BENGUET MINING CO., Petitioner, vs. MARIANO PINEDA in his capacity as Securities and Exchange Commissioner, Respondent.

MCONSOLIDATED MINES, INC., Intervenor. FACTS: The Petitioner, the BENGUET, was organized on June 24,1903, as a sociedad anonima regulated by the Spanish Code of Commerce of 1886, then in force in the Philippines. It was organized for a term of fifty (50) years. In 1906, Act 1459 (Corporation Law) was enacted which established the American type of juridical entities known as corporation. The purpose of the commission in repealing this part of the Code of Commerce was to compel commercial entities thereafter organized to incorporate under the Corporation Law, unless they should prefer to adopt some form or other of the partnership. As the expiration of its original 50 year term of existence approached, the Board of Directors of BENGUET adopted a resolution to extend its life for another 50 years from July 3, 1946 and submitted it for registration to the Respondent Securities and Exchange Commissioner. This was denied by the SEC for being contrary to law. The matter was dropped, allegedly because the stockholders of BENGUET did not approve of the Directors action. In pursuance of a resolution, BENGUET submitted to the SEC, for alternative registration, two documents: (1) Certification as to the Modification of (the articles of association of) the BENGUET, extending the term of its existence to another fifty years; (2) the articles of incorporation, covering its reformation or reorganization as a corporation in accordance with section 75 of the Philippine Corporation Law.

anonima, since the latter cannot be dealt with after that period; ywherefore its prolongation or cessation is a matter directly involving the companys relations to the public at large. The court also ruled that it cannot assent to the thesis of BENGUET that its period of corporate existence has relation to its organization. The term organization relates merely to the systematization and orderly arrangement of the internal and managerial affairs and organs of BENGUET, and has nothing to do with the prorogation of its corporate life.

2.

NO. The court ruled that by continuing to do business as sociedad anonima, BENGUET in fact rejected the alternative to reform as a corporation under Act No. 1459.

It will be noted from the text of section 75 (quoted earlier in this opinion) that no special act or manifestation is required by the law from the existing sociedades anonimas that prefer to remain and continue as such. It is when they choose to reform and organize under the Corporation Law that they must, in the words of the section, transfer all corporate interests to the new corporation. Hence if they do not so transfer, the sociedades anonimas affected are to be understood to have elected the alternative to continue business as such corporation (sociedad anonima). As Respondent Commissioners order, now under appeal, has stated A sociedad anonima could not claim the benefit of both, but must have to choose one and discard the other. If it elected to become a corporation it could not continue as a sociedad anonima; and if it choose to remain as a sociedad anonima, it could not become a corporation. Moreover, such belated election, if permitted, would enable sociedades anonimas to reap the full advantage of both types of organization.

BENGUET claims that existing sociedades anonimas would continue to be governed by the law in force before Act 1459. Also, BENGUET contends that the period of corporate life relates to its organization and the rights of its members inter se, and not to its relations to the public or public officials.

ISSUES: 1. 2. WON BENGUET may extend the period of its existence as sociedad anonima. WON it may apply for its new existence as a corporation under the Philippine Corporate Law as an alternative.

HELD:

1.

NO. The SC ruled that there was no agreement yet to extend the period of Benguets corporate existence (beyond the original 50 years) when the Corporation Law was adopted in 1906, neither BENGUET nor its members had any actual or vested right to such extension at that time.

The term of existence of association (partnership or sociedad anonima) is coterminous with their possession of an independent legal personality, distinct from that of their component members. When the period expires, the sociedad anonima loses the power to deal and enter into further legal relations with other persons; raryit is no longer possible for it to acquire new rights or incur new obligations, have only as may be required by the process of liquidating and winding up its affairs. By the same token, its officers and agents can no longer represent it after the expiration of the life term prescribed, save for settling its business. Necessarily, therefore, third persons or strangers have an interest in knowing the duration of the juridical personality of the sociedad

FRED M. HARDEN, J.D. HIGHSMITH, and JOHN C. HART, in their own behalf and in that all other stockholders of the Balatoc Mining Company, etc., plaintiffs-appellants, vs. BENGUET CONSOLIDATED MINING COMPANY, BALATOC MINING COMPANY, H. E. RENZ, JOHN W. JAUSSERMANN, and A. W. BEAM, defendants-appellees. FACTS: The Benguet Consolidated Mining Co. was organized in June, 1903, as a sociedad anonima in conformity with the provisions of Spanish law; while the Balatoc Mining Co. was organized in December 1925, as a corporation, in conformity with the provisions of the Corporation Law (Act No. 1459). When the Balatoc Mining Co. was first organized the properties acquired by it were largely undeveloped; and the original stockholders were unable to supply the means needed for profitable operation. For this reason, committee approached A. W. Beam, then president and general manager of the Benguet Company, to secure the capital necessary to the development of the Balatoc property. While the Benguet Company was pouring its million and a half into the Balatoc property, the arrangements made between the two companies appear to have been viewed by the plaintiff Harden with complacency, he being the owner of many thousands of the shares of the Balatoc Company. But as soon as the success of the development had become apparent, he began this litigation in which he has been joined by two others of the eighty shareholders of the Balatoc Company, asserting the provision bellow: "... it shall be unlawful for any member of a corporation engaged in agriculture or mining and for any corporation organized for any purpose except irrigation to be in any wise interested in any other corporation engaged in agriculture or in mining." ISSUE: WON plaintiffs can maintain an action based upon the violation of law supposedly committed by the Benguet Company in this case.

Spanish, is the same word that is used in that language to designate other forms of partnership, and in its organization it is constructed along the same general lines as the ordinary partnership. It is therefore not surprising that for purposes of loose translation the expression sociedad anonima has not infrequently the other hand, the affinity of this entity to the American corporation has not escaped notice, and the expression sociedad anonima is now generally translated by the word corporation. But when the word corporation is used in the sense of sociedad anonima and close discrimination is necessary, it should be associated with the Spanish expression sociedad anonima either in a parenthesis or connected by the word "or". This latter device was adopted in sections 75 and 191 of the Corporation Law. The court ruled that the plaintiffs have no right of action against the Benguet Company for the infraction of law supposed to have been committed. It forego any discussion of the further question whether a sociedad anonima created under Spanish law, such as the Benguet Company, is a corporation within the meaning of the prohibitory provision already so many times mentioned. That important question should, in courts opinion, be left until it is raised in an action brought by the Government. The defendant Benguet Company has committed no civil wrong against the plaintiffs, and if a public wrong has been committed, the directors of the Balatoc Company, and the plaintiff Harden himself, were the active inducers of the commission of that wrong. The contract, supposing it to have been unlawful in fact, has been performed on both sides, by the building of the Balatoc plant by the Benguet Company and the delivery to the latter of the certificate of 600,000 shares of the Balatoc Company. There is no possibility of really undoing what has been done. Nobody would suggest the demolition of the mill. The Balatoc Company is secure in the possession of that improvement, and talk about putting the parties in status quo ante by restoring the consideration with interest, while the Balatoc Company remains in possession of what it obtained by the use of that money, does not quite meet the case. Also, to mulct the Benguet Company in many millions of dollars in favor of individuals who have not the slightest equitable right to that money in a proposition to which no court can give a ready assent. Moreover, the court quoted that a corporation is limited by the law or by its charter has until the State acts every power and capacity that any other individual capable of acquiring lands, possesses. The corporation may exercise every act of ownership over such lands; it may sue in ejectment or unlawful detainer and it may demand specific performance. It has an absolute title against all the world except the State after a proper proceeding is begun in a court of law. ... The Attorney General is the exclusive officer in whom is confided the right to initiate proceedings for escheat or attack the right of a corporation to hold land.

HELD: in favor of defendants. The provision from section 75 of the Act Congress of July 1, 1902 (Philippine Bill), generally prohibiting corporations engaged in mining and members of such from being interested in any other corporation engaged in mining, was amended by section 7 of Act No. 3518 of the Philippine Legislature, approved by Congress March 1, 1929. The change in the law effected by this amendment was in the direction of liberalization. Thus, the inhibition contained in the original provision against members of a corporation engaged in agriculture or mining from being interested in other corporations engaged in agriculture or in mining was so modified as merely to prohibit any such member from holding more than fifteen per centum of the outstanding capital stock of another such corporation. Moreover, the explicit prohibition against the holding by any corporation (except for irrigation) of an interest in any other corporation engaged in agriculture or in mining was so modified as to limit the restriction to corporations organized for the purpose of engaging in agriculture or in mining. Moreover, for the purposes general description, the court said that the sociedad anonima is something very much like the English joint stock company, with features resembling those of both the partnership is shown in the fact that sociedad, the generic component of its name in

SPS. NESTOR AND MA. NONA BORROMEO, Petitioners, vs. HONORABLE COURT OF APPEALS and EQUITABLE SAVINGS BANK , Respondents.: Respondent is a domestic savings bank corporation and at the time the dispute began, it was a subsidiary of Equitable PCI Bank (EPCIB), a domestic universal banking corporation. After the merger of EPCIB and Banco De Oro (BDO), they have adopted the corporate name "Banco De Oro. Meanwhile, petitioners were client-depositors of EPCIB for more than 12 years. Petitioners alleged that EPCIB offered a loan to the petitioners under its "Own-a-Home Loan Program." Petitioners applied for a loan of P4,000,000.00 and to secure the payment of the loan, petitioners executed an REM over their land, and the proposed house that was to be built thereon. Petitioners also asserted that even if the loan documents were signed in blank, it was understood that they executed the REM in favor of EPCIB. On the other hand, respondent released a total amount of P3,600,000.00 in four installments, while the balance of P400,000.00 was not drawn by petitioners. Petitioners started to pay their monthly amortizations. They made repeated verbal requests to EPCIB to furnish them their copies of the loan documents. They sent the president of EPCIB a letter which reiterated their request for copies of the loan documents. In addition, petitioners stated that the interest rate of 14% to 17% that was charged against them was more than the interest rate of 11% or 11.5% that the parties agreed upon. They further claimed that they purposely did not draw the remaining balance of the loan in the amount of P400,000.00 and stopped paying their loan amortizations to protest EPCIB's continued failure to provide them copies of the loan documents and its imposition of an interest rate higher than that agreed upon. From the time petitioners began paying their monthly amortizations on 21 April 2001 until the time they stopped, petitioners made total payments of approximately P500,000.00. On the other hand, EPCIB clarified that since petitioners' loan had not been fully released, the original documents were not yet sent to them. Petitioners subsequently received copies of the loan documents which they had earlier signed in blank. According to petitioners, they were surprised to find out that the Loan Agreement and REM designated respondent ESB as lender and mortgagor, instead of EPCIB with whom they allegedly entered into the agreement. However, in contrast to the Loan Agreement and the REM, the four Promissory Notes designated EPCIB as the lender. When the petitioners failed to pay for the loan in full by 30 September 2003, respondent sought to extra-judicially foreclose the REM. This prompted the petitioners to file with the RTC a Complaint for Injunction, Annulment of Mortgage with Damages and with Prayer for Temporary Restraining Order and Preliminary and Mandatory Injunction against EPCIB and respondent. Petitioners sought to prevent the Extrajudicial Sale from taking place. The RTC ruled in favor of the petitioners. On appeal, the CA reversed the RTC decision in favor of the respondents. In reversing the decision, the Court of Appeals decreed that pending the RTC's determination of the validity of the REM, its validity should be presumed. It further ruled that the intended foreclosure of the mortgage by respondent was a proper exercise of its right after petitioners admittedly stopped paying their loan amortizations. Moreover, it held that the foreclosure of the REM would not result in any grave and irreparable damage to the petitioners since petitioners, as mortgagors, may redeem the subject property or avail themselves of the remedy of claiming damages or nullifying the sale. ISSUE: Whether or not a writ of preliminary injunction should be issued to enjoin the foreclosure and public auction of petitioner's property during the proceedings and pending determination of the main cause of action for annulment of the REM on said property.

