Professional Documents
Culture Documents
SUMNDAD
vs.
HARRIGAN
Petitioner
raised
before
the
SC
a
petition
for
review
on
certiorari
G.R.
No.
132358
–
April
12,
2002
insisting
that
it
is
the
SEC
that
has
jurisdiction
by
virtue
of
Presidential
Decree
No.
902-‐A
(Reorganization
of
the
Securities
and
Exchange
FACTS:
Commission
with
Additional
Powers)
because
the
complaint
alludes
to
John
William
Harrigan
filed
a
complaint
for
collection
of
a
sum
of
fraud
committed
by
respondent
corporation,
and
the
complainant
is
a
money
against
respondent
Boracay
Beach
Hotel,
Inc.
(BBCHI)
with
the
stockholder
of
the
respondent
corporation.
RTC.
Harrigan
prayed
for
the
issuance
of
a
writ
of
preliminary
attachment
pending
the
hearing
of
the
case,
which
was
granted
by
the
Private
respondent,
on
the
other
hand,
maintains
that
jurisdiction
is
trial
court
after
he
posted
an
attachment
bond
of
P2M.
lodged
with
the
regular
courts,
it
being
a
simple
collection
case.
Harrigan
then
filed
an
amended
complaint
impleading
the
ISSUE:
management
committee
of
BBCHI
through
its
acting
chairman.
WON
the
SEC
has
jurisdiction
over
the
subject
matter
of
the
case?
Harrigan
stated
in
the
amended
complaint
that
respondent
corporation
disposed
of
and
continues
to
actually
dispose
of
corporate
HELD:
properties
and
funds
"in
fraud
of
its
creditors."
The
jurisdiction
of
courts
are
conferred
by
law
and
determined
by
the
allegations
in
the
complaint;
that
the
allegation
in
the
complaint
The
trial
court
admitted
the
amended
complaint
and
issued
an
seeking
the
collection
of
advances
or
loans
from
the
corporation
falls
amended
order
for
the
issuance
of
writ
of
attachment.
within
the
jurisdiction
of
the
RTC;
that
intra-‐corporate
disputes,
under
the
provision
of
RA
8799,
falls
within
the
jurisdiction
of
RTC
and
no
Petitioner
Mila
Yap
Sumndad
Petitioner,
claiming
ownership
of
the
longer
the
SEC.
property,
filed
an
urgent
motion
for
leave
to
intervene
either
as
plaintiff
or
defendant.
Trial
court
granted.
The
law
on
jurisdiction
of
the
SEC,
Section
5
of
PD
902-‐A,
states
that
in
addition
to
the
regulatory
and
adjudicative
functions
of
the
SEC
over
Instead
of
filing
an
answer,
petitioner
moved
to
dismiss
the
amended
corporations,
partnerships
and
other
forms
of
associations
registered
complaint
based
on:
(1)
forum
shopping;
(2)
lack
of
jurisdiction;
(3)
with
it
as
expressly
granted
under
the
existing
laws
and
decrees,
it
failure
to
state
a
cause
of
action;
and
(4)
litis
pendentia.
This
was
shall
have
original
and
exclusive
jurisdiction
to
hear
and
decide
cases
denied
by
the
RTC.
Thereafter,
Sumndad
filed
6
motions
for
additional
involving
devises
or
schemes
employed
by
or
any
acts
of
the
Board
of
time
to
file
an
answer.1Upon
motion
of
Harrigan,
petitioner
was
Directors,
business
associates,
its
officers
and
partners,
amounting
to
declared
in
default
for
failure
to
answer
within
the
reglementary
fraud
and
misrepresentation
which
may
be
detrimental
to
the
interest
period
and
the
trial
court
proceeded
with
the
ex-‐parte
presentation
of
of
the
public
and/or
to
the
stockholders,
partners,
members
of
evidence.
associations
or
organizations
registered
with
the
Commission.
Trial
court
ruled
in
favor
of
Harrigan
and
ordered
respondent
to
pay
It
should
be
noted
that
the
issue
has
become
moot
and
academic
P8M
plus
costs.
because
with
RA
8799,
Securities
Regulation
Code,
it
is
now
the
RTC
and
no
longer
the
SEC
that
has
jurisdiction.
Under
Section
5.2
of
RA
CA
dismissed
the
appeal.
8799,
original
and
exclusive
jurisdiction
to
hear
and
decide
cases
involving
intra-‐corporate
controversies
have
been
transferred
to
a
Filipino;
its
buyer
financing
facility
with
Banco
Filipino
has
been
court
of
general
jurisdiction
or
the
appropriate
RTC.
suspended
such
that
it
cannot
now
consummate
its
sales
transactions;
the
libelous
circulars
made
by
the
Central
Bank
to
banks
such
that
the
The
mere
use
of
the
phrase
"in
fraud
of
creditors"
does
not,
ipso
facto,
creditors
of
BF
Homes
have
begun
insisting
on
full
liquidation
under
throw
the
case
within
SEC's
jurisdiction.
The
amended
complaint
filed
pain
of
foreclosure
of
their
notes.
Such
receiver,
according
to
BF
by
Harrigan
does
not
sufficiently
allege
acts
amounting
to
fraud
and
Homes,
was
imperative
to
oversee
the
management
so
that
its
business
misrepresentation
committed
by
respondent
corporation.
may
not
be
paralyzed
and
the
interest
of
the
creditors
may
not
be
prejudiced.
It
further
argued
that
rehabilitation
was
feasible;
Fraud
is
defined
as
a
generic
term
embracing
all
multifarious
means
otherwise,
in
view
of
the
extent
of
its
involvement
in
the
shelter
which
human
ingenuity
can
devise,
and
which
are
resorted
to
by
one
program
of
the
government
and
in
the
nation's
home
mortgage
individual
to
secure
an
advantage
over
another
by
false
suggestions
or
insurance
system,
which
has
a
secured
coverage
for
at
least
P900
M
of
by
suppression
of
truth
and
includes
all
surprise,
trick,
cunning,
[BF
Homes']
P1.5
B
liabilities,
not
only
[the]
creditors,
[buyers,
and
dissembling
and
any
unfair
way
by
which
another
is
cheated.
stockholders]
of
the
petitioner
corporation
may
suffer
but
the
public
as
well."
The
phrase
"in
fraud
of
creditors",
found
in
the
complaint,
can
only
mean,
"to
the
prejudice
of
creditors"
and
not
to
the
use
of
devises
or
SEC
subsequently
issued
its
Order
which
created
the
B.F.
Homes,
Inc.,
a
schemes
tantamount
to
fraud
and
misrepresentation
employed
by
the
Management
Committee;
Atty.
Orendain
as
Chairman.
Board
of
Directors,
business
associates
or
its
officers
and
partners
to
divert
corporate
funds
and
assets
for
personal
use,
as
contemplated
in
Thereafter,
SEC
ordered
the
appointment
of
a
rehabilitation
receiver,
Section
5
of
PD
902-‐A.
FBO
Management
Networks,
Inc.,
with
petitioner
Orendain
as
Chairman
to
prevent
paralyzation
of
BF
Homes'
business
operations.
OREDAIN
vs.
BF
HOMES
In
1993,
a
Deed
of
Absolute
Sale
was
executed
by
and
between
BF
G.R.
No.
146313
–
October
31,
2006
Homes
—
represented
by
Orendain
—
as
absolute
and
registered
owner,
and
the
Local
Superior
of
the
Franciscan
Sisters
of
the
FACTS:
Immaculate
Phils.,
Inc.
(LSFSIPI)
over
a
parcel
of
land
situated
at
BF
Homes,
Inc.,
domestic
corporation
and
organized
primarily
for
Barangay
Pasong
Papaya,
BF
International,
for
PhP
19,500,000.
realty
business,
avail
itself
of
financial
assistance
from
various
sources
to
enable
it
to
buy
properties
and
convert
them
into
residential
Meanwhile,
SEC
hearing
panel
released
an
Omnibus
Order
which
subdivisions.
This
resulted
in
its
incurring
liabilities
amounting
to
PhP
confirmed
the
Closing
Report
submitted
by
Orendain.
Consequently,
1,542,805,068.23.
On
the
other
hand,
it
was
able
to
acquire
properties
receiver
Orendain
was
relieved
of
his
duties
and
responsibilities.
and
assets
worth
PhP
2,482,843,358.81,
which,
if
liquidated,
were
more
than
enough
to
pay
all
its
creditors.
SEC
denied
BF
Homes'
and
the
intervenor-‐derivative
Rodriguez's
motions
for
reconsideration.
Despite
its
solvent
status,
BF
Homes
filed
a
Petition
for
Rehabilitation
and
for
Declaration
in
a
State
of
Suspension
of
Payments
under
PD
No.
Hence,
BF
Homes
filed
a
Complaint
before
the
Las
Piñas
RTC
against
1758
before
SEC
because
Central
Bank
tried
to
take
over
Banco
LSFSIPI
and
Orendain
for
reconveyance
of
the
property
—
alleging
that
the
LSFSIPI
transacted
with
Orendain
in
his
individual
capacity
and
corporation,
partnership,
or
association
of
therefore,
neither
FBO
Management,
Inc.
nor
Orendain
had
title
to
the
which
they
are
stockholders,
members
or
property
transferred.
