED DUE COURSE and DISMISSED. The Order, dated October 5, 1999 as well as the Order, dated December 3, 1999, are hereby AFFIRMED in toto. toto.

After Hao's testimony, Chua moved to exclude complainant's counsels as private  prosecutors in the case on the grou nd that Hao failed to allege a nd prove any civil liabilit y in the case.

SO ORDERED.  ORDERED. 9 

In an Order , dated April 26, 1999, the MeTC granted Chua's motion and ordered the complainant's counsels to be excluded from actively prosecuting Criminal Case No. 285721. Hao moved for reconsideration but it was denied. Hence, Hao filed a petition for certiorari certiorari docketed  docketed as SCA No. 99-94846,  99-94846,  7 entitled entitled Lydia  Lydia C. Hao, in her own behalf and for the benefit of Siena Realty Corporation v. Francis Chua, and the Honorable Hipolito dela Vega, Presiding Judge, Branch 22, Metropolitan Trial Court of Manila, Manila, before the Regional Trial Court (RTC) of Manila, Branch 19. TcDaSI TcDaSI  

Petitioner had argued before the Court of Appeals that respondent had no authority whatsoever to bring a suit in behalf of the Corporation since there was no Board Resolution authorizing her to file the suit. For her part, respondent Hao claimed that the suit was brought under the concept of a derivative suit. Respondent maintained that when the directors or trustees refused to file a suit even when there was a demand from stockholders, a derivative suit was allowed.

The RTC gave due course to the petition and on October 5, 1999, the RTC in an order reversed the MeTC Order. The dispositive portion reads:

The Court of Appeals held that the action was indeed a derivative suit, for it alleged that  petitioner falsified docu ments pertaining to projects of the corporation and made it appear that the petitioner was a stockholder and a director of the corporation. According to the appellate court, the corporation was a necessary party to the petition filed with the RTC and even if private respondent filed the criminal case, her act should not divest the Corporation of its right to be a party and present its own claim for damages.

WHEREFORE, theprivate petitionprosecutors is GRANTED. The of respondent ordered allow the intervention of the in behalf petitionerCourt LydiaisC. Hao intothe  prosecution of the civil aspec t of Crim. Case No. 285721, before Br. 22 [MeTC], Manil a, allowing Attys. Evelyn Sua-Kho and Ariel Bruno Rivera to actively participate in the  proceedings.

Petitioner moved for reconsideration but it was denied in a Resolution dated November 20, 2001. Hence, this petition alleging that the Court of Appeals committed reversible errors:

SO ORDERED.  ORDERED. 8  Chua moved for reconsideration which was denied.

I.. . . IN RULING THAT LYDIA HAO'S FILING OF CRIMINAL CASE NO. 285721 WAS IN THE NATURE OF A DERIVATIVE SUIT

Dissatisfied, Chua filed before the Court of Appeals a petition for certiorari certiorari.. The petition alleged that the lower court acted with grave abuse of discretion in: (1) refusing to consider

II.. . . IN UPHOLDING THE RULING OF JUDGE DAGUNA THAT SIENA REAL TY WAS A PROPER PETITIONER IN SCA NO. [99-94846]

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III.. . . IN UPHOLDING JUDGE DAGUNA'S DECISION ALLOWING LYDIA HAO'S COUNSEL TO CONTINUE AS PRIVATE PROSECUTORS IN CRIMINAL CASE NO. 285721

Moreover, in Western Institute, Institute, we said that a mere appeal in the civil aspect cannot be treated as a derivative suit because the appeal lacked the basic requirement that it must be alleged in the complaint that the shareholder is suing on a derivative cause of action for and in behalf of the corporation and other shareholders who wish to join. CDESIA CDESIA  

IV.. . . IN [OMITTING] TO CONSIDER AND RULE UPONINTHE ISSUE THAT JUDGE DAGUNA ACTED IN GRAVE ABUSE OF DISCRETION NOT DISMISSING THE 10   PETITION IN SCA NO. [99-94846] FOR BEING A SHAM PLEADING.  PLEADING. 10 The pertinent issues in this petition are the following: (1) Is the criminal complaint in the nature of a derivative suit? (2) Is Siena Realty Corporation a proper petitioner in SCA No. 99-94846? and (3) Should private prosecutors be allowed to actively participate in the trial of Criminal Case No. 285721.

