*:11T; - Nadecor of Appeals Decision 18Feb13.pdf · Sir/\dadam: Pleage take notice that on February...

$: *:11T; - Nadecor of Appeals Decision 18Feb13.pdf · Sir/\dadam: Pleage take notice that on February 1.8. 2013, a DECISION, copy attache4 was issued by the FORMER SPECIAL FOURTEENTH$
REPUBLIC OF THE PHILIPPINES{ COURTOFAPPEALS

Manila

ROBERTO R. ROMULO,Petitioner,

- verSus -

coRAzoN H. RTCAFORT, IOSEMANI,JEI H. RICAFORT, ET. AL.,*:1"1T;CONRADO T. CALALANG, ET. AL.,

Petitioners,

- ver8u8 -

coRAzoN H. RTCAFORT, IOSEMANI,'EL H. RICAFORT, ET. AL.,

Reepondente.

NATIONWIDE DEVELOPMENTCORP.,

Petitioner,

- vertus -

coRAzoN H. RTCAFORT, JOSEMAIVI,JEL H. RICAFORT, ET. AL.,

Reepondente.

LUIS MAI{I,JEL L. GATMAITAN,Petitioner,

- verSug -

coRAzoN H. RTCAFORT, IOSEMAINUEL H. RICAFORT, ET. AL.,

Respondents.

CA-G.R. SP. NO. 122782

CA-G.R. SP. NO. 1227U

cA-c.R. sP. NO. t22It53

CA-G.R SP. NO. rvAil

NOTICE OF DECISION

February 19,2013Sir/\dadam:

Pleage take notice that on February 1.8. 2013, a DECISION, copy attache4was issued by the FORMER SPECIAL FOURTEENTH DIVISION. Court ofAppeals, in the above-entitled caee, the original of which is now on file in thieoffice.

You are hereby required to inform thie Court within five ( 5 ) days fromreceipt hereof of the date you received the notice urith copy of the Decision

Division Clerk of Court

Page 2

I cA€.R. SP NO. t227E2, CA-G.R SP NO. 122784CA-G.R. SP NO. 122853, CA-G.R Sp NO. 122854

Copy furnished:

ATTY. PARIS G. REAL - rcg.wlrc10h Floor, Rarnon Mageayeay Center,Roxas Boulevar4 Malate, lflX Manila(couneel for petitioner R Romulo)

AGCAOLI LAW OFFICE - reg. w/rc4b Floor, Fednan Suites,Salcedo St., Legaepi Village,1229 Makati City(counsel for R Romulo)

VILLARAZA CRUZ MARCELO & ANGANGCO - rcg.wlrcllth Avenue cor. 396 Skeet,Bonifacio Triangle, Bonifacio Global City,16i}a Taguig(couneel for C Calalan& A Ayala, L. Nitorreda & f. Engle )

PICAZO BLTYCO TAN FIDER & SANTOS - reg.wltc18'b, 19s, flB &10u Floore, Liberty Center,104 H.V. Dela Costa Street, Salcedo Village,1227 MakaH City(counsel for petitioner for Nationwide Development Corp.,and Luis Manuel Gatmaitan)

NATIONWIDE DEVELOPMENT CORPORATION - reg. w/rc2"d Floor, follibee Center, San Miguel Avenue,ftigas Center,1505 Pasig City

ZAI\{ORA POBLADOR VASQLJEZ & BRETANA - reg. {rc56 Floor, Montepino Street, Legaspi Village,138 Amoreolo Street,lZl9 Makati City(counsel for Corazon Ricafort, Jose Manuel Ricafort,Marie Grace Ricarfort)

MARTINEZ VERGARA GONZALES & SERRANO - reg. w/rcSuite 2t(Il, The Orient Square,F. ftigae,fr. Roa4 Ortigas Center,1505 Pasig City(counsel for respondent Ma Tereea Flora R. Santoe)

BODEGON ESTORNINOS GLJERZON BORIE & GOZOS - rcg. wlrcSth Floor, Park Trade Center, 1Zl5 Inveetment DriveMadrigal Businees Parlg AlabanglTS0 Muntinlupa City(couneel for fose Ricafort, fose de |esus and Ethelwoldo Fernandez)

CHAVEZ MIRANDA ASEOCHE LAW OFFICES - reg. w/rc08 Floor, One CorporatePlaza,,M5 Arnaiz Avenue, San Lorenzo Village,12Zl Makati City(counsel for Ethelwoldo E. Fernandez, Antonio .{. Henzon,Angel S. Ong)

AI{GARA ABELLO CONCEPCION REGALA & CRUZ - reg.wfrcX2"d F!ooI,ACCRALAW Tower, 2"d Avenue cor. 30h Sheet,Creecent Park West, Bonifacio Global City,163a Taguig City(couneel for Victor Lazatin)