Moreover,
BF
Homes
averred
that
the
selling
associates,
respectively;
and
between
such
price
was
grossly
inadequate
or
insufficient
amounting
to
fraud
and
corporation,
partnership
or
association
and
conspiracy
with
the
LSFSIPI.
the
state
insofar
as
it
concerns
their
individual
franchise
or
right
to
exist
as
such
LSFSIPI
filed
its
Answer
claiming
that
complaint
was
barred
by
a
prior
entity.
judgment
of
a
tribunal
with
sufficient
jurisdiction
over
the
matter,
and
BF
Homes
was
liable
for
forum
shopping,
and
BF
Homes
could
not
However,
Section
5
of
PD
No.
902-‐A
does
not
apply
in
the
instant
case.
question
its
own
acts
by
way
of
estoppel.
Orendain
filed
a
Motion
to
The
LSFSIPI
is
neither
an
officer
nor
a
stockholder
of
BF
Homes,
and
Dismiss
stating
that
RTC
had
no
jurisdiction.
this
case
does
not
involve
intra-‐corporate
proceedings.
In
addition,
the
seller,
Orendain,
is
being
sued
in
his
individual
capacity
for
the
RTC
Las
Piñas
denied
the
motion
to
dismiss
for
lack
of
merit.
unauthorized
sale
of
the
property
in
controversy.
Hence,
no
cogent
reason
to
sustain
petitioner's
manifestation
that
the
resolution
of
the
However,
SEC
rendered
its
Order
affirming
the
hearing
panel’s
instant
controversy
depends
on
the
ratification
by
the
SEC
of
the
acts
decision.
of
its
agent
or
the
receiver
because
the
act
of
Orendain
was
allegedly
not
within
the
scope
of
his
authority
as
receiver.
CA
held
that
the
action
for
reconveyance
filed
by
BF
Homes
was
within
the
exclusive
jurisdiction
of
the
RTC.
LSFSIPI
was
not
a
party
to
the
In
addition,
jurisdiction
over
the
case
for
reconveyance
is
clearly
said
case
and
did
not
have
any
intra-‐corporate
relation
with
petitioner
vested
in
the
RTC
as
provided
in
paragraph
(2),
Section
19,
B.P.
Blg.
at
the
time
of
the
sale.
The
SEC
could
not
acquire
jurisdiction
over
the
129.
Franciscan
Sisters;
while
petitioner
Orendain
was
sued
in
his
Moreover,
the
instant
petition
has
been
rendered
moot
and
academic
individual
capacity
and
not
in
his
official
capacity
as
receiver.
by
the
passage
of
RA
8799
or
The
Securities
Regulation
Code
which
took
effect
on
August
8,
2000.
ISSUE:
WON
action
for
reconveyance
involve
intra
corporate
dispute
and
thus
Section
5.2
of
RA
8799
transferred
exclusive
and
original
jurisdiction
within
the
SEC’s
jurisdiction.
of
the
SEC
over
actions
involving
intra-‐corporate
controversies
to
the
courts
of
general
jurisdiction
or
the
appropriate
RTC.
In
the
transition,
HELD:
all
intra-‐corporate
cases
pending
in
the
SEC,
which
were
not
ripe
for
No.
In
1996,
Section
5
of
PD
No.
902-‐A,
which
was
approved
on
March
adjudication
as
of
August
8,
2000,
were
turned
over
to
the
RTC.
Cases
11,
1976,
was
still
the
law
in
force
—
whereby
the
SEC
still
had
original
under
Section
5,
PD
902-‐A,
which
now
fall
within
the
RTC's
and
exclusive
jurisdiction
to
hear
and
decide
cases
involving:
jurisdiction,
as
follows:
b)controversies
arising
out
of
intra-‐corporate
or
(a)Devices
or
schemes
employed
by
or
any
acts
of
partnership
relations,
between
and
among
the
board
of
directors,
business
associates,
stockholders,
members,
or
associates;
its
officers
or
partners,
amounting
to
fraud
between
any
and/or
all
of
them
and
the
and
misrepresentation
which
may
be
detrimental
to
the
interest
of
the
public
upon
the
disclosed
facts
(emphasis
supplied
and
citation
omitted)."
It
and/or
stockholders,
partners,
members
of
is
apparent
that
the
SEC
order
in
question
merely
acknowledged
the
associations
registered
with
the
Closing
Report
for
inclusion
in
the
records
of
the
case.
It
did
not,
Commission;
however,
pass
upon
the
merits
and
veracity
of
the
report's
contents.
As
(b)Controversies
arising
out
of
intra-‐corporate
or
such,
it
cannot,
in
any
wise,
be
considered
as
an
adjudication
of
the
partnership
relations,
between
and
among
rights
and
obligations
of
the
parties
relating
to
the
subject
matter
of
stockholders,
members,
or
associates;
the
action.
Likewise,
it
appears
that
between
the
first
and
second
between
any
or
all
of
them
and
the
actions,
there
was
no
identity
of
parties,
of
subject
matter,
and
of
cause
corporation,
partnership
or
association
and
of
action.
Hence,
res
judicata
does
not
apply
in
the
instant
case.
the
State
insofar
as
it
concerns
their
individual
franchise
or
right
as
such
entity;
VELARDE
vs.
LOPEZ
(c)Controversies
in
the
election
or
appointment
of
G.R.
No.
153886
–
January
14,
2004
directors,
trustees,
officers
or
managers
of
such
corporations,
partnerships,
or
FACTS:
associations;
On
January
6,
1997,
Eugenio
Lopez
Jr.,
then
President
of
respondent
(d)Petitioners
of
corporations,
partnerships
or
Lopez,
Inc.,
as
LENDER,
and
petitioner
Mel
Velarde,
then
General
associations
to
be
declared
in
the
state
of
Manager
of
Sky
Vision
Corporation
(Sky
Vision),
a
subsidiary
of
suspension
of
payment
in
cases
where
the
respondent,
as
BORROWER,
forged
a
notarized
loan
agreement
overing
corporation,
partnership
or
association
the
amount
of
ten
million
(P10,000,000.00)
pesos.
The
agreement
possesses
sufficient
property
to
cover
all
its
expressly
provided
for,
among
other
things,
the
manner
of
payment
debts
but
foresees
the
impossibility
of
and
the
circumstances
constituting
default
which
would
give
the
meeting
them
when
they
fall
due
or
in
lender
the
right
to
declare
the
loan
together
with
accrued
interest
cases
where
the
corporation,
partnership
immediately
due
and
payable.
or
association
has
no
sufficient
assets
to
cover
its
liabilities
but
is
under
the
As
petitioner
failed
to
pay
the
installments
as
they
became
due,
management
of
a
rehabilitation
receiver
or
respondent,
apparently
in
answer
to
a
proposal
of
petitioner
management
committee
created
pursuant
respecting
the
settlement
of
the
loan,
advised
him
by
letter
in
Sky
to
this
Decree.
Vision
in
partial
settlement
of
his
loan
after
he
settles
his
accountabilities
to
the
latter
and
gives
his
written
instructions
to
it.
On
Res
Judicata
(Petitioner
claimed
the
action
be
dismissed
based
Petitioner
protested
the
computation
he
asserting
that
the
imputed
on
res
judicata):
unliquidated
advances
from
Sky
Vision
had
already
been
properly
liquidated.
While
the
said
SEC
order
denied
the
motion
for
intervention
filed
by
Rodriguez,
it
did
not,
however,
resolve
the
issues
raised
in
the
motion
Respondent
filed
a
complaint
for
collection
of
sum
of
money
with
on
the
merits.
A
judgment
is
"on
the
merits
when
it
amounts
to
a
legal
damages
at
the
Regional
Trial
Court
(RTC)
of
Pasig
City
against
declaration
of
the
respective
rights
and
duties
of
the
parties
based
petitioner,
alleging
that
petitioner
violated
the
above-‐quoted
Section
6
of
the
loan
agreement
as
he
failed
to
put
up
the
needed
collateral
for
ISSUE:
the
loan
and
pay
the
installments
as
they
became
due,
and
that
despite
Whether
or
not
the
defendant
in
a
complaint
for
collection
of
sum
of
his
receipt
of
letters
of
demand
dated
December
1,
1997,
he
refused
to
money
can
raise
a
counterclaim
for
retirement
benefits,
unpaid
pay.
salaries
and
incentives,
and
other
benefits
arising
from
services
rendered
by
him
in
a
subsidiary
of
the
plaintiff
corporation.
In
his
answer,
petitioner
alleged
that
the
loan
agreement
did
not
reflect
his
true
agreement
with
respondent,
it
being
merely
a
“cover
HELD:
document”
to
evidence
the
reward
to
him
of
ten
million
pesos
for
his
At
the
heart
of
petitioner’s
counterclaim
is
his
alleged
forced
loyalty
and
excellent
performance
as
as
General
Manager
of
Sky
Vision
retirement
which
is
also
the
basis
of
his
claim
for,
among
other
things,
and
that
the
payment,
if
any
was
expected,
was
in
the
form
of
unpaid
salaries,
unpaid
incentives,
reasonable
return
on
the
stock
continued
service;
and
that
it
was
when
he
was
compelled
by
ownership
plan,
and
other
benefits
from
a
subsidiary
company
of
the
respondent
to
retire
that
the
form
of
payment
agreed
upon
was
respondent.
rendered
impossible,
prompting
the
late
Eugenio
Lopez,
Jr.
to
agree
that
his
retirement
benefits
from
Sky
Vision
would
instead
be
applied
Section
5(c)
of
P.D.