23, 14 14  where a Under Section 36  36 13  13 of the Corporation Code, read in relation to Section 23,  corporation is an injured party, its power to sue is lodged with its board of directors or 15  An individual stockholder is permitted to institute a derivative suit on behalf of trustees.  15 trustees. the corporation wherein he holds stocks in order to protect or vindicate corporate rights, whenever the officials of the corporation refuse to sue, or are the ones to be sued, or hold the control of the corporation. In such actions, the suing stockholder is regarded as a nominal party, with the corporation as the real party in interest.  interest.  16 16  

On the first issue, petitioner claims that the Court of Appeals erred when (1) it sustained the lower court in giving due course to respondent's petition in SCA No. 99-94846 despite the fact that the Corporation was not the private complainant in Criminal Case No. 285721, and

A derivative action is a suit by a shareholder to enforce a corporate cause of action. The

(2) when it ruled that Criminal Case No. 285721 was in the nature of a derivative suit. Petitioner avers that a derivative suit is by nature peculiar only to intra-corporate  proceedings and cannot be made p art of a criminal action. He cit es the case of Western  Institute of Technology, Inc . v. Salas Salas,, 11 11  where the court said that an appeal on the civil aspect of a criminal case cannot be treated as a derivative suit. Petitioner asserts that in this case, the civil aspect of a criminal case cannot be treated as a derivative suit, considering that Siena Realty Corporation was not the private complainant. Petitioner misapprehends our ruling in Western Institute. Institute. In that case, we said: Here, however, the case is not a derivative suit but is merely an appeal on the civil aspect of Criminal Cases Nos. 37097 and 37098 filed with the RTC of Iloilo for estafa and falsification of public document. Among the basic requirements for a derivative suit to  prosper is that the minority sharehold er who is suing for and on behalf of the corporat ion must allege in his complaint before the proper forum that he is suing on a derivative cause of action on behalf of the corporation and all other shareholders similarly situated who wish to join. . . . This was not complied with by the petitioners either in their complaint before the court a quo nor quo nor in the instant petition which, in part, merely states that "this is a petition for review on certiorari certiorari on  on pure questions of law to set aside a portion of the RTC decision in Criminal Cases Nos. 37097 and 37098" since the trial court's judgment of acquittal failed to impose civil liability against the private respondents. By no amount of equity considerations, if at all deserved, can a mere appeal on the civil aspect of a criminal case be treated as a derivative suit.  suit.  12  12 

corporation is aperson necessary partyoftothe thecorporation. suit. And the relief which is granted ishas a judgment against a third in favor Similarly, if a corporation a defense to an action against it and is not asserting it, a stockholder may intervene and defend on  behalf of the corporation.  17  17  Under the Revised Penal Code, every person criminally liable for a felony is also civilly 18  When a criminal action is instituted, the civil action for the recovery of civil liable.  18 liable. liability arising from the offense charged shall be deemed instituted with the criminal action, unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.  19 19   In Criminal Case No. 285721, the complaint was instituted by respondent against petitioner for falsifying corporate documents whose subject concerns corporate projects of Siena Realty Corporation. Clearly, Siena Realty Corporation is an offended party. Hence, Siena Realty Corporation has a cause of action. And the civil case for the corporate cause of action is deemed instituted in the criminal action. However, the board of directors of the corporation in this case did not institute the action against petitioner. Private respondent was the one who instituted the action. Private respondent asserts that she filed a derivative suit in behalf of the corporation. This assertion is inaccurate. Not every suit filed in behalf of the corporation is a derivative suit. For a derivative suit to prosper, it is required that the minority stockholder suing for and on  behalf of the corporation must all ege in his complaint that he is suing on a derivative cause of action on behalf of the corporation and all other stockholders similarly situated who may 20  It is a condition sine wish to join him in the suit.  suit.  20 condition sine qua non that non that the corporation be TH

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impleaded as a party because not only is the corporation an indispensable party, but it is also the present rule that it must be served with process. The judgment must be made  binding upon the corporation in order that the corporatio n may get the benefit of the suit and may not bring subsequent suit against the same defendants for the same cause of action. In other words, the corporation must be joined as party because it is its cause of 21   action that is being litigated and because judgment must be a res adjudicata against adjudicata against it.  it. 21 In the criminal complaint filed by herein respondent, nowhere is it stated that she is filing the same in behalf and for the benefit of the corporation. Thus, the criminal complaint including the civil aspect thereof could not be deemed in the nature of a derivative suit. We turn now to the second issue, is the corporation a proper party in the petition for certiorari under certiorari  under Rule 65 before the RTC? Note that the case was titled " Lydia " Lydia C. Hao, in her own behalf and for the benefit of Siena Realty Corporation v. Francis Chua, and the  Honorable Hipolito dela Vega, Presiding Judge, Branch 22, Metropolitan Trial Court of  Manila."  Manila ." Petitioner before us now claims that the corporation is not a private complainant in Criminal Case No. 285721, and thus cannot be included as appellant in SCA No. 9994846. Petitioner invokes the case of Ciudad Real & Dev‟t. Cor   poration v. Court of Appeals. Appeals . 22 22  In Ciudad Real , it was ruled that the Court of Appeals committed grave abuse of discretion when it upheld the standing of Magdiwang Realty Corporation as a party to the petition for certiorari,, even though it was not a party-in-interest in the civil case before the lower court. certiorari In the present case, respondent claims that the complaint was filed by her not only in her  personal capacity, but li kewise for the benefit of the corporat ion. Additionally, she avers that she has exhausted all remedies available to her before she instituted the case, not only to claim damages for herself but also to recover the damages caused to the company. Under Rule 65 of the Rules of Civil Procedure,  23  23 when a trial court commits a grave abuse of discretion amounting to lack or excess of jurisdiction, the person aggrieved can file a special civil action for certiorari certiorari.. The aggrieved parties in such a case are the State and the  private offended party or complai nant.  nant. 24  24  In a string of cases, we consistently ruled that only a party-in-interest or those aggrieved may file certiorari certiorari cases.  cases. It is settled that the offended parties in criminal cases have sufficient interest and personality as "person(s) aggrieved" to file special civil action of  prohibition and certiorari certiorari.. 25 25   In Ciudad Real , cited by petitioner, we held that the appellate court committed grave abuse of discretion when it sanctioned the standing of a corporation to join said petition for