ROXAS DELOS REYES LALTREL ROSARIO & LEAGOGO -rc9.w/tc19th Floor, BDO Plaz+ 8738 Paseo de Roxas,1226 Makati City(couneel for C Calalan& A. Ayala, L. Nitoneda & J. Engle)

THE LAW FIRM OF DONATO T. FAYTONA - reg. w/rc1909 Cityland 10 Tower LH.V. Dela Costa St., cor. Ayala Avenue,1225 Makati City(couneel for C. Calalan& A. Ayala, L. Nitorreda & ]. Engle)

HON. PRESIDING IUDGE - rcg.wlrcRegional Trid Court, Branch 1,59,

15ffi Paeig City

rtanice

Manila

FORMER SPECIAL FOURTEENTH DIVISION

oA-G.R. SP nto. 122782ROBERTO R. ROMULO,Petitioner,

- versus -

CORAZON H. RICAFORT,JOSE MANUEL H.RICAFORT, MARIE GRACEH. RICAFORT, and MA.TERESA FLORA R. SANTOS,

Respondents.x--- ------xCONRADO T. CALALANG,ALFREDO I. AYALA, JOHNENGLE and LEOCADIONITORREDA,

Petitioners,

- versus -

CORAZON H. RICAFORT,JOSE MANUEL H.RICAFORT, MARIE GRACEH. RICAFORT, and MA.TERESA FLORA B. SA'VTOS.

Respondents.x--- ------xNATIONWIDEDEVELOPMENT CORP.,

Petitioner,

- versus -

CORAZON H. BICAFORT,

oA-G.R. SP NO. 122784

oA-G.R. SP NO. 122853

Villaraza Ctuz

ll

CA-G.R. SP NO. l.22782CA-G.R. SP NO. rzz784CA-G.R. SP NO. rzz853CA-G.R. SP NO. rzz8g4DECISION

JOSE MANUEL H.RICAFORT, MARIE GRACEH. RICAFORT and MARIATERESA FLORA RICAFORT-sAwros,

Respondents.x--- ------xLWS MANUEL L. CA-G.R. SP NO. 122854GATMAITAN,

Petitioner, Members:DICDICAN,

Chairperson,'BATO, JR., and

coRAzoN H. R|oAFORT, PERALTA, JR., JJ.JOSE MANUEL H.BICAFORT, MARIE GRACEH. RICAFORT and MARIA Promulgated:TERESA FLORA RTCAFORT- | g FEB 2013sANTOS,

x--- _1:':"-'-o:-'-':- --$*iDECISION

BATO, JR., J.:

- versus -

Submitted for resolution are the above-entitled consolidatedcases assailing the Order dated December 21,2011, issued by RTCJudge Rodolfo R. Bonifacio, Branch 159, Pasig City, NCJR, in SECCase No. 1 1-164.

The factual antecedents, as culled from the pleadings andannexes submitted by the parties follow:

Nationwide Development Corporation ("NADECOR" for short)

' Vice J. Lantion per Office Order No. 201-12-ABR dated May 31, 2012.

CA-G.R. SP NO. lr22782CA-G.R. SP NO. rzz784CA-G.R. SP NO. rzz853CA-G.R. SP NO. rzzBg4DECtStON

is a domestic corporation organized for the purpose of engaging inmining. On August 15, 2011, pursuant to Article l, Section 1 of itsAmended By-Laws, NADECOR held its annual stockholders' meetingto elect the members of its Board of Directors for 2011-2012 at theTurf Room of the Manila Polo Club at McKinley Road, South ForbesPark, Makati City. Atty. Luis Manuel L. Gatmaitan, NADECOR'sCorporate Secretary, in his Affidavit dated November 21, 20111

declared under oath that in the said meeting there was a quorumbecause the stockholders representing 94.81% of the totaloutstanding capital of NADECOR by themselves or through their dulyauthorized representative attended the meeting. At the said meeting,Conrado T. Calalang, Alfredo l. Ayala, John Engle, LeocadioNitorreda, Roberto R. Romulo, Jose G. Ricafort, Victor P. Lazatln,Ethelwoldo E. Fernandez and Jose P. De Jesus were elected asmembers of the Board of Directors of NADECOR for 2011-2012.