902-‐A
(as
amended
by
R.A.
8799,
the
Securities
to
the
loan.
Regulation
Code)
applies
to
a
corporate
officer’s
dismissal.
For
a
corporate
officer’s
dismissal
is
always
a
corporate
act
and/or
an
intra-‐
Respondent
filed
a
manifestation
and
a
motion
to
dismiss
the
corporate
controversy
and
that
its
nature
is
not
altered
by
the
reason
counterclaim
for
want
of
jurisdiction
which
drew
petitioner
to
assert
or
wisdom
which
the
Board
of
Directors
may
have
in
taking
such
in
his
comment
and
opposition
thereto
that
the
veil
of
corporate
fiction
action.
must
be
pierced
to
hold
respondent
liable
for
his
counterclaims.
With
regard
to
petitioner’s
claim
for
unpaid
salaries,
unpaid
share
in
By
Order
of
January
3,
2000,
Branch
155
of
the
RTC
of
Pasig
denied
net
income,
reasonable
return
on
the
stock
ownership
plan
and
other
respondent’s
motion
to
dismiss
the
counterclaim
on
the
following
benefits
for
services
rendered
to
Sky
Vision,
jurisdiction
thereon
premises:
A
counterclaim
being
essentially
a
complaint,
the
principle
pertains
to
the
Securities
Exchange
Commission
even
if
the
complaint
that
a
motion
to
dismiss
hypothetically
admits
the
allegations
of
the
by
a
corporate
officer
includes
money
claims
since
such
claims
are
complaint
is
applicable;
the
counterclaim
is
compulsory,
hence,
within
actually
part
of
the
prerequisite
of
his
position
and,
therefore,
its
jurisdiction;
and
there
is
identity
of
interest
between
respondent
interlinked
with
his
relations
with
the
corporation.
e
question
of
and
Sky
Vision
to
merit
the
piercing
of
the
veil
of
corporate
fiction.
remuneration
involving
a
person
who
is
not
a
mere
employee
but
a
stockholder
and
officer
of
the
corporation
is
not
a
simple
labor
Respondent
iled
a
Petition
for
Certiorari
at
the
Court
of
Appeals
which
problem
but
a
matter
that
comes
within
the
area
of
corporate
affairs
held
that
respondent
is
not
the
real
party-‐in-‐interest
on
the
and
management,
and
is
in
fact
a
corporate
controversy
in
counterclaim
and
that
there
was
failure
to
show
the
presence
of
any
of
contemplation
of
the
Corporation
Code.
the
circumstances
to
justify
the
application
of
the
principle
of
“piercing
the
veil
of
corporate
fiction.
It
cannot
be
gainsaid
that
a
subsidiary
has
an
independent
and
separate
juridical
personality,
distinct
from
that
of
its
parent
company,
hence,
any
claim
or
suit
against
the
latter
does
not
bind
the
former
and
vice
versa.
As
for
the
trial
court’s
ruling
that
the
agreement
to
set-‐off
is
an
amendment
of
the
loan
agreement
resulting
to
an
identity
of
interest
Petitioner
argues
nevertheless
that
jurisdiction
over
the
subsidiary
is
between
respondent
and
Sky
Vision
and,
therefore,
sufficient
to
pierce
justified
by
piercing
the
veil
of
corporate
fiction.
Piercing
the
veil
of
the
veil
of
corporate
fiction,
it
is
untenable.
The
abovequoted
letter
is
corporate
fiction
is
warranted,
however,
only
in
cases
when
the
clear
that,
to
effect
a
set-‐off,
it
is
a
condition
sine
qua
non
that
the
separate
legal
entity
is
used
to
defeat
public
convenience,
justify
approval
thereof
by
“Sky/Central”
must
be
obtained,
and
that
wrong,
protect
fraud,
or
defend
crime,
such
that
in
the
case
of
two
petitioner
liquidate
his
advances
from
Sky
Vision.
These
conditions
corporations,
the
law
will
regard
the
corporations
as
merged
into
one.
hardly
manifest
that
respondent
possessed
that
degree
of
control
over
The
rationale
behind
piercing
a
corporation’s
identity
is
to
remove
the
Sky
Vision
as
to
make
the
latter
its
mere
instrumentality,
agency
or
barrier
between
the
corporation
from
the
persons
comprising
it
to
adjunct.
thwart
the
fraudulent
and
illegal
schemes
of
those
who
use
the
corporate
personality
as
a
shield
for
undertaking
certain
proscribed
TIMESHARE
REALTY
VS.
CA
activities.
G.R.
No.
158941.
February
11,
2008
In
applying
the
doctrine
of
piercing
the
veil
of
corporate
fiction,
the
FACTS:
following
requisites
must
be
established:
(1)
control,
not
merely
On
October
6,
1996,
Timeshare
Realty
sold
to
Lao
and
Cortez,
one
majority
or
complete
stock
control;
(2)
such
control
must
have
been
timeshare
(security)
of
Laguna
de
Boracay
for
US$7,500.00
payable
in
used
by
the
defendant
to
commit
fraud
or
wrong,
to
perpetuate
the
eight
months
and
fully
paid
by
the
respondents.
violation
of
a
statutory
or
other
positive
legal
duty,
or
dishonest
acts
in
contravention
of
plaintiff’s
legal
rights;
and
(3)
the
aforesaid
control
However,
on
February
1998,
the
SEC
issued
a
resolution
declaring
that
and
breach
of
duty
must
proximately
cause
the
injury
or
unjust
loss
Timeshare
has
no
authority
to
sell
securities,
like
timeshares,
prior
to
complained
of.
February
11,
1998.
It
further
stated
in
the
resolution/order
that
the
Registration
Statement
of
petitioner
became
effective
only
on
February
Nowhere,
however,
in
the
pleadings
and
other
records
of
the
case
can
11,
1998.
It
also
held
that
the
30
days
within
which
a
purchaser
may
it
be
gathered
that
respondent
has
complete
control
over
Sky
Vision,
exercise
the
option
to
unilaterally
rescind
the
purchase
agreement
and
not
only
of
finances
but
of
policy
and
business
practice
in
respect
to
receive
the
refund
of
money
paid
applies
to
all
purchase
agreements
the
transaction
attacked,
so
that
Sky
Vision
had
at
the
time
of
the
entered
into
by
petitioner
prior
to
the
effectivity
of
the
Registration
transaction
no
separate
mind,
will
or
existence
of
its
own.
The
Statement.
existence
of
interlocking
directors,
corporate
officers
and
shareholders
is
not
enough
justification
to
pierce
the
veil
of
corporate
fiction
in
the
On
March
30,
1998,
Lao
and
Cortez
wrote
petitioner
demanding
their
absence
of
fraud
or
other
public
policy
considerations.
This
Court
is
right
and
option
to
cancel
their
Contract,
as
it
appears
that
Laguna
de
thus
not
convinced
that
the
real
party-‐in-‐interest
with
regard
to
the
Boracay
is
selling
said
shares
without
license
or
authority
from
the
SEC
counterclaim
for
damages
arising
from
the
alleged
tortuous
manner
by
but
Timeshare
Realty
failed
and
refused
to
refund
or
pay
respondents.
which
petitioner
was
forced
to
retire
as
General
Manager
of
Sky
Vision
is
respondent.
As
a
result,
Respondents
Lao
and
Cortez
directly
filed
with
SEC
En
Commission,
of
a
sworn
registration
Banc
a
complaint
against
Timeshare
and
the
Members
of
its
Board
of
statement
with
respect
to
such
securities,
Directors
for
violation
of
Section
4
of
B.P.
178
(The
Revised
Securities
containing
or
having
attached
thereto,
the
Act).
following:
SEC
en
Banc:
Rendered
a
decision
in
favor
of
Lao
and
Cortez.
MR
xxx
xxx
xxx
denied.
(36)
Unless
previously
filed
and
registered
with
the
Commission
and
brought
up
to
date:
CA:
Ruled
in
favor
of
Lao
and
Cortez
due
to
failure
of
Timeshare
to
file
their
Petition
for
Review
under
the
15-‐day
period
as
provided
by
Rule
(a)
A
copy
of
its
articles
of
incorporation
with
43,
Section
4
of
the
1997
Revised
Rules
of
Civil
Procedure.
MR
denied.
all
amendments
thereof
and
its
existing
by-‐
Timeshare’s
contention:
laws
or
instruments
corresponding
thereto,
At
the
time
it
entered
into
a
timeshare
purchase
agreement
with
whatever
the
name,
if
the
issuer
be
a
respondents
on
October
6,
1996,
it
already
possessed
the
requisite
corporation.
license
and
marketing
agreement
to
engage
in
such
transactions,
as
evidenced
by
its
registration
with
the
SEC
as
a
corporation.
Further,
it
Prior
to
fulfillment
of
all
the
other
requirements
of
Section
8,
argues
that
when
it
was
registered
and
authorized
by
the
SEC
as
petitioner
is
absolutely
proscribed
under
Section
4
from
broker
of
securities
—
such
as
the
Laguna
de
Boracay
timeshares
—
dealing
with
unregistered
timeshares,
thus:
this
had
the
effect
of
ratifying
its
October
6,
1996
purchase
agreement
with
respondents,
and
removing
any
cause
for
the
latter
to
rescind
it.
Section
4.
Requirement
of
registration
of
securities.