certiorari,, despite the finality of the trial court's denial of its Motion for Intervention and certiorari the subsequent Motion to Substitute and/or Join as Party/Plaintiff.  Note, however, that in  Pastor, Jr. v. Court of Appeals  Appeals  26  26 we held that if aggrieved, even a non-party mayofinstitute a petition for and certiorari. certiorari In athat case, for petitioner was, the her own right three mining claims could .file petition the holder fastest in and certiorari, certiorari most feasible remedy since she could not intervene in the probate of her father-in-law‟s father-in- law‟s estate.  27  estate. 27  In the instant case, we find that the recourse of the complainant to the respondent Court of Appeals was proper. The petition was brought in her own name and in behalf of the Corporation. Although, the corporation was not a complainant in the criminal action, the subject of the falsification was the corporation's project and the falsified documents were corporate documents. Therefore, the corporation is a proper party in the petition for certiorari because certiorari  because the proceedings in the criminal case directly and adversely affected the corporation. We turn now to the third issue. Did the Court of Appeals and the lower court err in allowing private prosecutors to actively participate in the trial of Criminal Case No. 285721? 28  holding that where from the nature of Petitioner cites the case of Tan, Jr. v. Gallardo, Gallardo , 28 the offense or where the law defining and punishing the offense charged does not provide for an indemnity, the offended party may not intervene in the prosecution of the offense. Petitioner's contention lacks merit. Generally, the basis of civil liability arising from crime is the fundamental postulate that every man criminally liable is also civilly liable. When a  person commits a crime he offends two entiti es namely (1) the society in which he lives in or the political theperson, State whose law he chastity has violated; and (2)has thebeen individual member of the entity societycalled whose right, honor, or property actually or directly injured or damaged by the same punishable act or omission. An act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Additionally, what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to another by reason of his own act or omission, whether done intentionally or negligently. The indemnity which a person is sentenced to pay forms an 29 The civil integral part of the penalty imposed by law for the commission of the crime.   29  action involves the civil liability arising from the offense charged which includes restitution, reparation of the damage caused, and indemnification for consequential damages.  30  damages. 30 

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Under the Rules, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the  prosecution of the offense.  offense.  31  31 Rule 111(a) of the Rules of Criminal Procedure provides that, "[w]hen a criminal action is instituted, the civil action arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately, or institutes the civil action prior to the criminal action."

SO ORDERED.  Davide, Jr., C .J ., Ynares-Santiago, Carpio  and  and Azcuna,  Azcuna, JJ ., concur. SECOND DIVISION  DIVISION  [G.R. No. 152392. May 26, 2005.]

Private respondent did not waive the civil action, nor did she reserve the right to institute it separately, nor institute the civil action for damages arising from the offense charged. Thus, we find that the private prosecutors can intervene in the trial of the criminal action. Petitioner avers, however, that respondent's testimony in the inferior court did not establish nor prove any damages personally sustained by her as a result of petitioner's alleged acts of falsification. Petitioner adds that since no personal damages were proven therein, then the  participation of her counsel as private prosecutors, who were supposed to pu rsue the civil aspect of a criminal case, is not necessary and is without basis. IHcTDA  IHcTDA  When the civil action is instituted with the criminal action, evidence should be taken of the damages claimed and the court should determine who are the persons entitled to such indemnity. The civil liability arising from the crime may be determined in the criminal  proceedings if the offended pa rty does not waive to have it adjudg ed or does not reserve the right to institute a separate civil action against the defendant. Accordingly, if there is no waiver or reservation of civil liability, evidence should be allowed to establish the extent of injuries suffered.  suffered. 32 32   In the case before us, there was neither a waiver nor a reservation made; nor did the offended party institute a separate civil action. It follows that evidence should be allowed in the criminal proceedings to establish the civil liability arising from the offense committed, and the private offended party has the right to intervene through the private prosecutors.

WHEREFORE, the instant petition is DENIED. The Decision, dated June 14, 2001, and the Resolution, dated November 20, 2001, of the Court of Appeals in CA-G.R. SP No. 57070, affirming the Order, dated October 5, 1999, of the Regional Trial Court (RTC) of Manila, Branch 19, are AFFIRMED. Accordingly, the private prosecutors are hereby allowed to intervene in behalf of private respondent Lydia Hao in the prosecution of the civil aspect of Criminal Case No. 285721 before Branch 22, of Metropolitan Trial Court (MeTC) of Manila. Costs against petitioner.