HELD: SC ruled in favor of the petitioners. In this case, petitioners' rights to their property is restricted by the REM they executed over it. Upon their default on the mortgage debt, the right to foreclose the property would be vested upon the creditor-mortgagee. Nevertheless, the right of foreclosure cannot be exercised against the petitioners by any person other than the creditor-mortgagee or its assigns. Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person. An extrajudicial foreclosure instituted by a third party to the Loan Agreement and the REM would, therefore, be a violation of petitioners' rights over their property. It is clear that under Article 1311 of the Civil Code, contracts take effect only between the parties who execute them. Where there is no privity of contract, there is likewise no obligation or liability to speak about. The civil law principle of relativity of contracts provides that contracts can only bind the parties who entered into it, and it cannot favor or prejudice a third person, even if he is aware of such contract and has acted with knowledge thereof. Since a contract may be violated only by the parties thereto as against each other, a party who has not taken part in it cannot sue for performance, unless he shows that he has a real interest affected thereby. In the instant case, petitioners assert that their creditor-mortgagee is EPCIB and not respondent. While ESB claims that petitioners have had transactions with it, particularly the five check payments made in the name of ESB, it fails to categorically state that ESB and not EPCIB is the real creditor-mortgagor in this loan and mortgage transaction. This Court finds the position taken by the petitioners to be more credible. The four Promissory Notes designate EPCIB as the "lender." In a letter dated 19 December 2002, addressed to Home Guaranty Corporation, EPCIB Vice President Gary Vargas even specified petitioners' loan as one of its housing loans for which it sought insurance coverage. Records also show that petitioners repeatedly dealt with EPCIB. When the petitioners complained of not receiving the loan documents and the allegedly excessive interest charges, they addressed their letter dated 3 August 2003 to the president of EPCIB. The response, which explained the loan transactions in detail in a letter dated 27 August 2003, was written by Gary Vargas, EPCIB Vice President. Of almost three years' amortizations, the checks were issued by petitioners in the name of EPCIB, except only for five checks which were issued in respondent's name. Respondent, although a wholly-owned subsidiary of EPCIB, has an independent and separate juridical personality from its parent company. The fact that a corporation owns all of the stocks of another corporation, taken alone, is not sufficient to justify their being treated as one entity. If used to perform legitimate functions, a subsidiary's separate existence shall be respected, and the liability of the parent corporation, as well as the subsidiary, shall be confined to those arising from their respective businesses. A corporation has a separate personality distinct from its stockholders and other corporations to which it may be conducted. Any claim or suit of the parent corporation cannot be pursued by the subsidiary based solely on the reason that the former owns the majority or even the entire stock of the latter.

G.R. No. 169914

April 7, 2009

A) THE DECISION MISTAKENLY CHARACTERIZED THE PROCESS OF UNSOLICITED PROPOSALS UNDER SECTION 4-A OF THE BOT LAW AS A BIDDING. AEDC, AS THE ORIGINAL PROPONENT, HAS RIGHTS UNDER THE BOT LAW, WHICH MUST BE RESPECTED AND RECOGNIZED. B) THE DECISION MISTAKENLY CONCLUDES THAT EVEN IF THE CHALLENGE WAS SUBSEQUENTLY DECLARED VOID, THE ORIGINAL PROPONENT IS LEFT WITHOUT ANY RIGHTS OR REMEDY SIMPLY BECAUSE THE DISQUALIFIED CHALLENGER HAS ALREADY PROCEEDED TO IMPLEMENT THE PROJECT. II.

ASIA'S EMERGING DRAGON CORPORATION, petitioner, vs. DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO R. MENDOZA and MANILA INTERNATIONAL AIRPORT AUTHORITY, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 174166 April 7, 2009

REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS and MANILA INTERNATIONAL AIRPORT AUTHORITY, petitioners, vs. HON. COURT OF APPEALS and SALACNIB BATERINA, Respondents. RESOLUTION CHICO-NAZARIO, J.: In the Decision dated 18 April 2008, We dismissed the Petitions in G.R. No. 169914 and G.R. No. 174166 of Asias Emerging Dragon Corporation (AEDC) and Salacnib F. Baterina (Baterina), respectively. The fallo of the Decision reads: WHEREFORE, in view of the foregoing:
1

GIVEN THE DECLARATION OF THIS HONORABLE COURT THAT THE [PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC. (PIATCO)] CONTRACTS ARE VOID AB INITIO, AT THE VERY LEAST, THE [NAIA IPT III] PROJECT SHOULD BE COVERED ANEW BY SECTION 10.11, RULE 10 OF THE [IMPLEMENTING RULES AND REGULATIONS (IRR)] OF THE BOT LAW, WHEREIN INVITATIONS FOR COMPARATIVE PROPOSALS SHALL AGAIN BE MADE AND THE RIGHT OF AEDC AS THE ORIGINAL PROPONENT TO MATCH THE BEST OFFER SHOULD BE REINSTATED. III. WITH THE NULLIFICATION OF THE PIATCO CONTRACTS, GOVERNMENT SHOULD NOT HAVE INITIATED EXPROPRIATION PROCEEDINGS AGAINST THE [NAIA IPT III] FACILITIES. BUT HAVING DONE SO, THE GOVERNMENT MAY PROCEED WITH THE EXPROPRIATION AND THEN USE THE FAIR AND JUST VALUATION, AS MAY BE DETERMINED IN THE EXPROPRIATION PROCEEDINGS, AS THE FLOOR PRICE FOR THE NEW INVITATION FOR COMPARATIVE PROPOSALS FOR THE [NAIA IPT III] PROJECT. IV.

a. The Petition in G.R. No. 169914 is hereby DISMISSED for lack of merit; and b. The Petition in G.R. No. 174166 is hereby likewise DISMISSED for being moot and academic. No costs. Presently before us are the separate Motions for Reconsideration of the aforementioned Decision filed by AEDC and Baterina. The Motion for Reconsideration of AEDC (G.R. No. 169914) AEDC invokes the following grounds for its Motion for Reconsideration: I. AEDC, BEING THE ORIGINAL PROPONENT OF THE [NINOY AQUINO INTERNATIONAL AIRPORT-INTERNATIONAL PASSENGER TERMINAL III (NAIA IPT III)] PROJECT, THOUGH NOT ENTITLED TO ANY UNDUE PREFERENCE, HAS VESTED RIGHTS, BOTH LEGAL (UNDER THE BOT LAW) AND CONTRACTUAL, WHICH MUST BE RESPECTED AND/OR RECOGNIZED. IN THE EVENT OF A NEW INVITATION FOR COMPARATIVE PROPOSALS, LAW AND EQUITY DICTATES THAT GOVERNMENT SHOULD RECOGNIZE AND/OR REINSTATE AEDCS RIGHT TO MATCH THE LOWEST PRICE OFFER/PROPOSAL FOR THE [NAIA IPT III] PROJECT WITHIN THE PERIOD ALLOWED UNDER THE BOT LAW. V. THERE IS NO FACTUAL BASIS TO CONCLUDE THAT AEDC WAS NOT FINANCIALLY QUALIFIED TO UNDERTAKE THE [NAIA IPT III] PROJECT BECAUSE THIS MATTER WAS NOT PUT IN ISSUE BY THE PARTIES. A DECLARATION THAT AEDC WAS NOT QUALIFIED WILL JEOPARDIZE THE REPUBLICS POSITION IN THE INTERNATIONAL ARBITRATION CASES BECAUSE THE GOVERNMENT WILL BE VIEWED AS HAVING LET PIATCO TO BELIEVE THAT PIATCOS CONTRACTING PROCESS WAS LEGAL AND THAT PIATCO COMMITTED NO VIOLATION. CONSEQUENTLY, PIATCO MAY BE ENTITLED NOT ONLY TO COMPENSATION BUT ALSO TO DAMAGES. VI. [NAIA IPT III] WAS BUILT BY PIATCO WITH SIGNIFICANT DEVIATION FROM THE BID DOCUMENTS AND DRAFT CONCESSION AGREEMENT. AEDCS TAKING OVER OF [NAIA IPT III] WILL NOT RESULT IN AN AMENDMENT OF ITS PROPOSAL. INSTEAD AEDC WILL

IMPLEMENT OR ENFORCE THE DRAFT CONCESSION AGREEMENT AND THE TECHNICAL SPECIFICATIONS APPROVED BY THE NEDA, ICC AND OTHER GOVERNMENT AGENCIES, THE MEMORANDUM OF UNDERSTANDING AND TERMS OF REFERENCE OR BID DOCUMENTS. VII. THIS HONORABLE COURT SHOULD NOT HAVE PASSED UPON EITHER THE AUTHENTICITY OR IMPORT OF THE MEMORANDUM OF UNDERSTANDING (MOU") BECAUSE IT WAS NOT A LITIGATED ISSUE. GOVERNMENT NEVER DISPUTED THE CAPACITY OF THE MOU TO CREATE RIGHTS AND OBLIGATIONS. TO CONCLUDE THAT THE MOU WAS VOID IS TO NECESSARILY ALSO CONCLUDE THAT THERE WAS NO CONTRACT TO OPEN UP TO CHALLENGE, AND THAT PIATCO WAS WRONGFULLY LED TO MOUNT A CHALLENGE THAT COULD NOT POSSIBLY BE VALID. BASED ON THIS PREMISE, GOVERNMENT IS ENTIRELY TO BLAME FOR THE [NAIA IPT III] DISASTER AND WILL ENTITLE PIATCO TO DAMAGES. VIII. AEDC RELIED ON AND ACTED DETRIMENTALLY IN RELYING ON THE MOU. IT IS A DANGEROUS JUDICIAL POLICY TO PERMIT GOVERNMENT TO UNILATERALLY BREACH CONTRACTUAL OBLIGATIONS WITHOUT CONSEQUENCE, ESPECIALLY WHEN THE OTHER PARTY IS NOT IN BREACH. IX. THE PETITION IS NOT BARRED BY THE DISMISSAL OF THE PASIG CASE. WHETHER THE DISMISSAL CONSTITUTES RES JUDICATA OR PRECLUDES AEDCS CLAIM IS NOT AMONG THE ISSUES RAISED AND LITIGATED BY THE PARTIES IN THIS CASE. HENCE, THE STATEMENT THAT THE INSTANT PETITION IS NOT BARRED BY RES JUDICATA SHOULD NOT HAVE BEEN MADE. TO UPHOLD THE DISMISSAL OF THE PASIG CASE AS A VALID JUDGMENT WOULD BE TO PUT GOVERNMENTS ARBITRATION CASES IN PERIL BECAUSE IT WOULD AFFIRM THAT GOVERNMENT, INCLUDING THE SOLICITOR GENERAL, AND NOT JUST MIAA OR DOTC, UPHELD THE VALIDITY OF THE PIATCO CONTRACTS, SUCH WOULD PLACE GOVERNMENT IN ESTOPPEL TO DENY CLAIMS FOR DAMAGES, IN ADDITION TO COMPENSATION, BY PIATCO. X. THE FUNDAMENTAL PREMISE FOR THE COMPROMISE AGREEEMENT (I.E. THE AMICABLE SETTLEMENT OF AEDCS AND PUBLIC RESPONDENTS CLAIMS) HAS CEASED TO EXIST IN VIEW OF PUBLIC RESPONDENTS ADOPTION OF AEDCS LEGAL POSITION THAT THE AWARD OF THE [NAIA IPT III] PROJECT TO PIATCO WAS ILLEGAL. THEREFORE, BOTH AEDC AND PUBLIC RESPONDENTS SHOULD BE RELEASED FROM THEIR MUTUAL OBLIGATIONS UNDER THE COMPROMISE AGREEMENT. XI. THE PETITION FOR MANDAMUS WAS TIMELY FILED WITHIN THE PERIOD PROVIDED UNDER THE RULES OF COURT.2