—
(a)
No
securities,
except
of
a
class
exempt
under
any
ISSUE:
of
the
provisions
of
Section
five
hereof
or
unless
sold
Whether
or
not
the
mere
registration
of
Timeshare
as
a
in
any
transaction
exempt
under
any
of
the
provisions
corporation
already
authorizes
it
to
deal
with
unregistered
timeshares.
of
Section
six
hereof,
shall
be
sold
or
offered
for
sale
or
distribution
to
the
public
within
the
RULING:
Philippines
unless
such
securities
shall
have
been
NO.
registered
and
permitted
to
be
sold
as
hereinafter
provided.
(1) Under
BP
178,
Corporate
registration
is
just
one
of
several
requirements
before
it
may
deal
with
timeshares:
(2) Timeshare
did
not
resort
to
any
other
administrative
remedy
Section
8.
Procedure
for
registration.
—
(a)
against
said
ruling
(the
SEC,
through
Director
Linda
A.
Daoang,
All
securities
required
to
be
registered
under
already
rendered
a
ruling
on
the
effectivity
of
the
registration
subsection
(a)
of
Section
four
of
this
Act
shall
statement
of
petitioner),
such
as
by
questioning
the
same
be
registered
through
the
filing
by
the
issuer
before
the
SEC
En
Banc.
Having
failed
to
exhaust
the
or
by
any
dealer
or
underwriter
interested
in
the
sale
thereof,
in
the
office
of
the
administrative
remedies
available
to
it,
petitioner
is
already
Proxy/Information
Statement
in
connection
with
its
annual
meeting
bound
by
said
ruling
and
can
no
longer
question
the
same.
held
on
May
23,
1997,
in
violation
of
respondent
Commission's
'Full
Material
Disclosure
Rule.
UNION
BANK
OF
THE
PHILIPPINES
VS.
SEC
G.R.
No.
138949
-‐
June
6,
2001.
Failing
to
respond
to
the
aforesaid
communication,
petitioner
was
given
a
'2nd
Show
Cause
with
Assessment'
by
respondent
Commission
FACTS:
on
July
21,
1997.
Petitioner
was
then
assessed
a
fine
of
P50,000.00
plus
Petitioner,
through
its
General
Counsel
and
Corporate
Secretary,
P500.00
for
every
day
that
the
report
[was]
not
filed,
or
a
total
of
sought
the
opinion
of
Chairman
Perfecto
Yasay,
Jr.
of
respondent
P91,000.00
as
of
July
21,
1997.
Petitioner
was
likewise
advised
by
Commission
as
to
the
applicability
and
coverage
of
the
Full
Material
respondent
Commission
to
submit
the
required
reports
and
settle
the
Disclosure
Rule
on
banks,
contending
that
said
rules,
in
effect,
amend
assessment,
or
submit
the
case
to
a
formal
hearing.
Section
5
(a)
(3)
of
the
Revised
Securities
Act
which
exempts
securities
issued
or
guaranteed
by
banking
institutions
from
the
registration
Petitioner
then
elevated
its
case
to
the
Court
of
Appeals
which
affirmed
requirement
provided
by
Section
4
of
the
same
Act.
the
questioned
Orders.
In
reply
thereto,
Chairman
Yasay,
in
a
letter
dated
April
8,
1997,
ISSUE:
informed
petitioner
that
while
the
requirements
of
registration
do
not
Whether
or
not
petitioner
is
required
to
comply
with
the
respondent
apply
to
securities
of
banks
which
are
exempt
under
Section
5(a)
(3)
of
SEC's
full
disclosure
rules.
the
Revised
Securities
Act,
however,
banks
with
a
class
of
securities
listed
for
trading
on
the
Philippine
Stock
Exchange,
Inc.
are
covered
by
HELD:
certain
Revised
Securities
Act
Rules
governing
the
filing
of
various
Yes.
Because
its
securities
are
exempt
from
the
registration
reports
with
respondent
Commission,
i.e.,
(1)
Rule
11(a)-‐1
requiring
requirements
under
Section
5(a)(3)
of
the
Revised
Securities
Act,
the
filing
of
Annual,
Quarterly,
Current,
Predecessor
and
Successor
petitioner
argues
that
it
is
not
covered
by
RSA
Implementing
Rule
Reports;
(2)
Rule
34-‐(a)-‐1
requiring
submission
of
Proxy
Statements;
11(a)-‐1,
which
requires
the
filing
of
annual,
quarterly,
current
and
(3)
Rule
34-‐(c)-‐1
requiring
submission
of
Information
Statements,
predecessor
and
successor
reports;
Rule
34(a)-‐1
which
mandates
the
among
others.
filing
of
proxy
statements
and
forms
of
proxy;
and
Rule
34(c)-‐1,
which
obligates
the
submission
of
information
statements.
Respondent
Commission,
through
its
Money
Market
Operations
Department
Director,
wrote
petitioner,
reiterating
its
previous
position
We
do
not
agree.
Section
5(a)(3)
of
the
said
Act
reads:
that
petitioner
is
not
exempt
from
the
filing
of
certain
reports.
The
letter
further
stated
that
the
Revised
Securities
Act
Rule
11
(a)
"SECTION.
5.Exempt
Securities.
—
(a)
Except
as
expressly
provided,
requires
the
submission
of
reports
necessary
for
full,
fair
and
accurate
the
requirement
of
registration
under
subsection
(a)
of
Section
four
of
disclosure
to
the
investing
public,
and
not
the
registration
of
its
shares.
this
Act
shall
not
apply
to
any
of
the
following
classes
of
securities:
Respondent
Commission
wrote
petitioner,
enjoining
the
latter
to
show
xxx
xxx
xxx
cause
why
it
should
not
be
penalized
for
its
failure
to
submit
a
(3)Any
security
issued
or
guaranteed
by
any
banking
institution
requirements
embodied
in
the
assailed
Rules.
Petitioner,
as
a
authorized
to
do
business
in
the
Philippines,
the
business
of
which
is
bank,
is
primarily
subject
to
the
control
of
the
BSP;
and
as
a
substantially
confined
to
banking,
or
a
financial
institution
licensed
to
corporation
trading
its
securities
in
the
stock
market,
it
is
under
engage
in
quasi-‐banking,
and
is
supervised
by
the
Central
Bank."
the
supervision
of
the
SEC.
It
must
be
pointed
out
that
even
the
PSE
is
under
the
control
and
supervision
of
respondent.
14
There
This
provision
exempts
from
registration
the
securities
issued
by
is
no
over-‐supervision
here.
Each
regulating
authority
operates
banking
or
financial
institutions
mentioned
in
the
law.
Nowhere
does
it
within
the
sphere
of
its
powers.
That
stringent
requirements
are
state
or
even
imply
that
petitioner,
as
a
listed
corporation,
is
exempt
imposed
is
understandable,
considering
the
paramount
from
complying
with
the
reports
required
by
the
assailed
RSA
importance
given
to
the
interests
of
the
investing
public.
Implementing
Rules.
Worth
repeating
is
the
CA's
disquisition
on
the
matter,
which
we
quote:
Otherwise
stated,
the
mere
fact
that
in
regard
to
its
banking
functions,
petitioner
is
already
subject
to
the
supervision
of
the
"However,
the
exemption
from
the
registration
requirement
enjoyed
BSP
does
not
exempt
the
former
from
reasonable
disclosure
by
petitioner
does
not
necessarily
connote
that
[it
is]
exempted
from
regulations
issued
by
the
SEC.
These
regulations
are
meant
to
the
other
reportorial
requirements.
Having
confined
the
exemption
assure
full,
fair
and
accurate
disclosure
of
information
for
the
enjoyed
by
petitioner
merely
to
the
initial
requirement
of
registration
protection
of
investors
in
the
stock
market.
Imposing
such
of
securities
for
public
offering,
and
not
[to]
the
subsequent
filing
of
regulations
is
a
function
within
the
jurisdiction
of
the
SEC.
Since
various
periodic
reports,
respondent
Commission,
as
the
regulatory
petitioner
opted
to
trade
its
shares
in
the
exchange,
then
it
must
agency,
is
able
to
exercise
its
power
of
supervision
and
control
over
abide
by
the
reasonable
rules
imposed
by
the
SEC.
corporations
and
over
the
securities
market
as
a
whole.
Otherwise,
the
objectives
of
the
'Full
Material
Disclosure'
policy
would
be
defeated
xxx
since
petitioner
corporation
and
its
dealings
would
be
totally
beyond
the
reach
of
respondent
Commission
and
the
investing
public."
WHEREFORE,
the
Petition
is
hereby
DENIED,
and
the
assailed
Decision
of
the
Court
of
Appeals
AFFIRMED.
Costs
against
petitioner.
It
must
be
emphasized
that
petitioner
is
a
commercial
banking
corporation
listed
in
the
stock
exchange.
Thus,
it
must
adhere
not
only
SO
ORDERED.
to
banking
and
other
allied
special
laws,
but
also
to
the
rules
promulgated
by
Respondent
SEC,
the
government
entity
tasked
not
ONAPAL
vs.
CA
only
with
the
enforcement
of
the
Revised
Securities
Act,
but
also
with
G.R.
No.
90707
–
February
1,
1993
the
supervision
of
all
corporations,
partnerships
or
associations
which
are
grantees
of
government-‐issued
primary
franchises
and/or
licenses
FACTS:
or
permits
to
operate
in
the
Philippines.