EXPERTRAVEL & TOURS, INC., INC., petitioner , vs . COURT OF APPEALS and KOREAN AIRLINES, AIRLINES, respondents  respondents.. N   DECISION CALLEJO, SR .., J , J p:  p: Before us is a petition for review on certiorari certiorari of  of the Decision  Decision  1 of the Court of Appeals (CA) in CA-G.R. SP No. 61000 dismissing the petition for certiorari certiorari and  and mandamus mandamus filed  filed  by Expertravel and Tours, Inc. (ETI). The Antecedents  Antecedents  Korean Airlines (KAL) is a corporation established and registered in the Republic of South Korea and licensed to do business in the Philippines. Its general manager in the Philippines is Suk Kyoo Kim, while its appointed counsel was Atty. Mario Aguinaldo and his law firm. On September 6, 1999, KAL, through Atty. Aguinaldo, filed a Complaint   2 against ETI with the Regional Trial Court (RTC) of Manila, for the collection of the principal amount of P260,150.00, plus attorney's fees and exemplary damages. The verification and certification against forum shopping was signed by Atty. Aguinaldo, who indicated therein that he was the resident agent and legal counsel of KAL and had caused the preparation of the complaint. ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to execute the verification and certificate of non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. KAL opposed the motion, contending that Atty. Aguinaldo was its resident agent and was registered as such with the Securities and Exchange Commission (SEC) as required by the Corporation Code of the Philippines. It was further alleged that Atty. Aguinaldo was also the corporate secretary of KAL.

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Appended to the said opposition was the identification card of Atty. Aguinaldo, showing that he was the lawyer of KAL. During the hearing of January 28, 2000, Atty. Aguinaldo claimed that he had been authorized to fileathe complaint through a resolution of theUpon KALhis Board of Directors approved during special meeting held on June 25, 1999. motion, KAL was given a period of 10 days within which to submit a copy of the said resolution. The trial court granted the motion. Atty. Aguinaldo subsequently filed other similar motions, which the trial court granted. Finally, KAL submitted on March 6, 2000 an Affidavit   3 of even date, executed by its general manager Suk Kyoo Kim, alleging that the board of directors conducted a special teleconference on June 25, 1999, which he and Atty. Aguinaldo attended. It was also averred that in that same teleconference, the board of directors approved a resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping and to file the complaint. Suk Kyoo Kim also alleged, however, that the corporation had no written copy of the aforesaid resolution. On April 12, 2000, the trial court issued an Order   Order   4 denying the motion to dismiss, giving credence to the claims of Atty. Aguinaldo and Suk Kyoo Kim that the KAL Board of Directors indeed conducted a teleconference on June 25, 1999, during which it approved a resolution as quoted in the submitted affidavit. CAacTH  CAacTH   ETI filed a motion for the reconsideration of the Order, contending that it was inappropriate for the court to take judicial notice of the said teleconference without any prior hearing. The trial court denied the motion in its Order  5 dated August 8, 2000.

HEREBY CERTIFY that during a special meeting of the Board of Directors of the Corporation held on June 25, 1999 at which a quorum was present, the said Board unanimously passed, voted upon and approved the following resolution which is now in full force and effect, to wit: RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers are hereby appointed and authorized to take with whatever legal action necessary to effect the collection of the unpaid account of Expert Travel & Tours. They are hereby specifically authorized to prosecute, litigate, defend, sign and execute any document or paper necessary to the filing and prosecution of said claim in Court, attend the Pre-Trial Proceedings and enter into a compromise agreement relative to the above-mentioned claim. IN WITNESS WHEREOF, I have hereunto affixed my signature this 10th day of January, 1999, in the City of Manila, Philippines. (Sgd.) MARIO A. AGUINALDO Resident Agent SUBSCRIBED AND SWORN to before me this 10th day of January, 1999, Atty. Mario A. Aguinaldo exhibiting to me his Community Tax Certificate No. 14914545, issued on January 7, 2000 at Manila, Philippines. (Sgd.)

ETI then filed a petition for certiorari certiorari and  and mandamus mandamus,, assailing the orders of the RTC. In its comment on theworded petition, appended a certificate signed by Atty. Aguinaldo dated January 10, 2000, as KAL follows:

Doc. No. 119;ATTY. HENRY D. ADASA Page No. 25;Notary Public

SECRETARY'S/RESIDENT AGENT'S CERTIFICATE Book No. XXIVUntil December 31, 2000 KNOW ALL MEN BY THESE PRESENTS: Series of 2000.PTR #889583/MLA 1/3/2000  1/3/2000  6  I, Mario A. Aguinaldo, of legal age, Filipino, and duly elected and appointed Corporate Secretary and Resident Agent of KOREAN AIRLINES, a foreign corporation duly organized and existing under and by virtue of the laws of the Republic of Korea and also duly registered and authorized to do business in the Philippines, with office address at Ground Floor, LPL Plaza Building, 124 Alfaro St., Salcedo Village, Makati City,