At the end of its Motion, AEDC prays to this Court to reconsider the latters Decision of 18 April 2008, insofar as the formers Petition in G.R. No. 169914 is concerned, and render, in its stead, judgment 1. Directing Public Respondents, their officers, agents, successors, representatives or persons or entities acting on their behalf to recognize AEDCs rights as an Original Proponent of an unsolicited project as set forth above; 2. Directing Public Respondents to issue the appropriate Notice of Award of the Project to AEDC, sign the draft concession agreement with AEDC and implement the same; 3. Directing Public Respondents, their officers, agents, successors, representatives or persons or entities acting on their behalf to recognize AEDCs right to conduct an invasive inspection and valuation of the structures currently built as [NAIA IPT III] for an effective valuation and determination of the work to be conducted thereon; and 4. Permanently enjoining Public Respondents, their officers, agents, successors, representatives or persons or entities acting on their behalf, from negotiating, rebidding, awarding or otherwise entering into any concession contract with PIATCO and other third parties, except as otherwise stated above, within the context of permitting AEDC to complete the construction and operation of the [NAIA IPT III] Project. 5. In the alternative, directing Public Respondents to effect a new invitation for comparative proposals for the [NAIA IPT III] Project in accordance with Rule 10 of the IRR of the BOT Law, as soon as practicable and in the process recognize and/or reinstate the right of AEDC to match the best offer. Other reliefs, just and equitable in the premises, are likewise prayed for.3 AEDC persistently asserts its right to be awarded the NAIA IPT III Project as the original proponent thereof, following the declaration of nullity of the award of the said project to PIATCO in Agan, Jr. v. Philippine International Air Terminals Co., Inc.4 Extensive as its Motion for Reconsideration may seem, it is mostly a reiteration of the arguments AEDC already raised in its Petition for Mandamus and Prohibition (with Application for Temporary Restraining Order), considered by this Court when it rendered its Decision dated 18 April 2008 dismissing said Petition. We are not persuaded, whether by the previous Petition or the present Motion, to grant AEDC the writs of mandamus and prohibition it prays for in the absence of a clear right to the same. The declaration of nullity of the award of the NAIA IPT III Project to PIATCO in Agan does not automatically entitle AEDC to the award of the said project on the mere basis that it was the original proponent thereof. The rights of the original proponent of an unsolicited proposal are rooted in Section 4-A of Republic Act No. 6957,5 more commonly known as the Build-Operate-Transfer (BOT) Law, as amended by Republic Act No. 7718, which reads: SEC. 4-A. Unsolicited proposals. Unsolicited proposals for projects may be accepted by any government agency or local government unit on a negotiated basis: Provided, That, all the following conditions are met: (1) such projects involve a new concept or technology and/or are not part of the list of priority projects, (2) no direct government guarantee, subsidy or equity is

required, and (3) the government agency or local government unit has invited by publication, for three (3) consecutive weeks, in a newspaper of general circulation, comparative or competitive proposals and no other proposal is received for a period of sixty (60) working days: Provided, further, That in the event another proponent submits a lower price proposal, the original proponent shall have the right to match the price within thirty (30) working days. In his dissent to this Resolution, Mr. Justice Renato C. Corona submits that the original proponent of an unsolicited proposal for a BOT project, under Section 4-A of Republic Act No. 6957, as amended, is entitled to the award of the project in at least three circumstances: (1) no competitive bid was submitted; (2) there was a lower bid by a qualified bidder but the original proponent matched it; and (3) there was a lower bid but it was made by a person/entity not qualified to bid, in which case, it is as if no competitive bid had been made. Both Justice Corona and Mr. Justice Presbiterio J. Velasco, Jr., in their dissenting opinions, conclude that AEDC is entitled to the award of the NAIA IPT III project as the original proponent thereof because the third circumstance is extant in this case. We can only accept in part the afore-mentioned enumeration of the circumstances when an original proponent is entitled to the award of the project under Section 4-A of Republic Act No. 6957, as amended. In the 18 April 2008 Decision, we have already exhaustively scrutinized Section 4-A of the BOT Law, as amended, in relation to its IRR,6 and in consideration of the intent of the legislators who crafted the BOT Law. We find no reason to disturb our conclusion therein that: The special rights or privileges of an original proponent thus come into play only when there are other proposals submitted during the public bidding of the infrastructure project. As can be gleaned from the plain language of the statutes and the IRR, the original proponent has: (1) the right to match the lowest or most advantageous proposal within 30 working days from notice thereof, and (2) in the event that the original proponent is able to match the lowest or most advantageous proposal submitted, then it has the right to be awarded the project. The second right or privilege is contingent upon the actual exercise by the original proponent of the first right or privilege. Before the project could be awarded to the original proponent, he must have been able to match the lowest or most advantageous proposal within the prescribed period. Hence, when the original proponent is able to timely match the lowest or most advantageous proposal, with all things being equal, it shall enjoy preference in the awarding of the infrastructure project.7 It is without question that in a situation where there is no other competitive bid submitted for the BOT project that the project would be awarded to the original proponent thereof. However, when there are competitive bids submitted, the original proponent must be able to match the most advantageous or lowest bid; only when it is able to do so, will the original proponent enjoy the preferential right to the award of the project over the other bidder. These are the general circumstances covered by Section 4-A of Republic Act No. 6957, as amended. We cannot accede to include in such enumeration the situation in this case and categorically declare that the right of AEDC to the NAIA III Project is ensured and protected by Section 4-A of Republic Act No. 6957, as amended. What had happened in the proposal, bidding, and awarding process of the NAIA IPT III Project is indisputably unique and convoluted. We cannot subscribe to disposing of the controversy as regards the NAIA IPT III Project with a generalized rule, i.e., there was a lower bid but it was made by a person/entity not qualified to bid, in which case, it is as if no competitive bid had been made. As we said in the Decision of 18 April 2008, it would be a simplistic approach to what is a complex problem. In the instant case, AEDC may be the original proponent of the NAIA IPT III Project; however, the Pre-Qualification Bids and Awards Committee (PBAC) also found the Peoples Air Cargo & Warehousing Co., Inc. Consortium (Paircargo), the predecessor of PIATCO, to be a qualified bidder for the project. Upon consideration of the bid of Paircargo/PIATCO, PBAC found the

same to be far more advantageous than the original offer of AEDC. It is already an established fact in Agan that AEDC failed to match the more advantageous proposal submitted by PIATCO by the time the 30-day working period expired on 28 November 1996;8 and since it did not exercise its right to match the most advantageous proposal within the prescribed period, it cannot assert its right to be awarded the project. Also, in Agan, the Court disqualified PIATCO from the NAIA IPT III Project for failure to put up the required minimum equity of P2.7 million. The feasibility, however, of the financial proposal of Paircargo/PIATCO was never put in issue. The proposals of AEDC and Paircargo/PIATCO contained the following terms: Both proponents offered to build the NAIA Passenger Terminal III for at least $350 million at no cost to the government and to pay the government: 5% share in gross revenues for the first five years of operation, 7.5% share in gross revenues for the next ten years of operation, and 10% share in gross revenues for the last ten years of operation, in accordance with the Bid Documents. However, in addition to the foregoing, AEDC offered to pay the government a total of P135 million as guaranteed payment for 27 years while Paircargo Consortium offered to pay the government a total of P17.75 billion for the same period. x x x.9 (Emphasis ours.) Clearly, the P17.75 billion guaranteed payment of PIATCO is more advantageous to the government. There is not a single allegation that such proposal is impossible to implement. It is true that AEDC instituted before the Regional Trial Court (RTC) of Pasig City Civil Case No. 66213, complaining that it was not given access to certain documents by which it could have evaluated the financial proposal of PIATCO and its ability to match the same. Thus, AEDC sought, among other things, the nullification of the proceedings before the PBAC and the declaration of the absence of any other competitive bid by a qualified bidder. Nevertheless, AEDC would also later jointly move (with therein public respondents10 ) for the dismissal of Civil Case No. 66213 pursuant to a Concession Agreement it executed on 12 July 1997 with the Department of Transportation and Communications (DOTC). The Pasig City RTC granted the joint motion of the parties and accordingly dismissed with prejudice Civil Case No. 66213 in an Order dated 30 April 1999. Therefore, AEDC not only failed to match the more advantageous proposal of PIATCO, but it also agreed to no longer pursue its objections thereto. In the meantime, PIATCO already began building the NAIA IPT III facilities. By the time this Court promulgated its Decision in Agan, disqualifying PIATCO as a bidder and annulling the award of the NAIA IPT III Project to it, the NAIA IPT III facilities were substantially complete. The Court, in its Resolution in Agan, recognized the right of PIATCO to just compensation for the NAIA IPT III facilities, in accordance with law and equity. The Government, thereafter, instituted an expropriation case for the determination of the just compensation to be paid to PIATCO. In Republic v. Gingoyon,11 the Court affirmed the application of Republic Act No. 897412 to the expropriation case and the right of the Government to take possession of the NAIA IPT III facilities upon the payment to PIATCO of the proffered value of the same. On 11 September 2006, the Manila International Airport Authority (MIAA) tendered a Land Bank check in the amount of P3,002,125,000.00 representing the proffered value of NAIA IPT III, which was received by a duly authorized representative of PIATCO. As a result, the MIAA and other concerned government agencies were able to take possession of the NAIA IPT III facilities and prepare them for operation. The NAIA IPT III opened for domestic air travel on 22 July 2008.13 The first international flight took off from NAIA IPT III on 1 August 2008.14 These developments, as well as the implications and consequences thereof, cannot be conveniently ignored. The factual backdrop has significantly changed from the time of the bidding of the NAIA IPT III Project, which prevents us from concluding that, with the disqualification of PIATCO, AEDC shall automatically acquire NAIA IPT III Project as the original proponent thereof. The bidding and awarding process for the NAIA IPT III Project had long been

closed. The Court could not just conveniently revert to the stage of bidding and awarding of the said project and ignore all the factual and legal developments that had already taken place. There is no point in subjecting the NAIA IPT III Project to another bidding and awarding process when it is substantially finished and, contrary to the averments of AEDC, already operational. Worth stressing is that the NAIA IPT III Project is a build-operate-transfer project. When the NAIA IPT III facilities have already been built, their possession transferred to the government, and are now being operated by the latter, nothing much remains of the project. The ultimate goal of a BOT project is for the government to eventually gain possession, ownership, and control of the infrastructure subject thereof from the private sector that undertook its building and financing, after allowing the latter to recoup its investments and reap reasonable profit. In this case, the government has already attained possession and control of the NAIA IPT III facilities. It would also acquire ownership of said facilities once the just and equitable compensation due PIATCO as builder15 has been determined and paid in the ongoing expropriation proceedings, docketed as Case No. 04-0876CFM, before the Pasay City RTC. To return the NAIA IPT III facilities to the private sector would only be a step backwards. The lack of technical skill and competence of the Government to operate NAIA IPT III cannot justify turning over the same to AEDC. There are several other ways for the Government to cope, i.e., recruiting more qualified people, without it having to relinquish ownership, possession, and control of NAIA IPT III. The protestation by AEDC of our characterization of the process on unsolicited proposal as public bidding is specious. We call attention to the following relevant sections of Rule 10 of the IRR specifically on Unsolicited Proposals: Sec. 10.9. Negotiation With the Original Proponent. Immediately after ICC/Local Sanggunians clearance of the project, the Agency/LGU shall proceed with the in-depth negotiation of the project scope, implementation arrangements and concession agreement, all of which will be used in the Terms of Reference for the solicitation of comparative proposals. The Agency/LGU and the proponent are given ninety (90) days upon receipt of ICCs approval of the project to conclude negotiations. The Agency/LGU and the original proponent shall negotiate in good faith. However, should there be unresolvable differences during the negotiations, the Agency/LGU shall have the option to reject the proposal and bid out the project. On the other hand, if the negotiation is successfully concluded, the original proponent shall then be required to reformat and resubmit its proposal in accordance with the requirements of the Terms of Reference to facilitate comparison with the comparative proposals. The Agency/LGU shall validate the reformatted proposal if it meets the requirements of the TOR prior to the issuance of the invitation for comparative proposals. Sec. 10.10. Tender Documents. The qualification and tender documents shall be prepared along the lines specified under Rules 4 and 5 hereof. The concession agreement that will be part of the tender documents will be considered final and non-negotiable by the challengers. Proprietary information shall, however, be respected, protected and treated with utmost confidentiality. As such, it shall not form part of the bidding/tender and related documents. Sec. 10.11. Invitation for Comparative Proposals. The Agency/LGU shall publish the invitation for comparative or competitive proposals only after ICC/Local Sanggunian issues a no objection clearance of the draft contract. The invitation for comparative or competitive proposals should be published at least once every week for three (3) weeks in at least one (1) newspaper of general circulation. It shall indicate the time, which should not be earlier than the last date of publication, and place where tender/bidding documents could be obtained. It shall likewise explicitly specify a time of sixty (60) working days reckoned from the date of issuance of the tender/bidding