The
petitioner,
ONAPAL
Philippines
Commodities,
Inc.
is
a
duly
organized
and
existing
corporation,
licensed
as
commission
That
petitioner
is
under
the
supervision
of
the
Bangko
Sentral
ng
merchant/broker
by
the
SEC,
to
engage
in
commodity
futures
trading
Pilipinas
(BSP)
and
the
Philippine
Stock
Exchange
(PSE)
does
not
in
Cebu
City.
On
April
27,
1983,
petitioner
and
private
respondent,
exempt
it
from
complying
with
the
continuing
disclosure
Susan
Chua
concluded
a
"Trading
Contract".
Like
all
customers
of
the
and
Regulations
on
Commodity
Futures
Trading
issued
by
the
or
subject
is
placed
in
the
actual
or
constructive
possession
or
control
Securities
and
Exchange
Commission
(SEC)
and
approved
by
of
another.
the
Monetary
Board
of
the
Central
Bank;
hence,
the
Civil
Code
is
not
the
controlling
piece
of
legislation.
The
facts
clearly
establish
that
the
petitioner
is
a
direct
participant
in
the
transaction,
acting
through
its
authorized
agents.
It
received
ISSUE:
the
customer's
orders
and
private
respondent's
money.
As
per
terms
of
Whether
or
not
the
commodity
futures
trading
is
a
legitimate
business?
the
trading
contract,
customer's
orders
shall
be
directly
transmitted
by
(since
it
is
practiced
in
the
United
States,
recognized
by
the
SEC
and
the
petitioner
as
broker
to
its
principal,
Frankwell
Enterprises
Ltd.
of
permitted
under
the
Civil
Code,
specifically
Article
1462)
Hongkong,
being
a
registered
member
of
the
International
Commodity
Clearing
House,
which
in
turn
must
place
the
customer's
orders
with
HELD:
the
Tokyo
Exchange.
There
is
no
evidence
that
the
orders
and
money
The
contract
between
the
parties
falls
under
the
kind
commonly
called
were
transmitted
to
its
principal
Frankwell
Enterprises
Ltd.
in
"futures".
The
term
"futures"
has
grown
out
of
those
purely
speculative
Hongkong
nor
were
the
orders
forwarded
to
the
Tokyo
Exchange.
We
transactions
in
which
there
are
nominal
contracts
to
sell
for
future
draw
the
conclusion
that
no
actual
delivery
of
goods
and
delivery,
but
where
in
fact
no
delivery
is
intended
or
executed.
The
commodity
was
intended
and
ever
made
by
the
parties.
In
the
nominal
seller
does
not
have
or
expect
to
have
a
stock
of
merchandise
realities
of
the
transaction,
the
parties
merely
speculated
on
the
rise
he
purports
to
sell
nor
does
the
nominal
buyer
expect
to
receive
it
or
to
and
fall
in
the
price
of
the
goods/commodity
subject
matter
of
the
pay
for
the
price.
Instead
of
that,
a
percentage
or
margin
is
paid,
which
transaction.
If
private
respondent's
speculation
was
correct,
she
would
is
increased
or
diminished
as
the
market
rates
go
up
and
down,
and
be
the
winner
and
the
petitioner,
the
loser,
so
petitioner
would
have
to
accounted
for
to
the
buyer.
This
is
simple
speculation,
gambling
or
pay
private
respondent
the
"margin".
But
if
private
respondent
was
wagering
on
prices
within
a
given
time;
it
is
not
buying
and
selling
and
wrong
in
her
speculation
then
she
would
emerge
as
the
loser
and
the
is
illegal
as
against
public
policy.
petitioner,
the
winner.
The
petitioner
would
keep
the
money
or
collect
the
difference
from
the
private
respondent.
This
is
clearly
a
form
of
The
facts
as
disclosed
by
the
evidence
on
record
show
that
private
gambling
provided
for
with
unmistakeable
certainty
under
Article
respondent
made
arrangements
with
Elizabeth
Diaz,
Account
2018
abovestated.
It
would
thus
be
governed
by
the
New
Civil
Code
Executive
of
petitioner
for
her
to
see
Mr.
Albert
Chiam,
petitioner's
and
not
by
the
Revised
Securities
Act
nor
the
Rules
and
Branch
Manager.
The
contract
signed
by
private
respondent
purports
Regulations
on
Commodity
Futures
Trading
laid
down
by
the
SEC.
to
be
for
the
delivery
of
goods
with
the
intention
that
the
difference
between
the
price
stipulated
and
the
exchange
or
market
price
at
the
Article
1462
of
the
New
Civil
Code
does
not
govern
this
case
because
time
of
the
pretended
delivery
shall
be
paid
by
the
loser
to
the
winner
the
said
provision
contemplates
a
contract
of
sale
of
specific
goods
where
one
of
the
contracting
parties
binds
himself
to
transfer
the
The
trading
contract
signed
by
private
respondent
and
Albert
Chiam,
ownership
of
and
deliver
a
determinate
thing
and
the
other
to
pay
representing
petitioner,
is
a
contract
for
the
sale
of
products
for
future
therefore
a
price
certain
in
money
or
its
equivalent.
The
said
article
delivery,
in
which
either
seller
or
buyer
may
elect
to
make
or
demand
requires
that
there
be
delivery
of
goods,
actual
or
constructive,
to
be
delivery
of
goods
agreed
to
be
bought
and
sold,
but
where
no
such
applicable.
In
the
transaction
in
question,
there
was
no
such
delivery;
delivery
is
actually
made.
By
delivery
is
meant
the
act
by
which
the
res
neither
was
there
any
intention
to
deliver
a
determinate
thing
margin,
guarantee
or
secure
any
trade
or
contract
that
results
or
may
After
considering
all
the
evidence
in
this
case,
it
appears
that
result
therefrom.
petitioner
and
private
respondent
did
not
intend,
in
the
deals
of
purchasing
and
selling
for
future
delivery,
the
actual
or
CEMCO
HOLDINGS
VS.
NATIONAL
LIFE
INSURANCE
constructive
delivery
of
the
goods/commodity,
despite
the
G.R.
No.
171815.
August
7,
2007
payment
of
the
full
price
therefor.
The
contract
between
them
falls
under
the
definition
of
what
is
called
"futures".
The
payments
made
FACTS:
under
said
contract
were
payments
of
difference
in
prices
arising
out
Union
Cement
Corporation
(UCC),
a
publicly-‐listed
company,
has
two
of
the
rise
or
fall
in
the
market
price
above
or
below
the
contract
price
principal
stockholders
—
UCHC
(Union
Cement
Holdings
Corporation),
thus
making
it
purely
gambling
and
declared
null
and
void
by
law.
a
non-‐listed
company,
with
shares
amounting
to
60.51%,
and
petitioner
Cemco
with
17.03%.
Majority
of
UCHC's
stocks
were
owned
Under
Article
2018,
the
private
respondent
is
entitled
to
refund
from
by
BCI
(Bacnotan
Consolidated
Industries,
Inc.)
with
21.31%
and
ACC
the
petitioner
what
she
paid.
There
is
no
evidence
that
the
orders
of
(Atlas
Cement
Corporation
)
with
29.69%.
Cemco,
on
the
other
hand,
private
respondent
were
actually
transmitted
to
the
petitioner's
owned
9%
of
UCHC
stocks.
principal
in
Hongkong
and
Tokyo.
There
was
no
arrangement
made
by
In
a
disclosure
letter,
BCI
informed
the
Philippine
Stock
Exchange
petitioner
with
the
Central
Bank
for
the
purpose
of
remitting
the
(PSE)
that
it
and
its
subsidiary
ACC
had
passed
resolutions
to
sell
to
money
of
its
customers
abroad.
The
money
which
was
supposed
to
be
Cemco
BCI's
stocks
in
UCHC
equivalent
to
21.31%
and
ACC's
stocks
in
remitted
to
Frankwell
Enterprises
of
Hongkong
was
kept
by
petitioner
UCHC
equivalent
to
29.69%.
in
a
separate
account
in
a
local
bank.
Having
received
the
money
and
orders
of
private
respondent
under
the
trading
contract,
petitioner
has
JULY,
2004
the
burden
of
proving
that
said
orders
and
money
of
private
In
the
PSE
Circular
for
Brokers
No.
3146-‐2004,
it
was
stated
that
as
a
respondent
had
been
transmitted.
But
petitioner
failed
to
prove
this
result
of
petitioner
Cemco's
acquisition
of
BCI
and
ACC's
shares
in
point.
UCHC,
petitioner's
total
beneficial
ownership,
direct
and
indirect,
in
UCC
has
increased
by
36%
and
amounted
to
at
least
53%
of
the
ADDITIONAL
INFORMATION:
shares
of
UCC.
Commodity
Futures
Contract
-‐
refer
to
an
agreement
to
buy
or
sell
a
specified
quantity
and
grade
of
a
commodity
at
a
future
date
at
a
price
As
a
consequence
of
this
disclosure,
the
PSE,
inquired
as
to
whether
established
at
the
floor
of
the
exchange.
the
Tender
Offer
Rule
under
Rule
19
of
the
Implementing
Rules
of
the
Securities
Regulation
Code
is
not
applicable
to
the
purchase
by
Futures
Commission
Merchant/Broker
-‐
refer
to
a
corporation
or
petitioner
of
the
majority
of
shares
of
UCC.