On December 18, 2001, the CA rendered judgment dismissing the petition, ruling that the verification and certificate of non-forum shopping executed by Atty. Aguinaldo was sufficient compliance with the Rules of Court. According to the appellate court, Atty. Aguinaldo had been duly authorized by the board resolution approved on June 25, 1999, TH

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and was the resident agent of KAL. As such, the RTC could not be faulted for taking  judicial notice of th e said teleconference of the KAL Board of Directors. ETI filed a motion for reconsideration of the said decision, which the CA denied. Thus, ETI, petitioner, comes to the Court by way of petition for review on certiorari certiorari and  and raisesnow the the following issue: DID PUBLIC RESPONDENT COURT OF APPEALS DEPART FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT RENDERED ITS QUESTIONED DECISION AND WHEN IT ISSUED ITS QUESTIONED RESOLUTION, ANNEXES A AND B OF THE INSTANT PETITION?  PETITION?  7  The petitioner asserts that compliance with Section 5, Rule 7, of the Rules of Court can be determined only from the contents of the complaint and not by documents or pleadings outside thereof. Hence, the trial court committed grave abuse of discretion amounting to excess of jurisdiction, and the CA erred in considering the affidavit of the respondent's general manager, as well the Secretary's/Resident andwith the the resolution of the board ofas directors contained therein,Agent's as proofCertification of compliance requirements of Section 5, Rule 7 of the Rules of Court. The petitioner also maintains that the RTC cannot take judicial notice of the said teleconference without prior hearing, nor any motion therefor. The petitioner reiterates its submission that the teleconference and the resolution adverted to by the respondent was a mere fabrication. The respondent, for its part, avers that the issue of whether modern technology is used in the field of business is a factual issue; hence, cannot be raised in a petition for review on certiorari under certiorari  under Rule 45 of the Rules of Court. On the merits of the petition, it insists that Atty. Aguinaldo, as the resident agent and corporate secretary, is authorized to sign and execute the certificate of non-forum shopping required by Section 5, Rule 7 of the Rules of Court, on top of the board resolution approved during the teleconference of June 25, 1999. The respondent insists that "technological advances in this time and age are as commonplace as daybreak." Hence, the courts may take judicial notice that the Philippine Long Distance Telephone Company, Inc. had provided a record of corporate conferences and meetings through FiberNet using fiber-optic transmission technology, and that such technology facilitates voice and image transmission with ease; this makes constant communication between a foreign-based office and its Philippine-based branches faster and easier, allowing for cost-cutting in terms of travel concerns. It points out that even the ECommerce Law has recognized this modern technology. The respondent posits that the courts are aware of this development in technology; hence, may take judicial notice thereof without need of hearings. Even if such hearing is required, the requirement is nevertheless satisfied if a party is allowed to file pleadings by way of comment or opposition thereto. DHSaCA DHSaCA  

In its reply, the petitioner pointed out that there are no rulings on the matter of teleconferencing as a means of conducting meetings of board of directors for purposes of  passing a resolution; until and after teleconferencing is reco gnized as a legitimate means of gathering a quorum of board of directors, such cannot be taken judicial notice of by the court. It asserts that safeguards must first be set up to prevent any mischief on the public or to protect the general public from any possible fraud. It further proposes possible amendments to the Corporation Code to give recognition to such manner of board meetings to transact business for the corporation, or other related corporate matters; until then, the  petitioner asserts, teleco nferencing cannot be the subje ct of judicial notice. The petitioner further avers that the supposed holding of a special meeting on June 25, 1999 through teleconferencing where Atty. Aguinaldo was supposedly given such an authority is a farce, considering that there was no mention of where it was held, whether in this country or elsewhere. It insists that the Corporation Code requires board resolutions of corporations to be submitted to the SEC. Even assuming that there was such a teleconference, it would be against the provisions of the Corporation Code not to have any record thereof.

The petitioner insists that the teleconference and resolution adverted to by the respondent in its pleadings were mere fabrications foisted by the respondent and its counsel on the RTC, the CA and this Court. The petition is meritorious. Section 5, Rule 7 of the Rules of Court provides: SEC. 5.Certification 5.Certification against forum shopping . —  The  The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory  pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case TH

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without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. It is settled that the requirement to file a certificate of non-forum shopping is mandatory  mandatory 8  and that the failure to comply with this requirement cannot be excused. The certification is a peculiar and personal responsibility of the party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action. Hence, the certification must be accomplished by the party himself  because he has actual kno wledge of whether or not he has initia ted similar actions or  proceedings in different court s or tribunals. Even his counsel may be unaware of such fact s. 9 Hence, the requisite certification executed by the plaintiff's counsel will not suffice.   10  10  In a case where the plaintiff is a private corporation, the certification may be signed, for and on behalf of the said corporation, by a specifically authorized person, including its retained counsel, who has personal knowledge of the facts required to be established by the documents. The reason was explained by the Court in National in National Steel Corporation v. Court of Appeals, Appeals, 11  11 as follows: Unlike natural persons, corporations may perform physical actions only through properly delegated individuals; namely, its officers and/or agents. xxx xxx xxx