documents upon which proposals shall be received. Beyond said deadline, no proposals shall be accepted. A pre-bid conference shall be conducted ten (10) working days after the issuance of the tender/bidding documents. Sec. 10.12. Posting of Bid Bond by Original Proponent. The original proponent shall be required at the date of the first date of the publication of the invitation for comparative proposals to submit a bid bond equal to the amount and in the form required of the challengers. Sec. 10.13. Simultaneous Qualification of the Original Proponent. The Agency/LGU shall qualify the original proponent based on the provisions of Rule 5 hereof, within thirty (30) days from start of negotiation. For consistency, the evaluation criteria used for qualifying the original proponent should be the same criteria used in the Terms of Reference for the challengers. Sec. 10.14. Submission of Proposal. The bidders are required to submit the proposal in three envelopes at the time and place specified in the Tender Documents. The first envelope shall contain the qualification documents, the second envelope the technical proposal as required under Sec. 7.1.(b), and the third envelope as required under Sec. 7.1.(c). Sec. 10.15. Evaluation of Proposals. In terms of procedure, the evaluation will be in three stages: Stage 1 is the evaluation of qualification documents; Stage 2, the technical proposal; and Stage 3, the financial proposal. Only those bids which passed the first stage will be considered for the second stage and similarly, only those which passed the second stage will be considered for the third stage evaluation. The Agency/LGU will return to the disqualified bidders the remaining envelopes unopened together with a letter explaining why they were disqualified. The criteria for evaluation will follow Rule 5 for the qualification of bidders and Rule 8 for the technical and financial proposals. The time frames under Rules 5 and 8 shall likewise be followed. Sec. 10.16. Disclosure of the Price Proposal. The disclosure of the price proposal of the original proponent in the Tender Documents will be left to the discretion of the Agency/LGU. However, if it was not disclosed in the Tender Documents, the original proponents price proposal should be revealed upon the opening of the financial proposals of the challengers. The right of the original proponent to match the best proposal within thirty (30) working days starts upon official notification by the Agency/LGU of the most advantageous financial proposal. (Emphasis ours.) After the concerned government agency or local government unit (LGU) has received, evaluated, and approved the pursuance of the project subject of the unsolicited proposal, the subsequent steps are fundamentally similar to the bidding process conducted for ordinary government projects. The three principles of public bidding are: the offer to the public, an opportunity for competition, and a basis for an exact comparison of bids,16 all of which are present in Sec. 10.9 to Sec. 10.16 of the IRR. First, the project is offered to the public through the publication of the invitation for comparative proposals. Second, the challengers are given the opportunity to compete for the project through the submission of their tender/bid documents. And third, the exact comparison of the bids is ensured by using the same requirements/qualifications/criteria for the original proponent and the challengers, to wit: the proposals of the original proponent17 and the challengers must all be in accordance with the requirements of the Terms of Reference (TOR) for the project; the original proponent and the challengers are required to post bid bonds equal in amount and form;18 and the qualifications of the original proponent and the challengers shall be evaluated by the concerned agency/LGU using the same evaluation criteria.191avvphi1.zw+

A perusal of Sec. 10.9 to Sec. 10.16 of the IRR further reveals repeated mention of "comparative proposals" and "tender/bid documents"; as well as reference to and required compliance with the same rules followed in ordinary bidding of government projects, such as Rule 4 (Bid/Tender Documents); Rule 5 (Qualification of Bidders); and Sec. 7.1(b) and Sec. 7.1(c) of Rule 7 (Submission, Receipt and Opening of Bids) of the same IRR. Hence, the process of unsolicited proposals does involve public bidding where, in the end, the government is free to choose the bid or proposal most advantageous to it. However, by adoption of the Swiss Challenge, special consideration is given in said process to the original proponent of the project, namely, the right to be awarded the project should it be able to match the lowest or most advantageous proposal within 30 working days from notice. There is no truth to the averment of AEDC that by our Decision of 18 April 2008, we are allowing PIATCO to benefit from its own fraud and wrongdoing. Our refusal to award the NAIA IPT III Project to AEDC does not in any way benefit PIATCO. PIATCO cannot benefit from the NAIA IPT III Project when its Concession Agreements involving the same were set aside for being null and void, rendering it unable to derive profit therefrom. It is only entitled to just and equitable compensation for building the NAIA IPT III facilities, "for the government cannot unjustly enrich itself at the expense of PIATCO and investors."20 AEDC takes exception to the doubts raised by this Court on the authenticity of the Memorandum of Understanding (MOU) dated 26 February 1996 it executed with the DOTC. To recall, our Decision of 18 April 2008 states: It is important to note, however, that the document attached as Annex "E" to the Petition of AEDC is a "certified photocopy of records on file." This Court cannot give much weight to said document considering that its existence and due execution have not been established. It is not notarized, so it does not enjoy the presumption of regularity of a public document. It is not even witnessed by anyone. It is not certified true by its supposed signatories, Secretary Jesus B. Garcia, Jr. for DOTC and Chairman Henry Sy, Sr. for AEDC, or by any government agency having its custody. It is certified as a photocopy of records on file by an Atty. Cecilia L. Pesayco, the Corporate Secretary, of an unidentified corporation.21 AEDC itself invoked the provisions of the MOU and attached a copy thereof as one of the Annexes to its Petition in G.R. No. 169914. By submitting a copy of the MOU, AEDC subjects the said document to the scrutiny of the Court, which is duty-bound to examine and weigh the same in accordance with the rules. We are not obligated to receive a copy of the MOU just as AEDC offered it; and accept hook, line, and sinker, the references made by AEDC to the contents thereof without ascertaining that it was actually the very same document executed by the parties. Nowhere in our 18 April 2008 Decision did we expressly declare that there was no MOU between AEDC and the government. What we called attention to therein was the fact that the document attached to the Petition of AEDC was highly suspect, not being a clear copy and not being properly certified as a true copy of the MOU, for which reasons, it could not be given much weight and credence in establishing the exact contents of the MOU in question. Furthermore, it would do well for AEDC to remember that we did proceed, for the sake of argument, to rule on the contents of the MOU as follows: Even assuming for the sake of argument, that the said Memorandum of [Understanding], is in existence and duly executed, it does little to support the claim of AEDC to the award of the NAIA IPT III Project. The commitments undertaken by the DOTC and AEDC in the Memorandum of [Understanding] may be simply summarized as a commitment to comply with the procedure and requirements provided in Rules 10 and 11 of the IRR. It bears no commitment on the part of the

DOTC to award the NAIA IPT III Project to AEDC. On the contrary, the document includes express stipulations that negate any such government obligation. Thus, in the first clause, the DOTC affirmed its commitment to pursue, implement and complete the NAIA IPT III Project on or before 1998, noticeably without mentioning that such commitment was to pursue the project specifically with AEDC. Likewise, in the second clause, it was emphasized that the DOTC shall pursue the project under Rules 10 and 11 of the IRR of Republic Act No. 6957, as amended by Republic Act No. 7718. And most significantly, the tenth clause of the same document provided: 10. Nothing in this Memorandum of Understanding shall be understood, interpreted or construed as permitting, allowing or authorizing the circumvention of, or non-compliance with, or as waiving, the provisions of, and requirements and procedures under, existing laws, rules and regulations.22 Hence, even after a consideration of the contents of the MOU, we do not find therein an absolute undertaking on the part of the government, represented by the DOTC, to award the NAIA IPT III Project to AEDC. There is likewise no sufficient reason for us to reverse the pronouncements in our Decision dated 18 April 2008 that the Petition of AEDC in G.R. No. 169914 suffered from procedural defects: having been filed beyond reasonable time and being barred by res judicata. We have already adequately explained in our 18 April 2008 Decision our finding that the Petition of AEDC was filed beyond reasonable time, to wit: AEDC revived its hope to acquire the NAIA IPT III Project when this Court promulgated its Decision in Agan on 5 May 2003. The said Decision became final and executory on 17 February 2004 upon the denial by this Court of the Motion for Leave to File Second Motion for Reconsideration submitted by PIATCO. It is this Decision that declared the award of the NAIA IPT III Project to PIATCO as null and void; without the same, then the award of the NAIA IPT III Project to PIATCO would still subsist and other persons would remain precluded from acquiring rights thereto, including AEDC. Irrefutably, the present claim of AEDC is rooted in the Decision of this Court in Agan. However, AEDC filed the Petition at bar only 20 months after the promulgation of the Decision in Agan on 5 May 2003.23 AEDC is merely reiterating in its Motion for Reconsideration the same disputation it previously made in its Petition that the period for filing of said Petition should only be counted from 21 September 2005, the date when it received the letter of the Solicitor General denying its offer to take over the NAIA IPT III Project and which we had already considered and rejected in our Decision dated 18 April 2008 for the following reasons: AEDC contends that the "reasonable time" within which it should have filed its petition should be reckoned only from 21 September 2005, the date when AEDC received the letter from the Office of the Solicitor General refusing to recognize the rights of AEDC to provide the available funds for the completion of the NAIA IPT III Project and to reimburse the costs of the structures already built by PIATCO. It has been unmistakable that even long before said letter especially when the Government instituted with the RTC of Pasay City expropriation proceedings for the NAIA IPT III on 21 December 2004 that the Government would not recognize any right that AEDC purportedly had over the NAIA IPT III Project and that the Government is intent on taking over and operating the NAIA IPT III itself.24 Without any new argument on this issue, we are not persuaded to change our afore-quoted ruling.

On the issue of res judicata, AEDC argues that we erred in taking cognizance thereof even when the issue was not raised by the parties. We disagree. Even if the public respondents in G.R. No. 169914 failed to plead res judicata in their Comment and is deemed to have waived the said defense, we may still motu proprio dismiss the Petition by reason thereof if it appears in the pleadings or the evidence on record that the said Petition is barred by prior judgment. Section 1, Rule 10 of the Revised Rules of Court provides: SECTION 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (Emphasis ours.) Although the foregoing provision appears under the rules on proceedings before the trial court, the power to dismiss provided therein is among the residual prerogatives which the Court of Appeals25 and even this Court may exercise by virtue of Section 2, Rule 1 of the Revised Rules of Court.26 The Petition27 of AEDC itself brought to our attention the institution of, the developments in, as well as the eventual dismissal with prejudice of Civil Case No. 66213 by the Pasig City RTC. We had to take cognizance thereof, and after careful consideration, found that the dismissal with prejudice of Civil Case No. 66213 by the Pasig City RTC effectively bars the instant Petition of AEDC. AEDC had waived its right to challenge the award of the NAIA IPT III Project to PIATCO when it amicably settled Civil Case No. 66213 before the Pasig City RTC, resulting in the dismissal with prejudice of said case. We should not allow the revival by AEDC of its right to the NAIA IPT III Project as the original proponent thereof, after some other party secured the annulment of the award to PIATCO, not only because it is barred by res judicata, but also because it constitutes palpable opportunism. Finally, we find baseless the averment of AEDC that our judgment recognizing and respecting the final and immediately executory Order dated 30 April 1999 of the Pasig City RTC which granted, with prejudice, the Joint Motion to Dismiss Civil Case No. 66213 filed by the parties therein will imperil the position of the government in the international arbitration cases involving the NAIA IPT III Project still pending before the International Chamber of Commerce (ICC). AEDC points out that the position taken by the government in Civil Case No. 66213 (that PIATCO was qualified to participate in the bidding for the NAIA IPT III Project) is inconsistent with the position the latter is espousing in the international arbitration cases (that PIATCO was financially disqualified from bidding for the NAIA IPT III Project). It should be recalled, however, that in the Joint Motion to Dismiss Civil Case No. 66213, the parties, without admitting liability or conceding to the position taken by the other, agreed to release and forever discharge each other from any and all liabilities, whether criminal or civil, arising in connection with the case. Evidently, the parties consented to release and discharge each other from any liability regardless of whether the other party maintained or conceded its position. Stated otherwise, the position taken by the parties on the issues in the case was not material to their agreement to release and discharge each other from any liability. The Order dated 30 April 1999 of the Pasig City RTC merely granted the Joint Motion to Dismiss Civil Case No. 66213, the very terms of which rendered it unnecessary for the said court to consider or rule