Director
Justina
Callangan
partnership,
which
must
be
registered
and
licensed
as
a
Futures
of
the
SEC's
Corporate
Finance
Department
responded
to
the
query
of
Commission
Merchant/Broker
and
is
engaged
in
soliciting
or
in
the
PSE
that
while
it
was
the
stance
of
the
department
that
the
tender
accepting
orders
for
the
purchase
or
sale
of
any
commodity
for
future
offer
rule
was
not
applicable,
the
matter
must
still
have
to
be
delivery
on
or
subject
to
the
rules
of
the
contract
market
and
that,
in
confirmed
by
the
SEC
en
banc.
Now,
SEC
en
banc
had
resolved
that
the
connection
with
such
solicitation
or
acceptance
of
orders,
accepts
any
Cemco
transaction
was
not
covered
by
the
tender
offer
rule.
money,
securities
or
property
(or
extends
credit
in
lieu
thereof)
to
Feeling
aggrieved
by
the
transaction,
respondent
National
Life
administrative
fines,
the
suspension
or
revocation
of
Insurance
Company
of
the
Philippines,
Inc.,
a
minority
stockholder
of
registrations
with
the
SEC,
and
the
like
is
WITHOUT
MERIT.
UCC,
sent
a
letter
to
Cemco
demanding
the
latter
to
comply
with
the
Petitioner
stresses
that
there
is
nothing
in
the
statute
which
rule
on
mandatory
tender
offer.
Cemco,
however,
refused.
authorizes
the
SEC
to
issue
orders
granting
affirmative
reliefs.
AUGUST
2004
SEC
was
acting
pursuant
to
Rule
19
(13)
of
the
Amended
A
Share
Purchase
Agreement
was
executed
by
ACC
and
BCI,
as
sellers,
Implementing
Rules
and
Regulations
of
the
Securities
and
Cemco,
as
buyer.
The
transaction
was
consummated
and
closed.
Regulation
Code,
to
wit:
13.Violation
Respondent
National
Life
Insurance
Company
of
the
Philippines,
Inc.
If
there
shall
be
violation
of
this
Rule
by
pursuing
a
filed
a
complaint
with
the
SEC
asking
it
to
reverse
its
July
2004
purchase
of
equity
shares
of
a
public
company
at
Resolution
and
to
declare
the
purchase
agreement
of
Cemco
void
and
threshold
amounts
without
the
required
tender
offer,
praying
that
the
mandatory
tender
offer
rule
be
applied
to
its
UCC
the
Commission,
upon
complaint,
may
nullify
the
said
shares.
Impleaded
in
the
complaint
were
Cemco,
UCC,
UCHC,
BCI
and
acquisition
and
direct
the
holding
of
a
tender
offer.
ACC,
which
were
then
required
by
the
SEC
to
file
their
respective
This
shall
be
without
prejudice
to
the
imposition
of
comment
on
the
complaint.
In
their
comments,
they
were
uniform
in
other
sanctions
under
the
Code.
arguing
that
the
tender
offer
rule
applied
only
to
a
direct
acquisition
of
the
shares
of
the
listed
company
and
did
not
extend
to
an
indirect
The
foregoing
rule
emanates
from
the
SEC's
power
and
acquisition
arising
from
the
purchase
of
the
shares
of
a
holding
authority
to
regulate,
investigate
or
supervise
the
company
of
the
listed
firm.
activities
of
persons
to
ensure
compliance
with
the
Securities
Regulation
Code,
more
specifically
the
CA:
Affirmed
ruling
of
the
SEC.
It
ruled
that
the
SEC
has
jurisdiction
to
provision
on
mandatory
tender
offer
under
Section
19
render
the
questioned
decision
and,
in
any
event,
Cemco
was
barred
by
thereof.
estoppel
from
questioning
the
SEC's
jurisdiction.
It,
likewise,
held
that
the
tender
offer
requirement
under
the
Securities
Regulation
Code
and
Another
provision
of
the
statute,
which
provides
the
basis
of
its
Implementing
Rules
applies
to
Cemco's
purchase
of
UCHC
stocks.
Rule
19
(13)
of
the
Amended
Implementing
Rules
and
Regulations
of
the
Securities
Regulation
Code,
is
Section
5.1
ISSUE:
(n),
viz:
1. WON
SEC
has
jurisdiction
2. WON
tender
offer
rule
applies
to
CEMCO
[T]he
Commission
shall
have,
among
others,
the
following
powers
and
functions:
HELD:
(n)Exercise
such
other
powers
as
may
be
provided
by
law
as
well
as
those
which
may
be
implied
from,
or
1. YES.
which
are
necessary
or
incidental
to
the
carrying
out
Contention
of
petitioner
that
the
SEC
can
only
impose
of,
the
express
powers
granted
the
Commission
to
administrative
sanctions
such
as
the
imposition
of
achieve
the
objectives
and
purposes
of
these
laws.
least
thirty
percent
(30%)
of
such
equity
over
a
period
of
twelve
(12)
To
deprive
the
SEC
of
this
power
would
render
the
agency
months
shall
make
a
tender
offer
to
stockholders
by
filing
with
the
inutile,
because
it
would
become
powerless
to
regulate
and
Commission
a
declaration
to
that
effect;
and
furnish
the
issuer,
a
implement
the
law.
statement
containing
such
of
the
information
required
in
Section
17
of
this
Code
as
the
Commission
may
prescribe.
Such
person
or
group
of
Additional
info:
petitioner
is
barred
from
questioning
the
jurisdiction
persons
shall
publish
all
requests
or
invitations
for
tender,
or
materials
of
the
SEC.
It
must
be
pointed
out
that
petitioner
had
participated
in
all
making
a
tender
offer
or
requesting
or
inviting
letters
of
such
a
security.
the
proceedings
before
the
SEC
and
had
prayed
for
affirmative
relief.
Copies
of
any
additional
material
soliciting
or
requesting
such
tender
offers
subsequent
to
the
initial
solicitation
or
request
shall
contain
such
2. TENDER
OFFER
DEFINED:
information
as
the
Commission
may
prescribe,
and
shall
be
filed
with
the
Commission
and
sent
to
the
issuer
not
later
than
the
time
copies
of
such
1. Tender
offer
is
a
publicly
announced
intention
by
a
materials
are
first
published
or
sent
or
given
to
security
holders.
person
acting
alone
or
in
concert
with
other
persons
to
acquire
equity
securities
of
a
public
company.
A
public
***
Under
existing
SEC
Rules,
16
the
15%
and
30%
threshold
company
is
defined
as
a
corporation
which
is
listed
on
an
acquisition
of
shares
under
the
foregoing
provision
was
increased
to
exchange,
or
a
corporation
with
assets
exceeding
thirty-‐five
percent
(35%).
It
is
further
provided
therein
that
P50,000,000.00
and
with
200
or
more
stockholders,
at
least
mandatory
tender
offer
is
still
applicable
even
if
the
acquisition
is
less
200
of
them
holding
not
less
than
100
shares
of
such
company.
than
35%
when
the
purchase
would
result
in
ownership
of
over
51%
of
the
total
outstanding
equity
securities
of
the
public
company.
2. A
tender
offer
is
an
offer
by
the
acquiring
person
to
stockholders
of
a
public
company
for
them
to
tender
their
QUESTION:
IS
PETITIONER
COVERED
BY
MANDATORY
TENDER
shares
therein
on
the
terms
specified
in
the
offer.
Tender
offer
OFFER
RULE?
is
in
place
to
protect
minority
shareholders
against
any
scheme
that
dilutes
the
share
value
of
their
investments.
It
YES!
gives
the
minority
shareholders
the
chance
to
exit
the
company
under
reasonable
terms,
giving
them
the
The
SEC
and
the
Court
of
Appeals
accurately
pointed
out
that
the
opportunity
to
sell
their
shares
at
the
same
price
as
those
of
coverage
of
the
mandatory
tender
offer
rule
covers
not
only
direct
the
majority
shareholders.
acquisition
but
also
indirect
acquisition
or
"any
type
of
acquisition".
BASIS:
Under
Section
19
of
Republic
Act
No.
8799,
it
is
stated:
This
is
clear
from
the
discussions
of
the
Bicameral
Conference
Tender
Offers.
19.1.
(a)
Any
person
or
group
of
persons
acting
in
concert
Committee
on
the
Securities
Act
of
2000,
on
17
July
2000.
who
intends
to
acquire
at
least
fifteen
percent
(15%)
of
any
class
of
any
equity
security
of
a
listed
corporation
or
of
any
class
of
any
equity
SEN.
S.
OSMEÑA.
security
of
a
corporation
with
assets
of
at
least
Fifty
million
pesos
Eto
ang
mangyayari
diyan,
eh.
Somebody
controls
67%
of
the
(P50,000,000.00)
and
having
two
hundred
(200)
or
more
stockholders
Company.
Of
course,
he
will
pay
a
premium
for
the
first
67%.
Control
with
at
least
one
hundred
(100)
shares
each
or
who
intends
to
acquire
at
yan,
eh.
Eh,
kawawa
yung
mga
maiiwan,
ang
33%
because
the
value
of
bottomline
of
the
law
is
to
give
the
shareholder
of
the
listed
company
the
stock
market
could
go
down,
could
go
down
after
that,
because
the
opportunity
to
decide
whether
or
not
to
sell
in
connection
with
a
there
will
(p.
41)
be
no
more
market.
Wala
nang
gustong
bumenta.
transfer
of
control.
.
.
.
.
Wala
nang
.
.
.