The suchCode as theand petitioner, hasare noimplied powersby except expressly on it bycorporation, the Corporation those that or arethose incidental to itsconferred existence. In turn, a corporation exercises said powers through its board of directors and/or its dulyauthorized officers and agents. Physical acts, like the signing of documents, can be  performed only by natural persons duly-au thorized for the purpose by corporate b y-laws or  by specific act of the board of directors. "All acts within the powers of a corp oration may  be performed by agents of its selectio n; and except so far as limitations or restrictions which may be imposed by special charter, by-law, or statutory provisions, the same general  principles of law which govern the re lation of agency for a natural p erson govern the officer or agent of a corporation, of whatever status or rank, in respect to his power to act for the corporation; and agents once appointed, or members acting in their stead, are subject to the same rules, liabilities and incapacities as are agents of individuals and private  persons." ECTSDa ECTSDa  

xxx xxx xxx . . . For who else knows of the circumstances required in the Certificate but its own retained counsel. Its regular officers, like its board chairman and president, may not even know the details required therein. Indeed, the certificate of non-forum shopping may be incorporated in the complaint or appended thereto as an integral part of the complaint. The rule is that compliance with the rule after the filing of the complaint, or the dismissal of a complaint based on its noncompliance with the rule, is impermissible. However, in exceptional circumstances, the 12  If the authority of a party's court may allow subsequent compliance with the rule.  rule. 12 counsel to execute a certificate of non-forum shopping is disputed by the adverse party, the former is required to show proof of such authority or representation. In this case, the petitioner, as the defendant in the RTC, assailed the authority of Atty. Aguinaldo to execute the requisite verification and certificate of non-forum shopping as the resident agent and counsel ofestablish the respondent. It was, thus, incumbent upon the to respondent, as the plaintiff, to allege and that Atty. Aguinaldo had such authority execute the requisite verification and certification for and in its behalf. The respondent, however, failed to do so. The verification and certificate of non-forum shopping which was incorporated in the complaint and signed by Atty. Aguinaldo reads: I, Mario A. Aguinaldo of legal age, Filipino, with office address at Suite 210 Gedisco Centre, 1564 A. Mabini cor. P. Gil Sts., Ermita, Manila, after having sworn to in accordance with law hereby deposes and say: THAT —  THAT —   1.I am the Resident Agent and Legal Counsel of the plaintiff in the above entitled case and have caused the preparation of the above complaint; 2.I have read the complaint and that all the allegations contained therein are true and correct based on the records on files; 3.I hereby further certify that I have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency. If I subsequently learned that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any tribunal or agency, I will notify the court, tribunal or agency within five (5) days from such notice/knowledge. TH

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(Sgd.) MARIO A. AGUINALDO Affiant CITY OF MANILA SUBSCRIBED AND SWORN TO before me this 30th day of August, 1999, affiant exhibiting to me his Community Tax Certificate No. 00671047 issued on January 7, 1999 at Manila, Philippines. (Sgd.) Doc. No. 1005;ATTY. HENRY D. ADASA Page No. 198;Notary Public Book No. XXIUntil December 31, 2000 13   Series of 1999.PTR No. 320501 Mla 1/4/99  1/4/99   13 As gleaned from the aforequoted certification, there was no allegation that Atty. Aguinaldo had been authorized to execute the certificate of non-forum shopping by the respondent's Board of Directors; moreover, no such board resolution was appended thereto or incorporated therein. While Atty. Aguinaldo is the resident agent of the respondent in the Philippines, this does not mean that he is authorized to execute the requisite certification against forum shopping. Under Section 127, in relation to Section 128 of the Corporation Code, the authority of the resident agent of a foreign corporation with license to do business in the Philippines is to receive, for and in behalf of the foreign corporation, services and other legal processes in all actions and other legal proceedings against such corporation, thus: SEC. 127.Who 127.Who may be a resident agent . —  A  A resident agent may either be an individual residing in the Philippines or a domestic corporation lawfully transacting business in the Philippines: Provided  Philippines:  Provided , That in the case of an individual, he must be of good moral character and of sound financial standing.