upon the positions of the parties. Thus, nothing in the said Order of the Pasig City RTC precludes the government in the international arbitration proceedings before the ICC from adopting the position that PIATCO was financially disqualified to bid for the NAIA IPT III Project. The Motion for Reconsideration of Baterina (G.R. No. 174166) Baterina presents the following arguments in support of his Motion for Reconsideration: The principles of res judicata and stare decisis, and the doctrine of the "law of the case," do not apply to Baterina because he was not a party to the previous cases; and because the issues raised here are not the same issues litigated in Gingoyon.28 The issues advocated by Baterina, especially on the ownership of Terminal 3 and the propriety of paying just compensation to PIATCO, have not become moot and academic because these issues remain to be viable and justiciable controversies; a resolution on the merits of these issues will serve a useful purpose that will inure to the benefit of the Filipino people.29 The issues advocated by Baterina remain to be viable and justiciable controversies because the pronouncements relating thereto in AGan and in Gingoyon were not a final adjudication on the merits.30 Baterina was deprived of a fair opportunity to be heard because the Court may have unwittingly failed to explain the factual and legal reasons that led the Court to reject Baterinas arguments that the pronouncement in Gingoyon regarding PIATCOs ownership of Terminal 3 was not a final adjudication on the merits and may have been improvident.31 A resolution on the merits of the ownership of Terminal 3 will serve a useful and practical purpose, and will inure to the benefit of the Filipino people, because it will determine the regime of compensation that must be applied to PIATCO.32 Baterina then seeks from this Court the following: PRAYER WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court RECONSIDER and SET ASIDE the Decision dated 18 April 2008, at least insofar as G.R. No. 174166 is concerned, and RENDER a new judgment as follows: 1. DECLARE that: (i) Terminal 3 as a matter of law, is public property and thus not a proper object of eminent domain proceedings; and (ii) PIATCO, as a matter of law, is merely the builder of Terminal 3 and, as such, it may file a claim for recovery on quantum meruit with the Commission on Audit for determination of the amount thereof, if any. 2. DIRECT the Regional Trial Court of Pasay City, Branch 117 to dismiss the expropriation case, Civil Case No. 04-0876-CFM. 3. DECLARE that the Php3 Billion paid to PIATCO on 11 September 2006 (representing the proferred value of Terminal 3) as funds held in trust by PIATCO for the benefit of the Republic and subject to the outcome of the proceedings to determine recovery on quantum meruit due to PIATCO, if any.

4. DIRECT the Solicitor General to disclose the evidence it has gathered on the corruption, bribery, fraud, bad faith, etc., to this Honorable Court and the Commission on Audit, and to DECLARE such evidence to be admissible in any proceeding for the determination of any compensation due to PIATCO, if any. 5. In the alternative, to: i. SET ASIDE the expropriaton courts Order dated 08 August 2006 denying Baterinas motion for intervention in the expropriation case, and ii. DIRECT the expropriation court to hear and resolve the issue of ownership of Terminal 3 consistent with the Honorable Courts holding in Gingoyon that "the interests of the movants-in-intervention may be duly litigated in proceedings which are extant before lower courts." 6. As another alternative, even should this Honorable Court not reconsider its Decision dated 18 April 2008, to declare that the expropriation court is empowered and is mandated, by both law and to protect the public interest and to ensure good governance, to consider evidence of PIATCOs illegal activities and unreasonable expenses and to accordingly adjust the amount of just compensation due to PIATCO. Other reliefs, just and equitable in the premises, are likewise prayed for.33 Baterinas present Motion presents no new arguments for our consideration and only displays his obstinate refusal to acknowledge and respect our final and executory decisions in Agan and Gingoyon. We stand firm on our pronouncement in our Decision dated 18 April 2008 that the entitlement of PIATCO to just and equitable consideration for its construction of NAIA IPT III and the propriety of the Republics resort to expropriation proceedings were already recognized and upheld by this Court in Agan and Gingoyon. Undoubtedly, the Republic and PIATCO, the parties in Case No. 04-0876CFM, the expropriation case instituted by the Republic before the Pasay City RTC, are bound by Agan and Gingoyon by conclusiveness of judgment and law of the case. However, as to Baterina, a second hard look at this case convinces us that the issue of whether he is bound by Agan and Gingoyon is not even material, given the fact that he has repeatedly failed to establish to the satisfaction of the courts his interest and legal standing to intervene in previous or pending judicial proceedings involving the NAIA IPT III Project. Baterinas Motion for Intervention and Motion for Reconsideration-in-Intervention of the Decision in Gingoyon were denied by the Court, not only for having been belatedly filed, but also pursuant to the following significant observation: In the case of Representative Baterina, he invokes his prerogative as legislator to curtail the disbursement without appropriation of public funds to compensate PIATCO, as well as that as a taxpayer, as the basis of his legal standing to intervene. However, it should be noted that the amount which the Court directed to be paid by the Government to PIATCO was derived from the money deposited by the Manila International Airport Authority, an agency which enjoys corporate autonomy and possesses a legal personality separate and distinct from those of the National Government and agencies thereof whose budgets have to be approved by Congress.34

True, we also noted that the interests of the movants-in-intervention in Gingoyon, which included Baterina, "may be duly litigated in proceedings which are extant before the lower courts."35 But such statement simply recognized Baterinas option to pursue his intervention in Case No. 040876CFM before the Pasay City RTC, and contained no absolute assurance to Baterina or categorical directive to the trial court that his intervention shall be allowed and given due course. The Pasay City RTC can still exercise its discretion in granting or denying Baterinas Motion for Intervention and in admitting or rejecting his Petition in Intervention. In fact, in its exercise of said discretion, the Pasay City RTC issued an Order36 dated 8 August 2006 denying Baterinas Motion for Intervention and refusing to admit his Petition in Intervention in Case No. 04-0876CFM, ratiocinating thus: As regards Congressman Baterina, et.al., (sic) the Court finds that, as legislators and taxpayers, they have no legal interest to intervene in this case. xxxx There has been no showing up to this point that plaintiffs intend to use tax refunds in the course of their expropriation of NAIA IPT 3. In fact, the amount that plaintiffs initially deposited with the Land Bank of the Philippines for the purposes of this case comprised funds (sic) of plaintiff Manila International Authority (MIAA) (sic) and did not come from the collection of taxes. The reasoning behind the Supreme Courts denial of their motion to intervene in Republic vs. Gingoyon also applies here: xxxx More importantly, this Court itself will decide how much payment will be due from plaintiffs to defendant PIATCO, in accordance with law, since the determination of just compensation is a judicial function. The amount of just compensation is not for the plaintiffs or defendant PIATCO to decide. This, Congressman Baterina, Et (sic) al. could not possibly set up a petition against both plaintiffs and defendant for illegal disbursement of public funds when it is precisely the Court, not plaintiff or defendant, which will ensure that the determination and payment of just compensation to defendant PIATCO would be in compliance with Philippine laws. There is, therefore, no room in this expropriation case for a taxpayers intervention. Similarly, there is also no room in this expropriation case for the accommodation of a legislators petition. Plaintiffs exercise of the right of eminent domain does not infringe howsoever on legislative prerogatives, powers of (sic) privileges. xxxx The motion that private property may be taken without need for payment of just compensation, as espoused by Congressman Baterina, et al., is so foreign to Philippine Constitutional democracy that it has no place for consideration in an expropriation case. Congressman Baterina, et.al., (sic) also cannot rely on criminal charges filed against private individuals, not involving defendant PIATCO, to defeat the payment of just compensation for the taking of private property, which no less than the Philippine Constitution mandates. Those criminal cases are irrelevant to this expropriation. Neither may Congressman Baterina, et al., rely on the Supreme Courts ruling in Again vs. PIATCO (G.R. No. 155001, May 5, 2003) to establish legal standing here. Agan vs. PIATCO was an entirely different case, involving very different legal interests. It was not an expropriation case. Congressman Baterina, Et.al., (sic) cannot use this expropriation case as a

venue to belatedly ventilate arguments that they may forgotten to raise in Agan vs. PIATCO. That is not allowed, especially since Congressman Baterina, Et.al., (sic) has (sic) every opportunity to seek reconsideration of the Supreme Courts decision in Agan vs. PIATCO. Furthermore, there is no basis under the Rules of Court or in jurisprudence for the allowance of a petition for prohibition being intermingled with a special civil action for expropriation. Finally, the Court notes that Congressman Baterina et.al. (sic) never paid filing fees for their petition for prohibition in intervention. This Court, therefore, never obtained jurisdiction over their petition and never acquired jurisdiction to permit their intervention. As the Supreme Court clarified in Serrano vs. Delica (G.R. No. 136325, July 29, 2005). (sic) It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the prescribed docket fees that vests a trial court with jurisdiction over the subject matter or nature of the action. 37 There is no showing that Baterina filed a Motion for Reconsideration of the foregoing Order dated 8 August 2006 of the Pasay City RTC denying his Motion for Intervention; or that he appealed the said Order or challenged the same in a Petition for Certiorari before the higher courts. Baterinas Petition for Certiorari and Prohibition (With Urgent Prayer for the Issuance of a Temporary Restraining Order and Writ of Preliminary Injunction), docketed as CA-G.R. No. 95539, was filed before the Court of Appeals on 6 August 2006. It questioned the issuance by the Pasay City RTC, allegedly in grave abuse of discretion, of the Orders dated 27 March 2006 and 15 June 2006 and Writ of Execution dated 27 March 2006, which directed the MIAA and Land Bank of the Philippines to already pay PIATCO the proffered value of the NAIA IPT III facilities, so that the government could take possession of the said infrastructures. Thus, the 8 August 2006 Order denying Baterinas Motion for Intervention was clearly not among the orders of the Pasay City RTC assailed in CA-G.R. No. 95539. Additionally, it was the issuance by the Court of Appeals of a Temporary Restraining Order (TRO) in CA-G.R. No. 95539 that gave rise to the Petition for Certiorari and Prohibition of the Republic before this Court, docketed as G.R. No. 174166. The Republic sought to enjoin the appellate court from implementing the said TRO and from proceeding with CA-G.R. No. 95539. None of the afore-described proceedings before the Court of Appeals or this Court involve the Pasay City RTC Order dated 8 August 2006. Since Baterina failed to avail himself of any remedy from the denial of his Motion for Intervention in Case No. 04-0876CFM, the same has become final and executory as to him. Baterina, therefore, can no longer participate in the proceedings before the Pasay City RTC in Case No. 04-0876CFM, for he is already a stranger to said case. Having been barred from participating any further in Case No. 04-0876CFM before the Pasay City RTC, Baterina is attempting to have us rule on the merits of his Petition in Intervention (which was not admitted by the Pasay City RTC) by merely reiterating the contents thereof in his Comment on the Petition of the Republic in G.R. No. 174166. This is a blatant circumvention of the rules of procedure which we cannot countenance. In light of Baterinas failure to have the denial by the Pasay City RTC of his Motion for Intervention reversed, no court, not even this Court, can take cognizance of his Petition in Intervention, even if so cleverly presented as another pleading but with essentially the same prayer. WHEREFORE, premises considered, the Motions for Reconsideration of our 18 April 2008 Decision filed by Asias Emerging Dragon Corporation and Salacnib F. Baterina are hereby DENIED WITH FINALITY. SO ORDERED.

MANILA ELECTRIC COMPANY, petitioner, vs. T.E.A.M. ELECTRONICS CORPORATION, TECHNOLOGY ELECTRONICS ASSEMBLY and MANAGEMENT PACIFIC CORPORATION; and ULTRA ELECTRONICS INSTRUMENTS, INC., respondents. FACTS:

wire duct leading to the transformer vault did not, in themselves, prove the alleged tampering, especially since access to the transformer was given only to petitioner's employees. The sudden drop in TEC's (or Ultra's) electric consumption did not, per se, show meter tampering. Ultra and petitioner appealed to the CA which affirmed the RTC decision, with a modification of the amount of actual damages and interest thereon. ISSUE: WON a corporation can be entitled for a payment of moral damages.