I
mean
maraming
gustong
bumenta,
walang
gustong
bumili
kung
hindi
yung
majority
owner.
And
they
will
not
buy.
They
Add’l
info:
WON
the
ruling
on
mandatory
tender
offer
rule
should
not
already
have
67%.
They
already
have
control.
And
this
protects
the
have
retroactive
effect.
The
rule
applies
retroactively
to
the
petitioner
minority.
And
we
have
had
a
case
in
Cebu
wherein
Ayala
A
who
already
because
the
ruling
relied
by
the
petitioner
was
only
a
mere
advisory
owned
40%
of
Ayala
B
made
an
offer
for
another
40%
of
Ayala
B
opinion.
Jurisprudence
has
it
that
an
advisory
opinion
of
an
agency
without
offering
the
20%.
Kawawa
naman
yung
nakahawak
ngayon
ng
may
be
stricken
down
if
it
deviates
from
the
provision
of
the
statute.
20%.
Ang
baba
ng
share
sa
market.
But
we
did
not
have
a
law
Since
the
letter
dated
27
July
2004
runs
counter
to
the
Securities
protecting
them
at
that
time.
(mng:
That
if
a
certain
group
achieves
a
Regulation
Code,
the
same
may
be
disregarded
as
what
the
SEC
has
certain
amount
of
ownership
in
a
corporation,
yeah,
he
is
obligated
to
done
in
its
decision
dated
14
February
2005.
buy
anybody
who
wants
to
sell.)
ABACUS
SECURITIES
vs.
AMPIL
**
naintindihan
niyo
ba?
From
my(TIN’s)
point
of
view,
sabi
pag
G.R.
No.
160016
–
February
27,
2006
majority
owner
ka
na
let’s
say
51%,
siyempre
pag
ibebenta
ng
owners
nung
remaining
49%
yung
share
nila,
e
wala
na
gusto
bumili
kasi
kahit
FACTS:
bilhin
ng
iba
duhh
minority
parin
sila,
on
the
other
hand,
hindi
na
din
Herein
petitioner,
Abacus
Securities
Corp.
(ASC)
is
engaged
in
business
bibilhin
nung
majority
stockholder
kasi
nga
may
control
na
siya
bat
pa
as
a
broker
and
dealer
of
securities
of
listed
companies
at
the
niya
bibilhin,
ganyan.
Philippine
Stock
Exchange
(PSE)
Center.
Sometime
in
April
1997,
respondent
Ampil
opened
a
cash
or
regular
account
with
petitioner
for
The
legislative
intent
of
Section
19
of
the
Code
is
to
regulate
the
purpose
of
buying
and
selling
securities
as
evidenced
by
the
activities
relating
to
acquisition
of
control
of
the
listed
company
Account
Application
Form.
The
parties’
business
relationship
was
and
for
the
purpose
of
protecting
the
minority
stockholders
of
a
governed
by
the
terms
and
conditions
therein.
listed
corporation.
Whatever
may
be
the
method
by
which
control
of
a
public
company
is
obtained,
either
through
the
direct
Since
April
10,
1997,
Ampil
actively
traded
his
account,
and
as
a
result
purchase
of
its
stocks
or
through
an
indirect
means,
mandatory
of
such
trading
activities,
he
accumulated
an
outstanding
obligation
in
tender
offer
applies.
favor
of
ASC
in
the
principal
sum
of
P6,617,036.22
as
of
April
30,
1997.
Despite
the
lapse
of
period
within
which
to
pay
his
account
as
well
as
Ownership
acquisition
means
both
direct
and
indirect.
What
is
decisive
sufficient
time
given
by
ASC
to
settle
his
account,
respondent
failed
to
is
the
determination
of
the
power
of
control.
The
legislative
intent
do
so.
ASC
then
sold
respondent’s
securities
to
set
off
against
his
behind
the
tender
offer
rule
makes
clear
that
the
type
of
activity
unsettled
obligations.
intended
to
be
regulated
is
the
acquisition
of
control
of
the
listed
company
through
the
purchase
of
shares.
Control
may
[be]
effected
After
the
sale,
it
showed
that
respondent
still
has
remaining
unsettled
through
a
direct
and
indirect
acquisition
of
stock,
and
when
this
takes
obligation
in
the
amount
of
P3,364,313.56.
A
letter
of
demand
was
sent
place,
irrespective
of
the
means,
a
tender
offer
must
occur.
The
to
respondent
and
the
latter
acknowledged
the
letter
and
admitted
his
obligation
and
requested
for
60
days
to
raise
funds
to
settle
the
same.
According
to
the
RTC,
by
allowing
respondent
to
trade
his
account
After
the
lapse
of
the
requested
extension,
respondent
failed
and
actively
without
cash,
petitioner
effectively
induced
him
to
purchase
refused
to
pay
his
accountabilities.
securities
thereby
incurring
excessive
credits.
For
his
defense,
respondent
claims
that
he
was
induced
to
trade
in
a
RTC
concluded
that
both
petitioner
and
respondent
were
in
pari
stock
security
with
ASC
because
the
latter
allowed
offset
settlements
delicto
and
therefore
without
recourse
against
each
other.
wherein
he
is
not
obliged
to
pay
the
purchase
price.
Rather,
it
waits
for
the
customer
to
sell.
And
if
there
is
a
loss,
ASC
only
requires
the
On
appeal,
the
CA
upheld
RTC’s
finding
that
the
parties
were
in
pari
payment
of
the
deficiency
(i.e.,
the
difference
between
the
higher
delicto.
It
likewise
debunked
petitioner’s
contention
that
the
trial
court
buying
price
and
the
lower
selling
price).
lacked
jurisdiction
to
determine
violations
of
the
RSA.
Hence,
this
petitions.
Respondent
further
claims
that
all
his
trades
with
ASC
were
not
paid
in
full
in
cash
at
anytime
after
purchase
or
within
the
T+4
[4
days
ISSUES:
subsequent
to
trading]
and
none
of
these
trades
was
cancelled
by
1. WON
the
pari
delicto
rule
is
applicable
in
the
present
case
petitioner.
Neither
did
ASC
apply
with
either
the
PSE
or
the
SEC
for
an
2. WON
the
trial
court
had
jurisdiction
over
the
case
extension
of
time
for
the
payment
of
his
cash
purchases.
This
was
not
brought
to
his
attention
by
his
broker
and
so
with
the
requirement
of
HELD:
collaterals
in
margin
account.
Thus,
his
trade
under
an
offset
The
petition
is
partly
meritorious.
transaction
with
ASC
is
unlimited
subject
only
to
the
discretion
of
the
broker.
(1)The
provisions
governing
the
above
transactions
are
Sections
23
and
25
of
the
RSA
and
Rule
25-‐1
of
the
RSA
Rules.
Also,
respondent
avers
that
had
petitioner
followed
the
provision
under
par.
8
of
Exh.
‘A-‐1’
which
stipulated
the
liquidation
within
the
"The
main
purpose
is
to
give
a
government
credit
agency
an
effective
T+3
[3
days
subsequent
to
trading],
his
net
deficit
would
only
be
method
of
reducing
the
aggregate
amount
of
the
nation’s
credit
P1,601,369.59.
resources
which
can
be
directed
by
speculation
into
the
stock
market
and
out
of
other
more
desirable
uses
of
commerce
and
industry
x
x
x."
The
RTC
of
Makati
City
ruled
that
ASC
violated
Secs.
23
and
25
of
the
Revised
Securities
Act
(RSA)
and
Rule
2501
of
the
Rules
Implementing
Otherwise
stated,
the
margin
requirements
set
out
in
the
RSA
are
the
Act
(RSA
Rules)
when
it
failed
to:
1)
require
the
respondent
to
pay
primarily
intended
to
achieve
a
macroeconomic
purpose
-‐-‐
the
protection
for
his
stock
purchases
within
three
(T+3)
or
four
days
(T+4)
from
of
the
overall
economy
from
excessive
speculation
in
securities.
Their
trading;
and
2)
request
from
the
appropriate
authority
an
extension
of
recognized
secondary
purpose
is
to
protect
small
investors.
time
for
the
payment
of
respondent’s
cash
purchases.
The
trial
court
noted
that
despite
respondent’s
non-‐payment
within
the
required
The
law
places
the
burden
of
compliance
with
margin
requirements
period,
petitioner
did
not
cancel
the
purchases
of
respondent.
Neither
primarily
upon
the
brokers
and
dealers.
Sections
23
and
25
and
Rule
did
it
require
him
to
deposit
cash
payments
before
it
executed
the
buy
25-‐1,
otherwise
known
as
the
"mandatory
close-‐out
rule,"
clearly
vest
and/or
sell
orders
subsequent
to
the
first
unsettled
transaction.
upon
petitioner
the
obligation,
not
just
the
right,
to
cancel
or
otherwise
of
time
and
refraining
from
giving
orders
to
his
broker
to
sell,
in
the
WHEREFORE,
the
assailed
Decision
and
Resolution
of
the
Court
of
hope
that
the
prices
would
rise.
Sustaining
his
argument
now
would
Appeals
are
hereby
MODIFIED.
Respondent
is
ordered
to
pay
amount
to
relieving
him
of
the
risk
and
consequences
of
his
own
petitioner
the
difference
between
the
former’s
outstanding
obligation
speculation
and
saddling
them
on
the
petitioner
after
the
result
was
as
of
April
11,
1997
less
the
proceeds
from
the
mandatory
sell
out
of
known
to
be
unfavorable.
shares
pursuant
to
the
RSA
Rules,
with
interest
thereon
at
the
legal
rate
until
fully
paid.