SEC. 128. Resident  Resident agent; service of process. process . —  The  The Securities and Exchange Commission shall require as a condition precedent to the issuance of the license to transact business in the Philippines by any foreign corporation that such corporation file with the Securities and Exchange Commission a written power of attorney designating some persons who must be a resident of the Philippines, on whom any summons and other legal processes may be served in all actions or other legal proceedings against such corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if served upon the duly-authorized officers of the foreign corporation as its home office.  office.  14  14  Under the law, Atty. Aguinaldo was not specifically authorized to execute a certificate of non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. This is because while a resident agent may be aware of actions filed against his principal (a foreign corporation doing business in the Philippines), such resident may not be aware of actions initiated by its principal, whether in the Philippines against a domestic corporation or  private individual, or in the country where such corporation was organized and registered, against a Philippine registered corporation or a Filipino citizen. cDSAEI cDSAEI   The respondent knew that its counsel, Atty. Aguinaldo, as its resident agent, was not specifically authorized to execute the said certification. It attempted to show its compliance with the rule subsequent to the filing of its complaint by submitting, on March 6, 2000, a resolution purporting to have been approved by its Board of Directors during a teleconference held on June 25, 1999, allegedly with Atty. Aguinaldo and Suk Kyoo Kim in attendance. However, such attempt of the respondent casts veritable doubt not only on its claim that such a teleconference was held, but also on the approval by the Board of Directors of the resolution authorizing Atty. Aguinaldo to execute the certificate of nonforum shopping.

In its April 12, 2000 Order, the RTC took judicial notice that because of the onset of modern technology, persons in one location may confer with other persons in other places, and, based on the said premise, concluded that Suk Kyoo Kim and Atty. Aguinaldo had a teleconference with the respondent's Board of Directors in South Korea on June 25, 1999. The CA, likewise, gave credence to the respondent's claim that such a teleconference took  place, as contained in the affidavit of Suk Kyoo Kim, as well as Atty. Aguinald o's certification. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the  jurisdiction of the court. The principal guide in dete rmining what facts may be assumed to TH

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 be judicially known is that of notoriety. Hence, it can be s aid that judicial no tice is limited to facts evidenced by public records and facts of general notoriety.  notoriety.  15 15  Moreover, a  judicially noticed fact must be one not subject to a rea sonable dispute in that it is eith er: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably  be questionable.  questionable.  16  16  Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may  be matters which are generally ac cepted by mankind as true and are cap able of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as  being matters of common knowledge. But knowledge.  But a court cannot take judicia l notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court

2.Follow-up to earlier meetings can be done with relative ease and little expense. 3.Socializing is minimal compared to an FTF meeting; therefore, meetings are shorter and more oriented to the primary purpose of the meeting. 4.Some routine meetings are more effective since one can audio-conference from any location equipped with a telephone. 5.Communication between the home office and field staffs is maximized. 6.Severe climate and/or unreliable transportation may necessitate teleconferencing. 7.Participants are generally better prepared than for FTF meetings. 8.It is particularly satisfactory for simple problem-solving, information exchange, and

17  has no constructive knowledge. knowledge . 17 

 procedural tasks.

In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. Teleconferencing is interactive group communication (three or more people in two or more locations) through an electronic medium. In general terms, teleconferencing can bring people together under 18 This type of group one roof even though they are separated by hundreds of miles.   18  communication may be used in a number of ways, and have three basic types: (1) video conferencing —  conferencing  —  television-like  television-like communication augmented with sound; (2) computer conferencing —  conferencing  —  printed  printed communication through keyboard terminals, and (3) audioconferencing-verbal communication via the telephone with optional capacity for telewriting 19   or telecopying.  telecopying. 19

9.Group members participate more equally in well-moderated teleconferences than an FTF 21  meeting.  21  meeting.

A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was first introduced in the 1960's with American Telephone and Telegraph's Picturephone. At that time, however, no demand existed for the new technology. Travel costs were reasonable and consumers were unwilling to pay the monthly service charge for using the  picturephone, which was regarded as more of a n ovelty than as an actual means for everyday communication.  communication. 20  20 In time, people found it advantageous to hold teleconferencing in the course of business and corporate governance, because of the money saved, among other advantages include: 1.People (including outside guest speakers) who wouldn't normally attend a distant FTF meeting can participate.

On the other hand, other private corporations opt not to hold teleconferences because of the following disadvantages: 1.Technical failures with equipment, including connections that aren't made. 2.Unsatisfactory for complex interpersonal communication, such as negotiation or  bargaining. 3.Impersonal, less easy to create an atmosphere of group rapport. 4.Lack of participant familiarity with the equipment, the medium itself, and meeting skills. 5.Acoustical problems within the teleconferencing rooms. 6.Difficulty in determining participant speaking order; frequently one person monopolizes the meeting. 7.Greater participant preparation time needed. HCDAac HCDAac   TH