Respondent T.E.A.M. Electronics Corporation (TEC) was formerly known as NS Electronics (Philippines), Inc. before 1982 and National Semi-Conductors (Phils.) before 1988. TEC is wholly owned by respondent Technology Electronics Assembly and Management Pacific Corporation (TPC). On the other hand, petitioner Manila Electric Company (Meralco) is a utility company supplying electricity in the Metro Manila area. Petitioner and NS Electronics (Philippines), Inc., the predecessor-in-interest of respondent TEC, were parties to two separate contracts denominated as Agreements for the Sale of Electric Energy Under the aforesaid agreements, petitioner undertook to supply TEC's building known as Dyna Craft International Manila (DCIM) with electric power. In September 1986, TEC, under its former name National Semi-Conductors (Phils.) entered into a Contract of Lease with respondent Ultra Electronics Industries, Inc. (Ultra) for the use of the former's DCIM building for a period of five years or until September 1991. Ultra was, however, ejected from the premises on February 12, 1988 by virtue of a court order, for repeated violation of the terms and conditions of the lease contract. A team of petitioner's inspectors conducted a surprise inspection of the electric meters installed at the DCIM building. The two meters were found to be allegedly tampered with and did not register the actual power consumption in the building. Petitioner informed TEC of the results of the inspection and demanded from the latter the payment of P7,040,401.01 representing its unregistered consumption. Since Ultra was in possession of the subject building during the covered period, TEC's Managing Director, Mr. Bobby Tan, referred the demand letter to Ultra which, in turn, informed TEC that its Executive Vice-President had met with petitioner's representative. Ultra further intimated that assuming that there was tampering of the meters, petitioner's assessment was excessive. For failure of TEC to pay the differential billing, petitioner disconnected the electricity supply to the DCIM building on April 29, 1988. TEC demanded from petitioner the reconnection of electrical service, claiming that it had nothing to do with the alleged tampering but the latter refused to heed the demand. Hence, TEC filed a complaint on May 27, 1988 before the Energy Regulatory Board (ERB) praying that electric power be restored to the DCIM building. The ERB immediately ordered the reconnection of the service but petitioner complied with it only on October 12, 1988 after TEC paid P1,000,000.00, under protest. The complaint before the ERB was later withdrawn as the parties deemed it best to have the issues threshed out in the regular courts. Prior to the reconnection, or on June 7, 1988, petitioner conducted a scheduled inspection of the questioned meters and found them to have been tampered anew. TEC and TPC filed a complaint for damages against petitioner and Ultra before the Regional Trial Court (RTC) of Pasig. The RTC ruled in favor of the plaintiffs and against the defendants and ordered the reimbursement of the amount paid by the plaintiff to the defendant. In this decision, Ultra is solidarily liable with Meralco to pay TEC the amount of P1,000,000.00. The trial court found the evidence of petitioner insufficient to prove that TEC was guilty of tampering the meter installations. The deformed condition of the meter seal and the existence of an opening in the

HELD: The court deemed it proper to delete the award of moral damages. TEC's claim was premised allegedly on the damage to its goodwill and reputation. As a rule, a corporation is not entitled to moral damages because, not being a natural person, it cannot experience physical suffering or sentiments like wounded feelings, serious anxiety, mental anguish and moral shock. The only exception to this rule is when the corporation has a reputation that is debased, resulting in its humiliation in the business realm. But in such a case, it is imperative for the claimant to present proof to justify the award. It is essential to prove the existence of the factual basis of the damage and its causal relation to petitioner's acts. In the present case, the records are bereft of any evidence that the name or reputation of TEC/TPC has been debased as a result of petitioner's acts. Besides, the trial court simply awarded moral damages in the dispositive portion of its decision without stating the basis thereof. The court affirmed the decision of the CA and said that Petitioner, in the instant case, resorted to the remedy of disconnection without prior notice. While it is true that petitioner sent a demand letter to TEC for the payment of differential billing, it did not include any notice that the electric supply would be disconnected. In fine, petitioner abused the remedies granted to it under P.D. 401 and Revised General Order No. 1 by outrightly depriving TEC of electrical services without first notifying it of the impending disconnection. Accordingly, the CA did not err in affirming the RTC decision. It did not gave credence to the alleged tampering committed by the respondent. Furthermore, Ultra cannot be held solidarily liable with petitioner for P1,000,000.00, only because the former, as occupant of the building, promised to settle the claims of the latter. Ultra's promise was conditioned upon the finding of defect or tampering of the meters. It did not acknowledge any culpability and liability, and absent any tampered meter, it is absurd to make the lawful occupant liable. It was petitioner who received the P1 million; thus, it alone should be held liable for the return of the amount.

Topic: Distinguishing Characteristics of a Corporation 1. A corporation is an artificial being. #6 NYK INTERNATIONAL KNITWEAR CORPORATION PHILIPPINES and/or CATHY NG vs. NATIONAL LABOR RELATIONS COMMISSION and VIRGINIA M. PUBLICO G.R. No. 146267 FACTS: Virginia Pubico was hired by NYK as a sewer. She was only paid paid on a piece-rate basis, but was required to work from 8:00 A.M. to 12:00 midnight. On the average, she earned P185.00 daily. One time, Publico requested that she be allowed to leave the work place early, as she was not feeling well due to a bout of influenza. Permission was refused but nonetheless, Publico went home. The following day, Publico called up her employer and notified management that she was still recovering from her ailment. After 2 days, Publico reported for work. To her mortification and surprise, however, the security guard prevented her from entering the NYK premises, allegedly on managements order. It was only when Publico declared that she would just complete the unfinished work she had left on the day she went home early that the guard let her in. She requested to see the owner, Stephen Ng, but was declined. She was instead asked to come back the following day. On the next day, Publico returned to NYK as instructed. After waiting for three and half (3) hours, she was finally able to see Stephen Ng. When she inquired why she was barred from reporting for work, Mr. Ng told her she was dismissed due to her refusal to render overtime service. Aggrieved, Publico filed a complaint for illegal dismissal against NYK and its manager, petitioner Cathy Ng. The Labor Arbiter ruled that there was illegal dismissal, disposing as follows: WHEREFORE, the respondents are hereby ordered to reinstate the complainant to her former position with full backwages from the date her salary was withheld until she is actually reinstated, which amounted to P50,168.30 x x x. The respondents are, likewise, assessed the sum of P5,016.83 representing 10% of the amount awarded as attorneys fees. The rest of the claims are dismissed for lack of merit. On appeal, the NLRC affirmed the decision of the Labor Arbiter in toto. Petitioners impugned the NLRC decision by way of a special civil action of certiorari filed before the Court of Appeals. The CA dismissed the petition outright. The Court of Appeals pointed out that there was non-compliance with Section 1 of Rule 65 of the 1997 Rules of Civil Procedure as the petition was merely accompanied by a certified xerox copy of the assailed NLRC decision, instead of a certified true copy thereof as required by the Rules of Court. The petitioners MR was likewise dismissed. Hence, this petition before the Supreme Court. ISSUE: Whether or not the petitioner, Cathy Ng could be held solidarily liable with the corporation February 17, 2003

(NYK)? HELD: SC ruled in affirmative. Anent petitioners assertion that they cannot be solidarily liable in this case as there was no malice or bad faith on their part has no leg to stand on. What the Court finds apropos is our disquisition in A.C. Ransom Labor Union-CCLU v. NLRC, which held that since a corporation is an artificial person, it must have an officer who can be presumed to be the employer, being the "person acting in the interest of the employer." In other words the corporation, in the technical sense only, is the employer. In a subsequent case, we ordered the corporate officers of the employer corporation to pay jointly and solidarily the private respondents monetary award. More recently, a corporation and its president were directed by this Court to jointly and severally reinstate the illegally dismissed employees to their former positions and to pay the monetary awards. In this case Cathy Ng, admittedly, is the manager of NYK. Conformably with our ruling in A. C. Ransom, she falls within the meaning of an "employer" as contemplated by the Labor Code, who may be held jointly and severally liable for the obligations of the corporation to its dismissed employees. Pursuant to prevailing jurisprudence, Cathy Ng, in her capacity as manager and responsible officer of NYK, cannot be exonerated from her joint and several liability in the payment of monetary award to private respondent. WHEREFORE, the instant petition is DENIED. The assailed resolutions of the Court of Appeals dated September 15, 2000 and December 5, 2000, are hereby AFFIRMED.

Topic: Distinguishing Characteristics of a Corporation 1. A corporation is an artificial being. #7 PHILIPPINE NATIONAL BANK & NATIONAL SUGAR DEVELOPMENT CORPORATION vs. ANDRADA ELECTRIC & ENGINEERING COMPANY G.R. No. 142936 April 17, 2002

of the New Civil Code, and the case law ruling in Salonga v. Warner Barnes & Co., 88 Phil. 125; and Manila Port Service, et al. v. Court of Appeals, et al., 20 SCRA 1214. But, such motion was denied. TC rendered a decision favoring AEEC, ordering PNB, NASUDECO, and PASUMIL to pay jointly and severally the AEEC. CA affirmed the decision of TC. It held that it was offensive to the basic tenets of justice and equity for a corporation to take over and operate the business of another corporation, while disavowing or repudiating any responsibility, obligation or liability arising therefrom. ISSUE: Whether or not PNB is liable for the unpaid debts of PASUMIL to respondent AEEC. HELD: The Petition is meritorious. As a rule, a corporation that purchases the assets of another will not be liable for the debts of the selling corporation, provided the former acted in good faith and paid adequate consideration for such assets, except when any of the following circumstances is present: (1) where the purchaser expressly or impliedly agrees to assume the debts, (2) where the transaction amounts to a consolidation or merger of the corporations, (3) where the purchasing corporation is merely a continuation of the selling corporation, and (4) where the transaction is fraudulently entered into in order to escape liability for those debts. Piercing the Corporate Veil Not Warranted A corporation is an artificial being created by operation of law. It possesses the right of succession and such powers, attributes, and properties expressly authorized by law or incident to its existence. It has a personality separate and distinct from the persons composing it, as well as from any other legal entity to which it may be related. This is basic. Equally well-settled is the principle that the corporate mask may be removed or the corporate veil pierced when the corporation is just an alter ego of a person or of another corporation. For reasons of public policy and in the interest of justice, the corporate veil will justifiably be impaled only when it becomes a shield for fraud, illegality or inequity committed against third persons. Hence, any application of the doctrine of piercing the corporate veil should be done with caution. A court should be mindful of the milieu where it is to be applied. It must be certain that the corporate fiction was misused to such an extent that injustice, fraud, or crime was committed against another, in disregard of its rights. The wrongdoing must be clearly and convincingly established; it cannot be presumed. Otherwise, an injustice that was never unintended may result from an erroneous application. Piercing the veil of corporate fiction may be allowed only if the following elements concur: (1) control -- not mere stock control, but complete domination -- not only of finances, but of policy and business practice in respect to the transaction attacked, must have been such that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) such control must have been used by the defendant to commit a fraud or a wrong to perpetuate the violation of a statutory or other positive legal duty, or a dishonest and an unjust act in contravention of plaintiffs legal right; and (3) the said control and breach of duty must have proximately caused the injury or unjust loss complained of. We believe that the absence of the foregoing elements in the present case precludes the piercing of the corporate veil. First, other than the fact that petitioners acquired the assets of PASUMIL, there is no showing that their control over it warrants the disregard of corporate

Basic is the rule that a corporation has a legal personality distinct and separate from the persons and entities owning it. The corporate veil may be lifted only if it has been used to shield fraud, defend crime, justify a wrong, defeat public convenience, insulate bad faith or perpetuate injustice. Thus, the mere fact that the Philippine National Bank (PNB) acquired ownership or management of some assets of the Pampanga Sugar Mill (PASUMIL), which had earlier been foreclosed and purchased at the resulting public auction by the Development Bank of the Philippines (DBP), will not make PNB liable for the PASUMILs contractual debts to respondent.