In
the
final
analysis,
both
parties
acted
in
violation
of
the
law
and
did
not
come
to
court
with
clean
hands
with
regard
to
transactions
PHIL.
VETERANS
BANK
VS.
CALLANGAN
subsequent
to
the
initial
trades
made
on
April
10
and
11,
1997.
Thus,
G.R.
No.
191995
–
August
3,
2011
the
peculiar
facts
of
the
present
case
bar
the
application
of
the
pari
delicto
rule
-‐-‐
expressed
in
the
maxims
"Ex
dolo
malo
non
oritur
FACTS:
action"
and
"In
pari
delicto
potior
est
conditio
defendentis"
-‐-‐
to
all
the
Respondent
Justina
F.
Callangan,
the
Director
of
the
Corporation
transactions
entered
into
by
the
parties.
The
pari
delecto
rule
refuses
Finance
Department
of
the
Securities
and
Exchange
Commission
(SEC),
legal
remedy
to
either
party
to
an
illegal
agreement
and
leaves
them
sent
the
Bank
a
letter,
informing
it
that
it
qualifies
as
a
"public
where
they
were.43In
this
case,
the
pari
delicto
rule
applies
only
to
company"
under
Section
17.2
of
the
Securities
Regulation
Code
(SRC)
transactions
entered
into
after
the
initial
trades
made
on
April
10
and
in
relation
with
Rule
3
(1)
(m)
of
the
Amended
Implementing
Rules
11,
1997.
and
Regulations
of
the
SRC.
The
Bank
is
thus
required
to
comply
with
the
reportorial
requirements
set
forth
in
Section
17.1
of
the
SRC.
The
(2)
The
instant
controversy
is
an
ordinary
civil
case
seeking
to
enforce
Bank
responded
by
explaining
that
it
should
not
be
considered
a
rights
arising
from
the
Agreement
(AOF)
between
petitioner
and
"public
company"
because
it
is
a
private
company
whose
shares
of
respondent.
It
relates
to
acts
committed
by
the
parties
in
the
course
of
stock
are
available
only
to
a
limited
class
or
sector,
i.e.,
to
World
War
II
their
business
relationship.
The
purpose
of
the
suit
is
to
collect
veterans,
and
not
to
the
general
public.
In
a
letter
dated
April
20,
2004,
respondent’s
alleged
outstanding
debt
to
petitioner
for
stock
Director
Callangan
rejected
the
Bank's
explanation
and
assessed
it
a
purchases.
total
penalty
of
One
Million
Nine
Hundred
Thirty-‐Seven
Thousand
Two
Hundred
Sixty-‐Two
and
80/100
Pesos
(P1,937,262.80)
for
failing
to
To
be
sure,
the
RSA
and
its
Rules
are
to
be
read
into
the
Agreement
comply
with
the
SRC
reportorial
requirements
from
2001
to
2003.
The
entered
into
between
petitioner
and
respondent.
Compliance
with
the
Bank
moved
for
the
reconsideration
of
the
assessment,
but
Director
terms
of
the
AOF
necessarily
means
compliance
with
the
laws.
Thus,
to
Callangan
denied
the
motion
in
SEC-‐CFD
Order
No.
085,
Series
of
2005
determine
whether
the
parties
fulfilled
their
obligations
in
the
AOF,
dated
July
26,
2005.
4
When
the
SEC
En
Banc
also
dismissed
the
Bank's
this
Court
had
to
pass
upon
their
compliance
with
the
RSA
and
its
appeal
for
lack
of
merit
in
its
Order
dated
August
31,
2006,
prompting
Rules.
This,
in
no
way,
deprived
the
Securities
and
Exchange
the
Bank
to
file
a
petition
for
review
with
the
Court
of
Appeals
(CA).
Commission
(SEC)
of
its
authority
to
determine
willful
violations
of
the
The
CA
dismissed
the
petition
and
affirmed
the
assailed
SEC
ruling,
RSA
and
impose
appropriate
sanctions
therefor,
as
provided
under
with
the
modification
that
the
assessment
of
the
penalty
be
Sections
45
and
46
of
the
Act.
recomputed
from
May
31,
2004.
shifted
the
burden
of
proof
to
the
respondents.
They
filed
a
motion
for
insider.
Insiders
have
the
duty
to
disclose
material
facts
which
are
continuance
of
proceedings.
The
SEC
issued
an
Omnibus
Ordcr
creating
known
to
them
by
virtue
of
their
position
but
which
are
not
known
to
a
special
investigating
panel
to
hear
and
decide
the
case
in
accordance
persons
with
whom
they
deal
and
which,
if
known,
would
affect
their
with
the
Rules
of
Practice
and
Procedure
before
the
PED,
SEC;
to
recall
investment
judgment.
In
some
cases,
however,
there
may
be
valid
the
show
cause
orders;
nod
to
deny
the
motion
for
continuance
for
lack
corporate
reasons
for
the
nondisclosure
of
material
information.
of
merit.
Respondents
filed
a
petition
before
the
CA
questioning
the
Where
such
reasons
exist,
an
issuer's
decision
not
to
make
any
public
Omnibus
Orders
and
prayed
for
Supplemental
Motions
for
the
issuance
disclosures
is
not
ordinarily
considered
as
a
violation
of
insider
of
a
writ
of
preliminary
injunction.
The
CA
granted
the
motion
and
trading.
At
the
same
time,
the
undisclosed
information
should
not
be
enjoined
the
SEC
from
doing
such.
It
ruled
that
there
were
no
improperly
used
for
non-‐corporate
purposes,
particularly
to
impending
rules
and
regulations
regarding
disclosure,
insider
trading,
disadvantage
other
persons
with
whom
an
insider
might
transact,
and
or
any
of
the
provisions
of
the
Revised
Securities
Act
that
respondent
therefore
the
insider
must
abstain
from
entering
into
transactions
allegedly
violated
and
that
SEC
had
no
statutory
authority
to
initiate
or
involving
such
securities.
file
any
suit
for
civil
liability
under
sec
8,
30,
an
36
of
the
Revised
Securities
Act.
Hence,
petition
by
SEC.
2.)
Yes.
While
the
absolute
repeal
of
a
law
generally
deprives
a
court
of
its
authority
to
penalize
the
person
charged
with
the
violation
of
the
ISSUES:
old
law
prior
to
its
appeal,
an
exception
to
this
rule
comes
about
when
1.
Whether
sections
8,
30,
and
36
of
the
RSA
require
the
enactment
of
the
repealing
law
punishes
the
act
previously
penalized
under
the
old
Implementing
Rules
to
make
them
binding
and
effective.
law.
2.
Whether
criminal
case
may
still
be
filed
against
respondents
despite
the
repeal
of
said
sections.
(Section
8
of
the
Revised
Securities
Act,
which
previously
provided
for
the
registration
of
securities
and
the
information
that
needs
to
be
included
in
the
registration
statements,
was
expanded
under
Section
12,
in
HELD:
connection
with
Section
8
of
the
Securities
Regulations
Code.
Further
1.)
No.
Sections
8,
30,
and
36
of
the
RSA
do
not
require
the
enactment
details
of
the
information
required
to
be
disclosed
by
the
registrant
are
of
implementing
rules
to
make
them
binding
and
effective.
The
mere
explained
in
the
Amended
Implementing
Rules
and
Regulations
of
the
absence
of
implementing
rules
cannot
invalidate
effectively
provisions
Securities
Regulations
Code,
issued
on
30
December
2003,
particularly
of
law,
where
a
reasonable
construction
that
will
support
the
law
may
Sections
8
and
12
thereof.
be
given.
Absence
of
any
Constitutional
and
statutory
infirmity,
the
provisions
are
perfectly
legal
and
binding.
The
intention
of
the
law
is
Section
30
of
the
Revised
Securities
Act
has
been
reenacted
as
Section
27
the
protection
of
investors
against
fraud,
committed
when
an
insider,
of
the
Securities
Regulations
Code,
still
penalizing
an
insider’s
misuse
of
using
secret
information,
takes
advantage
over
a
nun
uninformed
material
and
non-‐public
information
about
the
issuer,
for
the
purpose
of
investor.
The
term
"insiders”now
includes
persons
whose
relationship
protecting
public
investors.
Section
26
of
the
Securities
Regulations
Code
or
former
relationship
to
the
issuer
gives
or
gave
them
access
to
a
fact
even
widens
the
coverage
of
punishable
acts,
which
intend
to
defraud
of
special
significance
about
the
issuer
or
the
security
that
is
not
public
investors
through
various
devices,
misinformation
and
omissions.
generally
available,
and
one
who
learns
such
a
fact
from
an
insider
knowing
that
the
person
from
whom
he
learns
the
fact
is
such
an
Section
23
of
the
Securities
Regulations
Code
was
practically
lifted
from
Section
36(a)
of
the
Revised
Securities
Act.
Both
provisions
impose
upon
(1)
a
beneficial
owner
of
more
than
ten
percent
of
any
class
of
any
equity
security
or
(2)
a
director
or
any
officer
of
the
issuer
of
such
security,
the
obligation
to
submit
a
statement
indicating
his
or
her
ownership
of
the
issuer’s
securities
and
such
changes
in
his
or
her
ownership
thereof.)