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8.Informal, one-to-one, social interaction not possible.  possible.  22  22  Indeed, teleconferencing can only facilitate the linking of people; it does not alter the complexity of group communication. Although it may be easier to communicate via  via  teleconferencing, it may also be easier to miscommunicate. Teleconferencing cannot satisfy 23   the individual needs of every type of meeting.  meeting.  23 In the Philippines, teleconferencing and videoconferencing of members of board of directors of private corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission issued SEC Memorandum Circular No. 15, on  November 30, 2001, providing the guidelin es to be complied with related to such conferences.  24 conferences. 24  Thus, the Court agrees with the RTC that persons in the Philippines may have a teleconference with a group of persons in South Korea relating to business transactions or corporate governance. Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in a teleconference along witheven the respondent's Board of the Directors, is not that one was conducted; if there had been one, Court isthe notCourt inclined to convinced believe that a board resolution was duly passed specifically authorizing Atty. Aguinaldo to file the complaint and execute the required certification against forum shopping. The records show that the petitioner filed a motion to dismiss the complaint on the ground that the respondent failed to comply with Section 5, Rule 7 of the Rules of Court. The respondent opposed the motion on December 1, 1999, on its contention that Atty. Aguinaldo, its resident agent, was duly authorized to sue in its behalf. The respondent, however, failed to establish its claim that Atty. Aguinaldo was its resident agent in the Philippines. Even the identification card  card 25  25 of Atty. Aguinaldo which the respondent appended to its pleading merely showed that he is the company lawyer of the respondent's Manila Regional Office. The respondent, through Atty. Aguinaldo, announced the holding of the teleconference only during the hearing of January 28, 2000; Atty. Aguinaldo then prayed for ten days, or until February 8, 2000, within which to submit the board resolution purportedly authorizing him to file the complaint and execute the required certification against forum shopping. The court granted the motion.  motion.  26  26 The respondent, however, failed to comply, and instead  prayed for 15 more days to submit the said resolut ion, contending that it was with its main 27 dated February 11, 2000. office in Korea. The court granted the motion per its Order  27  The respondent again prayed for an extension within which to submit the said resolution, until March 6, 2000.  2000. 28  28 It was on the said date that the respondent submitted an affidavit of its general manager Suk Kyoo Kim, stating, inter alia, alia, that he and Atty. Aguinaldo attended

the said teleconference on June 25, 1999, where the Board of Directors supposedly approved the following resolution: RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers appointed and authorized with whatever legalThey actionare necessary to effectare thehereby collection of the unpaid account to of take Expert Travel & Tours. hereby specifically authorized to prosecute, litigate, defend, sign and execute any document or paper necessary to the filing and prosecution of said claim in Court, attend the Pre-trial Proceedings and enter into a compromise agreement relative to the above-mentioned claim. 29 29   But then, in the same affidavit, Suk Kyoo Kim declared that the respondent "do[es] not keep a written copy of the aforesaid Resolution" because no records of board resolutions approved during teleconferences were kept. This belied the respondent's earlier allegation in its February 10, 2000 motion for extension of time to submit the questioned resolution that it was in the custody of its main office in Korea. The respondent gave the trial court the impression that it needed time to secure a copy of the resolution kept in Korea, only to allege later (via ( via the  the affidavit of Suk Kyoo Kim) that it had no such written copy. Moreover, Suk Kyoo Kim stated in his affidavit that the resolution was embodied in the Secretary's/Resident Agent's Certificate signed by Atty. Aguinaldo. However, no such resolution was appended to the said certificate. The respondent's allegation that its board of directors conducted a teleconference on June 25, 1999 and approved the said resolution (with Atty. Aguinaldo in attendance) is incredible, given the additional fact that no such allegation was made in the complaint. If the resolution had indeed been approved on June 25, 1999, long before the complaint was filed, the respondent should have incorporated it in its complaint, or at least appended a copy thereof. The respondent failed to do so. It was only on January 28, 2000 that the respondent claimed, for the first time, that there was such a meeting of the Board of Directors held on June 25, 1999; it even represented to the Court that a copy of its resolution was with its main office in Korea, only to allege later that no written copy existed. It was only on March 6, 2000 that the respondent alleged, for the first time, that the meeting of the Board of Directors where the resolution was approved was held via teleconference.

Worse still, it appears that as early as January 10, 1999, 1999 , Atty. Aguinaldo had signed a Secretary's/Resident Agent's Certificate alleging that the board of directors held a teleconference on June 25, 1999. 1999 . No such certificate was appended to the complaint, which was filed on September 6, 1999. More importantly, the respondent did not explain why the TH

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said certificate was signed by Atty. Aguinaldo as early as January 9, 1999, and yet was notarized one year later (on January 10, 2000); it also did not explain its failure to append the said certificate to the complaint, as well as to its Compliance dated March 6, 2000. It was only on January 26, 2001 when the respondent filed its comment in the CA that it submitted the Secretary's/Resident Agent's Certificate  Certificate  30  30 dated January 10, 2000. The Court is, thus, more inclined to believe that the alleged teleconference on June 25, 1999 never took place, and that the resolution allegedly approved by the respondent's Board of Directors during the said teleconference was a mere concoction purposefully foisted on the RTC, the CA and this Court, to avert the dismissal of its complaint against the petitioner. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 61000 is REVERSED and SET ASIDE. The Regional Trial Court of Manila is hereby ORDERED to dismiss, without prejudice, the complaint of the respondent. DCAEcS  DCAEcS  SO ORDERED.  Puno, Austria-Martinez   and and Chico-Nazario, JJ., concur. JJ., concur. Tinga, J., is J., is out of the country.

TH

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