FACTS: PNB acquired the assets of the Pampanga Sugar Mills (PASUMIL) that were earlier foreclosed by the Development Bank of the Philippines (DBP) under LOI No. 311. PNB organized the defendant National Sugar Development Corporation (NASUDECO) in September, 1975, to take ownership and possession of the assets and ultimately to nationalize and consolidate its interest in other PNB controlled sugar mills. Prior to October 29, 1971, the defendant PASUMIL engaged the services of Andrada Electric & Engineering Company (AEEC) for electrical rewinding and repair, most of which were partially paid by the defendant PASUMIL, leaving several unpaid accounts with the AEEC. PASUMIL and AEEC entered again into another contracts for electrical works and other extra work, and to provide electrical equipment and spare parts. Out of the total obligation of P777,263.80, PASUMIL had paid only P250,000.00, leaving an unpaid balance, as of June 27, 1973, amounting to P527,263.80, as shown in the Certification of the chief accountant of the PNB. PASUMIL made a partial payment to the plaintiff of P14,000.00, in broken amounts, covering the period from January 5, 1974 up to May 23, 1974, leaving an unpaid balance of P513,263.80. PASUMIL and the defendant PNB, and now the defendant NASUDECO, failed and refused to pay the plaintiff their just, valid and demandable obligation. The President of the NASUDECO is also the Vice-President of the PNB. PNB and NASUDECO now owned and possessed the assets of the defendant PASUMIL, and these defendants all benefited from the works, and the electrical, as well as the engineering and repairs, performed by the plaintiff. Because of the failure and refusal of the defendants to pay their just, valid, and demandable obligations, plaintiff suffered actual damages in the total amount of P513,263.80, and in order to recover these sums, the plaintiff was compelled to engage the professional services of counsel, to whom the plaintiff agreed to pay a sum equivalent to 25% of the amount of the obligation due by way of attorneys fees. Accordingly, the plaintiff prayed that judgment be rendered against the defendants PNB, NASUDECO, and PASUMIL, jointly and severally. The defendants PNB and NASUDECO filed a joint motion to dismiss the complaint chiefly on the ground that the complaint failed to state sufficient allegations to establish a cause of action against both defendants, inasmuch as there is lack or want of privity of contract between the plaintiff and the two defendants, the PNB and NASUDECO, said defendants citing Article 1311

personalities. Second, there is no evidence that their juridical personality was used to commit a fraud or to do a wrong; or that the separate corporate entity was farcically used as a mere alter ego, business conduit or instrumentality of another entity or person. Third, respondent was not defrauded or injured when petitioners acquired the assets of PASUMIL. Being the party that asked for the piercing of the corporate veil, respondent had the burden of presenting clear and convincing evidence to justify the setting aside of the separate corporate personality rule. However, it utterly failed to discharge this burden; it failed to establish by competent evidence that petitioners separate corporate veil had been used to conceal fraud, illegality or inequity. While we agree with respondents claim that the assets of the National Sugar Development Corporation (NASUDECO) can be easily traced to PASUMIL, we are not convinced that the transfer of the latters assets to petitioners was fraudulently entered into in order to escape liability for its debt to respondent. In the instant case, the CA erred in affirming the trial courts lifting of the corporate mask. The CA did not point to any fact evidencing bad faith on the part of PNB and its transferee. The corporate fiction was not used to defeat public convenience, justify a wrong, protect fraud or defend crime. None of the foregoing exceptions was shown to exist in the present case. On the contrary, the lifting of the corporate veil would result in manifest injustice. No Merger or Consolidation Respondent further claims that petitioners should be held liable for the unpaid obligations of PASUMIL by virtue of LOI Nos. 189-A and 311, which expressly authorized PASUMIL and PNB to merge or consolidate. On the other hand, petitioners contend that their takeover of the operations of PASUMIL did not involve any corporate merger or consolidation, because the latter had never lost its separate identity as a corporation. A consolidation is the union of two or more existing entities to form a new entity called the consolidated corporation. A merger, on the other hand, is a union whereby one or more existing corporations are absorbed by another corporation that survives and continues the combined business. The merger, however, does not become effective upon the mere agreement of the constituent corporations. Since a merger or consolidation involves fundamental changes in the corporation, as well as in the rights of stockholders and creditors, there must be an express provision of law authorizing them. For a valid merger or consolidation, the approval by the Securities and Exchange Commission (SEC) of the articles of merger or consolidation is required. These articles must likewise be duly approved by a majority of the respective stockholders of the constituent corporations. In the case at bar, we hold that there is no merger or consolidation with respect to PASUMIL and PNB. The procedure prescribed under Title IX of the Corporation Code was not followed. In fact, PASUMILs corporate existence, as correctly found by the CA, had not been legally extinguished or terminated. Further, prior to PNBs acquisition of the foreclosed assets, PASUMIL had previously made partial payments to respondent for the formers obligation in the amount of P777,263.80. As of June 27, 1973, PASUMIL had paid P250,000 to respondent and, from January 5, 1974 to May 23, 1974, another P14,000. Neither did petitioner expressly or impliedly agree to assume the debt of PASUMIL to

respondent. LOI No. 11 explicitly provides that PNB shall study and submit recommendations on the claims of PASUMILs creditors. Clearly, the corporate separateness between PASUMIL and PNB remains, despite respondents insistence to the contrary. WHEREFORE, the Petition is hereby GRANTED and the assailed Decision SET ASIDE.

Topic: Distinguishing Characteristics of a Corporation 1. A corporation is an artificial being. #8 ARB CONSTRUCTION CO., INC., and MARK MOLINA, vs. COURT OF APPEALS, TBS SECURITY AND INVESTIGATION AGENCY represented by CECILIA R. BACLAY, G.R. No. 126554 May 31, 2000 Facts: On 15 August 1993 TBS Security and Investigation Agency (TBSS) entered into two (2) Service Contracts with ARBC wherein TBSS agreed to provide and post security guards in the five (5) establishments being maintained by ARBC. In a letter dated 23 February 1994 ARBC informed TBSS of its desire to terminate the Service Contracts effective thirty (30) days after receipt of the letter. Also, in a letter dated 22 March 1994, ARBC through its Vice President for Operations, Mark Molina, informed TBSS that it was replacing its security guards with those of Global Security Investigation Agency (GSIA). In response to both letters, TBSS informed ARBC that the latter could not preterminate the Service Contracts nor could it post security guards from GSIA as it would run counter to the provisions of their Service Contracts. Since Molina could not preterminate the contract, he decreased the security guards to only one (1) allegedly pursuant to Clause 2 of the Service Contracts which provides 2. The AGENCY shall adopt a guarding system and post guards in accordance thereof, in the premises of the client throughout the whole 24 hours daily, using variable shifts of the guards at such hours as may be designated by the CLIENT or AGENCY. As required by the CLIENT, the security guards to be assigned by the AGENCY shall consist initially of the following . . . subject to be increased or decreased by the CLIENT at its sole discretion depending on the security situation or the exigency of the service, by giving the AGENCY at least SEVEN (7) days prior notice. Thus on 28 March 1994 TBSS filed a Complaint for Preliminary Injunction against ARBC and GSIA. In Answer, ARBC claimed that it decreased the number of security guards being posted at its establishments to only one (1) as the security guards assigned by TSBB were found to be grossly negligent and inefficient. On 16 May 1994 TBSS filed a Motion for Leave to File Attached Amended and Supplemental Complaint. TBSS submitted that it now desired to pursue a case for Sum of Money and Damages instead of the one previously filed for Preliminary Injunction. It maintained that the Amended and Supplemental Complaint would not substantially alter its cause of action as both the original and amended complaint were based on the same set of facts. ARBC opposed the Motion for Leave to File Amended and Supplemental Complaint contending that the cause of action had been substantially altered. However, the RTC-Makati granted said Motion by TBSS. ARBC filed a Petition with the Court of Appeals alleging that the trial court committed grave abuse of discretion in issuing the Orders. But this was denied by CA. In a petition before the Supreme Court, Molina contended that THE COURT OF APPEALS ERRED IN HOLDING THAT THE ALLEGATIONS IN THE AMENDED AND SUPPLEMENTAL COMPLAINT WERE SUFFICIENT TO HOLD PETITIONER MOLINA LIABLE TO PRIVATE RESPONDENT IN HIS PERSONAL CAPACITY.

ISSUE: Whether or not Molina could be held liable to TBSS in his personal capacity HELD: In this regard, we agree with petitioners. It is basic that a corporation is invested by law with a personality separate and distinct from those of the persons composing it as well as from that of any other legal entity to which it may be related. As a general rule, a corporation may not be made to answer for acts or liabilities of its stockholders or those of the legal entities to which it may be connected and vice versa. However, the veil of corporate fiction may be pierced when it is used as a shield to further an end subversive of justice; or for purposes that could not have been intended by the law that created it; or to defeat public convenience, justify wrong, protect fraud, or defend crime; or to perpetuate deception; or as an alter ego, adjunct or business conduit for the sole benefit of the stockholders. The general rule is that officers of a corporation are not personally liable for their official acts unless it is shown that they have exceeded their authority. Article 31 of the Corporation Code is in point Sec. 31. Liability of directors, trustees or officers. Directors or trustees who willfully and knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of gross negligence or bad faith in directing the affairs of the corporation or acquire any personal or pecuniary interest conflict with their duty as such directors, or trustees shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members and other persons . . . . On the basis hereof, petitioner Molina could not be held jointly and severally liable for any obligation which petitioner ARBC may be held accountable for, absent any proof of bad faith or malice on his part. Corollarily, it is also incorrect on the part of the Court of Appeals to conclude that there was a sufficient cause of action against Molina as to make him personally liable for his actuations as Vice President for Operations of ARBC. A cursory reading of the records of the instant case would reveal that Molina did not summarily withhold certain amounts from the payroll of TBSS. Instead, he enumerated instances which in his view were enough bases to do so. WHEREFORE, the PETITION is PARTIALLY GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 36489 affirming the 9 December 1994 Order of the Regional Trial Court-Br. 59, Makati City, which denied the Motion to Dismiss of petitioner Mark Molina is REVERSED and SET ASIDE. However, the assailed Decision of the appellate court in CA-G.R. SP No. 36330 affirming the 9 September 1994 Order of the Regional Trial Court-Br. 59, Makati City, granting TBS Security and Investigation Agency's Motion for Leave to File Amended and Supplemental Complaint is likewise AFFIRMED.

Topic: Distinguishing Characteristics of a Corporation 1. A corporation is an artificial being. #9 MALAYANG SAMAHAN NG MGA MANGGAGAWA SA M. GREENFIELD (MSMG-UWP), ET AL., vs. HON. CRESENCIO J. RAMOS, ET AL. G.R. No. 113907 FACTS: Before us is petitioners' motion for partial reconsideration of our decision dated February 28, 2000, the dispositive portion of which reads: "WHEREFORE, the petition is GRANTED; the decision of the National Labor Relations Commission in Case No. NCR-00-09-04199-89 is REVERSED and SET ASIDE; and the respondent company is hereby ordered to immediately reinstate the petitioners to their respective positions.XXX Petitioners allege that this Court committed patent and palpable error in holding the "the respondent company officials cannot be held personally liable for damages on account of employees' dismissal because the employer corporation has a personality separate and distinct from its officers who merely acted as its agents" whereas the records clearly established that respondent company officers Saul Tawil, Carlos T. Javelosa and Renato C. Puangco have caused the hasty, arbitrary and unlawful dismissal of petitioners from work; that as top officials of the respondent company who handed down the decision dismissing the petitioners, they are responsible for acts of unfair labor practice; that these respondent corporate officers should not be considered as mere agents of the company but the wrongdoers. Petitioners further contend that while the case was pending before the public respondents, the respondent company, in the early part of February 1990, began removing its machineries and equipment from its plant located at Merville Park, Paranaque and began diverting jobs intended for the regular employees to its sub-contractor/satellite branches; that the respondent company officials are also the officers and incorporators of these satellite companies as shown in their articles of incorporation and the general information sheet. They added that during their ocular inspection of the plant site of the respondent company, they found that the same is being used by other unnamed business entities also engaged in the manufacture of garments. Petitioners further claim that the respondent company no longer operates its plant site as M. Greenfield thus it will be very difficult for them to fully enforce and implement the court's decision. ISSUE: Whether or not the company officials could be held personally liable for damages on account of employees' dismissal HELD: Petitioners' contention that respondent company officials should be made personally liable for damages on account of petitioners' dismissal is not impressed with merit. A corporation is a juridical entity with legal personality separate and distinct from those acting for and in its behalf and, in general from the people comprising it. The rule is that obligations incurred by the corporation, acting through its directors, officers and employees are its sole liabilities. True, solidary liabilities may at times be incurred but only when exceptional circumstances warrant such as, generally, in the following cases: 1. When directors and trustees or, in appropriate cases, the officers of a corporation (a) Vote for or assent to patently unlawful acts of the corporation; (b) act in bad faith or with gross negligence in directing the corporate affairs; April 20, 2001 (wrong case: it must be the February 28, 2000 decision)

2. 3. 4.

are guilty of conflict of interest to the prejudice of the corporation, its stockholders or members, and other persons. When a director or officer has consented to the issuance of watered stocks or who, having knowledge thereof, did not forthwith file with the corporate secretary his written objection thereto. When a director, trustee or officer as contractually agreed or stipulated to hold himself personally and solidarily liable with the Corporation. When a director, trustee or officer is made, by specific provision of law, personally liable for his corporate action.

(c)

In labor cases, particularly, the Court has held corporate directors and officers solidarily liable with the corporation for the termination of employment of corporate employees done with malice or in bad faith. Bad faith or negligence is a question of fact and is evidentiary. It has been held that bad faith does not connote bad judgment or negligence; it imports a dishonest purpose or some moral obliquity and conscious doing of wrong; it means breach of known duty thru some motive or interest or ill will; it partakes of the nature of fraud. In the instant case, there is nothing substantial on record to show that respondent officers acted in patent bad faith or were guilty of gross negligence in terminating the services of petitioners so as to warrant personal liability. Petitioners' claim that the jobs intended for the respondent company's regular employees were diverted, to its satellite companies where the respondent company officers are holding key positions is not substantiated and was raised for the first time in this motion for reconsideration. Even assuming that the respondent company officials are also officers and incorporators of the satellite companies, such circumstance does not in itself amount to fraud. The documents attached to petitioners' motion for reconsideration show that these satellite companies were established prior to the filing of petitioners' complaint against private respondents with the Department of Labor and Employment on September 6, 1989 and that these corporations have different sets of incorporators aside from the respondent officers and are holding their principal offices at different locations. Substantial identity of incorporators between respondent company and these satellite companies does not necessarily imply fraud. In such a case, respondent company's corporate personality remains inviolable. Although there were earlier decisions of this Court in labor cases where corporate officers were held to be personally liable for the payment of wages and other money claims to its employees, we find those rulings inapplicable to this case. In those cases, a new corporation was created, owned by the same family, engaged in the same business and operating in the same compound, a situation which is not obtaining in the instant case. WHEREFORE, petitioners' motion for reconsideration is partially granted so as to include the names of employees listed in Annex "D" which petitioners inadvertently omitted in the caption of this case.

DIGEST from 4th year MALAYANG SAMAHAN NG MGA MANGGAGAWA SA GREENFIELD VS. RAMOS FACTS: Petitioner MSMG (local union) is an affiliate of the private respondent United Lumber & General Workers of the Philippines (ULGWP) referred to as the federation. The local union held a general membership meeting. Several union members failed to attend the meeting. The local union wrote respondent company a letter requesting it to deduct the union fines from wages/salaries of those union members who failed to attend the general membership meeting. The Federation wrote respondent company a letter advising the latter not to deduct the P50 fine from the salaries of the union members. Respondent company sent a reply to petitioner union request stating that it cannot deduct fines from the employees salary without going against certain laws. The federation advised respondent company of the expulsion of the 30 union officers and demanded their separation from employment pursuant to Union Security Clause. It was done by the respondent company. Petitioners filed a notice of strike. A total of 78 union shop stewards were placed under preventive suspension by respondent company. This prompted the union members to again stage a walkout & resulted in the official declaration of strike. Petitioners filed a verified complaint charging the private respondent of ULP. Respondent company notified its employees of a temporary shutdown in operations. LABOR ARBITER: It dismissed the complaint as it found the termination valid in compliance with the Union Security Clauses of CBA. FIRST DIVISION affirmed. ISSUE: Whether or not respondent company was justified in dismissing petitioner employees merely upon the labor federations demand for the enforcement of the union security clause embodied in their CBA HELD: Although the Union Security Clauses embodied in the CBA may be validly enforced and dismissals pursuant thereto may likewise be valid, this does not erode the fundamental requirement of due process. An employer cannot rely merely upon a labor federations allegations in terminating union officers expelled by the federation & in violation of its Constitution and By-Lawsthe company must also inquire into the cause of the expulsion & whether or not the federation had sufficient grounds to effect the same.

Company officials cannot be help personally liable for the damages on account of the employees dismissal because the employer corporation has a personality separate & distinct from its officers who

Topic: Distinguishing Characteristics of a Corporation 1. A corporation is an artificial being. #10 MAGALING vs. ONG G.R. 173333 FACTS: Respondent Peter Ong (Ong) instituted with the RTC a Complaint for the collection of the sum of P389,000.00, with interest, attorneys fees and costs of suit, with prayer for issuance of a writ of preliminary attachment against the spouses Reynaldo Magaling and Lucila Magaling (Spouses Magaling) and Termo Loans & Credit Corporation (Termo Loans). The Complaint alleged that: 3. Defendants Sps. Reynaldo Magaling and Lucila Magaling are the controlling stockholders/owners of Thermo (sic) Loans and Credit Corp. and had used the corporation as mere alter ego or adjunct to evade the payment of valid obligation; 4. On or about December 1994, defendant Reynaldo Magaling, (sic) approached plaintiff in his store at Lipa City and induced him to lend him money and/or his company Thermo (sic) Loans and Credit Corp. with undertaking to pay interest at the rate of two and a half (2 %) percent per month. Defendant gave assurance that he and his company Thermo (sic) Loans and Credit Corp. will be able to pay the loan. Without the assurance plaintiff would not have lent the money; 5. Based on the assurance and representation of Reynaldo Magaling, Peter Ong extended loan to defendants. As of September 1997, the principal loan extended to defendants stands at P350,000.00. The interest thereon computed at 2 % per month is P8,750.00 per month; 6. In acknowledgment of the loan, on or about September 1997, defendants issued and tendered to plaintiff series of postdated checks. It was alleged further that Reynaldo Magaling, as President of Termo Loans, together with the corporations treasurer, a certain Mrs. L. Rosita, signed a Promissory Note in favor of Ong for the amount of P300,000.00 plus a monthly interest of 2.5%. Because of the failure of Termo Loans to pay its outstanding obligation despite demand, Ong filed the above-mentioned complaint praying that Spouses Magaling and Termo Loans be ordered to pay, jointly and severally, the principal amount of P389,000.00, plus interest, attorneys fees and costs of suit. The RTC promulgated the first of two decisions in this case. Ruling in favor of Ong, and against Termo Loans. However, On 5 February 2001, in complete contrast to its first decision, the RTC promulgated its second decision holding the Spouses Magaling free and clear of any obligation or liability with respect to the sum of money claimed by Ong. The trial court ruled in this wise: Records show that the subject obligation is the obligation of defendant corporation. The Non-negotiable Promissory Note No. 551 dated November 25, 1994 (Exh. B, p. 3) evidencing plaintiffs money placement belongs to/or is owned by defendant Thermo (sic) Loans and Credit Corporation. Defendant Reynaldo Magaling only signed said Promissory Note in his capacity as President of the corporation. Even plaintiffs documentary evidence shows that the obligation subject matter of the instant case is a corporate one for which the August 13, 2008

stockholders and officers of Thermo (sic) Loans and Credit Corporation are not personally answerable. For being its President, defendant Magalings act of convincing the plaintiff in investing money with the corporation granting without admitting it to be true is an act in usual course of business of said corporation. Thus, Thermo (sic) Loans and Credit Corporation has a personality separate and distinct from that of Reynaldo Magaling who happens to be only a stockholder thereof and president at that time. Furthermore, the Planters Development Bank Checks (Exh. A A-3) which were allegedly issued by defendant Reynaldo Magaling to herein plaintiff were corporate checks under the account name of Thermo (sic) Loans and Credit Corporation with defendant Reynaldo Magaling not even a signatory thereof. The appellate court reversed and set aside the ruling of the RTC. The Court of Appeals, in reversing the 5 February 2001 Decision of the RTC, found that the general rule that corporate officers cannot be held personally liable for corporate debt when they act in good faith and within the scope of their authority in executing a contract for and in behalf of the corporation, cannot apply to the spouses Magaling. The Court of Appeals pierced the veil of corporate fiction and held the spouses Magaling solidarily liable with Termo Loans for the corporate obligations of the latter since it found that Reynaldo Magaling was grossly negligent in managing the affairs of the said corporation. ISSUE: Whether or not the Spouses Magaling could be held equally liable with Termo Loans with regard to the financial liability of the latter. HELD: The petition is not meritorious. It is basic that a corporation is a juridical entity with legal personality separate and distinct from those acting for and in its behalf and, in general, from the people comprising it. The general rule is that obligations incurred by the corporation, acting through its directors, officers and employees, are its sole liabilities, and vice versa. There are times, however, when solidary liabilities may be incurred and the veil of corporate fiction may be pierced. Exceptional circumstances warranting such disregard of a separate personality are summarized as follows: 1. (a) (b) When directors and trustees or, in appropriate case, the officers of a corporation: vote for or assent to patently unlawful acts of the corporation; act in bad faith or with gross negligence in directing the corporate affairs;

(c) are guilty of conflict of interest to the prejudice of the corporation, its stockholders or members, and other persons; 2. When a director or officer has consented to the issuance of watered down stocks or who, having knowledge thereof, did not forthwith file with the corporate secretary his written objection thereto; 3. When a director, trustee or officer has contractually agreed or stipulated to hold himself personally and solidarily liable with the corporation; or 4. When a director, trustee or officer is made, by specific provision of law, personally liable for his corporate action.

In making the Spouses Magaling co-defendants of Termo Loans, Ong alleged in his Complaint for Sum of Money filed with the RTC that the spouses Reynaldo Magaling and Lucia Magaling were the controlling stockholders and/or owners of Termo Loans, and that they had used the corporation to evade the payment of a valid obligation. The appellate court eventually found the Spouses Magaling equally liable with Termo Loans for the sum of money sought to be collected by Ong. As explained above, to hold a director, a trustee or an officer personally liable for the debts of the corporation and, thus, pierce the veil of corporate fiction, bad faith or gross negligence by the director, trustee or officer in directing the corporate affairs must be established clearly and convincingly. Bad faith is a question of fact and is evidentiary. Bad faith does not connote bad judgment or negligence. It imports a dishonest purpose or some moral obliquity and conscious wrongdoing. It means breach of a known duty through some ill motive or interest. It partakes of the nature of fraud. In the present case, there is nothing substantial on record to show that Reynaldo Magaling, as President of Termo Loans, has, indeed, acted in bad faith in inviting Ong to invest in Termo Loans and/or in obtaining a loan from Ong for said corporation in order to warrant his personal liability. From all indications, the proceeds of the investment and/or loan were indeed utilized by Termo Loans. Likewise, bad faith does not arise just because a corporation fails to pay its obligations, because the inability to pay ones obligation is not synonymous with fraudulent intent not to honor the obligations. The foregoing discussion notwithstanding, this Court still cannot totally absolve Reynaldo Magaling from any liability considering his gross negligence in directing the affairs of Termo Loans; thus, he must be made personally liable for the debt of Termo Loans to Ong. In order to pierce the veil of corporate fiction, for reasons of negligence by the director, trustee or officer in the conduct of the transactions of the corporation, such negligence must be gross. Gross negligence is one that is characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected; and must be established by clear and convincing evidence. Parenthetically, gross or willful negligence could amount to bad faith. Reynaldo Magalings gross negligence became apparent, undeniable and proven during the course of the proceedings in the trial court. Reynaldo Magaling was the lone witness presented in court to belie the claim of Ong. On cross-examination, he (Reynaldo Magaling) clearly and plainly shed light on how Termo Loans was run under his aegis. Accordingly, the Court of Appeals observed correctly when it succinctly stated that, [c]learly, Reynaldo Magaling was grossly negligent in directing the affairs of Thermo (sic) Loans without due regard to the plight of its investors and thus should be held jointly and severally liable for the corporate obligation of Thermo (sic) Loans to appellant Peter Ong. WHEREFORE, premises considered, the instant petition is DENIED.