On October 20, 2011, oI two months after the annualstockholders' meeting, respondents Corazon H. Ricafort, JoseManuel H. Ricafort, Marie Grace H. Ricafort and Maria Teresa FloraR. Santos ("respondents" for short) filed with the Regional Trial Court(RTC), Pasig City, a complaint dated October 13, 2011 againstNADECOR, Conrado T. Calalang, Jose G. Ricafort, Jose P. DeJesus, Roberto R. Romulo, Alf redo l. Ayala, Victor P. Lazatin,Ethelwoldo E. Fernandez, John Engle, Leocadio Nitorreda and LuisManuel L. Gatmaitan. In their complaint, docketed as SEC Case No.1 1 -164, respondents alleged, among others, that "they had noknowledge or prior notice of , and were thus unable to attend,participate in, and vote at, the said annual stockholder's meeting"because they received "after 15 August 2011" the notices informingthem of the annual stockholders of NADECOR,2 Respondentsattached to their complaint their respective affidavits alleging amongothers that they "only received the Notice, together with the Proxyforms for the Annual Stockholders Meeting a day after the saidmeeting took place, or on 16 August 201 1 ."3 By way of relief ,

1 CA-G.R. SP No. 122784, Rollo, pp. 125-135.

'? CA-G.R. SP No. 122853, Rollo, pp. 85-94.3 CA-G.R. SP No. 122784, Rollo, pp.88-102.

3

CA-G.R. SP NO. tz2782CA-G.R. SP NO. r:z784CA-G.R. SP NO. rzzSb3CA-G.R. SP NO. rzz8g4DECtStON

respondents prayed for the nullification of the "15 August 201 1 annualstockholders' meeting of NADECO[R] including all proceedings takenthereat, all the consequences thereof, and all acts carried outpursuant thereto."4

NADECOR filed its Answers dated November 23, 2011. LuisManuel L. Gatmaitan, NADECOR's Corporate Secretary, filed hisAnswer with Application for Hearing on Affirmative Defenseo datedNovember 18, 2011. Conrado T. Calalang, Roberto R. Romulo,Alf redo l. Ayala, John Engle and Leocadio Nitorreda filed theirAnswer with Compulsory CounterclaimT dated November 21, 2011.In their separate Answers, they asserted that the Complaint dated 13

October 2011, which was filed on October 20, 2011 by respondents,should be dismissed for non-exhaustion of administrative remedies,lack of cause of action and for being barred by prescription. Thecomplaint which seeks to nullify the election of the Board of Directorsof NADECOR is an election contest that must be filed within fifteen(15) days from the date of the election in accordance with Section 3of Rule 6 of the Interim Rules of Procedure Governing Intra-Corporate Controversies. Respondents filed the complaint onOctober 20, 2011, or more than two months after the election of theBoard of Directors, hence, it is barred by prescription. Also, thecomplaint should be dismissed for lack of cause of action becausethere was a quorum when the annual stockholders' meeting was heldon August 15, 2011, or on the third Monday of August2011, pursuantto the Amended By-Laws and respondents were notified of theannual stockholders' meeting. As shown in the Affidavits datedOctober 13, 2011 of Mario S. San Juan, NADECOR's employee,notices were sent on August 1 1, 2011 to the stockholders ofNADECOR, or four days prior to the 2011 stockholders' meeting, bymail via the Ortigas Post Office. Besides, Jose G. Ricafort appearedat the annual stockholders' meeting and presented the irrevocable

CA-G.R. SP No. 122784, Rollo, p.71.CA-G.R. SP No. 122853, Rollo, pp. 125-150.CA-G.R. SP No. 122854, Rollo, pp. 131-157.CA-G.R. SP No. 122784, Rollo, pp. 104-123.CA-G.R. SP No. 122853, Rollo, pp.284-287.

4

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5

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CA-G.R. SP NO. L22782CA-G.R. SP NO. rzz784CA-G.R. SP NO. rzz853CA-G.R. SP NO. tzz8g4DECISION

proxy executed by his wife Corazon Ricafort and children, namely,Jose Manuel H. Ricafort, Marie Grace H. Ricafort, and Ma. TeresaFlora R. Santos, constituting Jose G. Ricafort as their attorney andproxy to attend and represent them at any and all meetings of theshareholders of NADECOR, and to vote on their behalf upon any andall matters to be taken up at said meeting.e Jose G. Ricafort, thebeneficial owner of the stocks, also represented respondents in theannual stockholders' meeting by virtue of the separate "NomineeAgreement" executed by the respondents in his favor.10

After all the pertinent pleadings were filed, the RTC issued anOrder dated December 21,2011 (the "assailed Orde/'), nullifying theannual stockholders' meeting held on August 15, 2011 on the groundthat NADECOR failed to give appropriate and proper notice within theperiod fixed in its By-Laws to the respondents. On the "lrrevocableProxies", the RTC ruled that "(T)hese documents were merelyexecuted as comfort documents to give defendant JG Ricafort controlof NADECOR.'11 Also, the RTC opined that the Special Power ofAttorney dated April 27, 2010 executed by the respondents "amendedand limited the authority conferred on defendant JG Ricafort in thelrrevocable Proxies to matters and issues affecting on-goingnegotiations with Russel Mining and Minerals, Inc. and St. AugustineMining Ltd."12 The dispositive portion of the assailed Order states:

"lN VIEW OF THE FOREGOING this Court GRANTS, as ithereby GRANTS the relief prayed for in the Complaint and DENY(sic) all compulsory counterclaims for lack of merit. Consequently,Nationwide Development Corporation's 201 1 Annual Stockholders'Meeting held on August 15, 2011 is hereby declared NULL andVOID, including ALL matters taken up during said AnnualStockholders' Meeting. Any other acts, decisions, deeds, incidents,

e CA-G.R. SP No. 122784, Rollo, p. 139, Annex "C" to petitioners Conrado Calalang, et al.'sAnswer (with Compulsory Counterclaim) dated November 21,2011;Rollo, pp. 125-135, LuisManuel L. Gatmaitan's Affidavit dated November 21 ,2011; CA-G.R. SP No. 122853, Rollo,pp. 160-169, Luis Manuel L. Gatmaitan's Affidavit dated November 21,2011 attached toNADECOR's Answer dated November 23, 2011.

10 CA-G.R. SP No. 122784, Rollo, pp. 140-157.11 RTC Order, p. 14.12 RTC Order, pp. 13-14.

D

CA-G.R. SP NO. r22i8zCA-G.R. SP NO. rzzz84CA-G.R. SP NO. rzz853CA-G.R. SP NO. l.zz8g4DECTStON

matters taken up arising from and subsequent to the 2011 AnnualStockholders' Meeting are hereby likewise declared VOID and OFNO FORCE and EFFECT.

Defendant Nationwide Development Corporation is herebydirected to: (a) issue a new notice to all stockholders for theconduct of an annual stockholders' meeting corresponding to theyear 2011 since the annual stockholders meeting held on August15,2011 was declared VOID, ensuring their receipt within three (3)

days from the intended date of the annual meeting and (b) hold theannual stockholders meeting within thirty (30) days from receipt of

this Order."13

Aggrieved by the ruling of the RTC, within the reglementaryperiod, several petitions for review were filed against respondentsbefore this Court. On January 6, 2012, petitioner Roberto R. Romulo,filed a verifled petition for review with urgent prayer for the issuanceof a temporary restraining order and/or writ of preliminary injunction,docketed as CA-G.R. SP No. 122782. Also on January 6, 2012,petitioners Conrado T. Calalang, Alfredo l. Ayala, John Engle andLeocadio Nitorreda filed a verifiedla petition for review with urgentprayer for the issuance of a temporary restraining order and/orpreliminary injunction docketed as CA-G.R. SP No. 122784. OnJanuary 12, 2012, petitioners NADECOR (docketed as CA-G.R. SPNo. 1 22853) and Luis Manuel Gatmaitan (docketed as CA-G.R. SPNo. 122854), flled separate verified petitions for review with urgentprayer for the issuance of a temporary restraining order and/or writ ofpreliminary injunction. The separate petitions for review prayed thatthe Court of Appeals enjoin the implementation and execution of theassailed Order, as well as the effects thereof , and order therestoration of the status quo ante bellum and allow the directorsefected during the August 15, 2011 stockholders' meeting to continueto act as NADECOR's board of directors.

RTC Order, pp. 17-18Verification RnO Certitication Of Non-Forum Shopping dated January 5, 2012 signed bypetitioners Leocadio Nitorreda and John Engle; petitioners Conrado T. Calalang and AlfredoAyala submitted their separate Verification And Certification of Non-Forum Shopping datedJan uary'1 0, 2O1 2 and Jan uary 25, 201 2, respectively.

t3

t4

CA-G.R. SP NO. L2zZ82CA-G.R. SP NO. tzz784CA-G.R. SP NO. rzzS5gCA-G.R. SP NO. rzz8g4DECtSTON

In their Urgent Motion to Consolidate and/or Summarily DismissPetition with Entry of Appearance dated January 11, 2012respondents prayed for the consolidation of CA-G.R. SP No. 122782with the other cases docketed as CA-G.R. Nos. 122784, 122853 and122854 or the summary dismissal with prejudice of the said petitionson the ground of forum shopping.

CA-G.R. SP No. 122782, filed by petitioner Roberto R. Romulo(petitioner Romulo for short), was raffled to the Special FifteenthDivision of this Court.

After learning of the other petitions filed before this Court, onJanuary 13, 2012, petitioner Romulo filed a Motion to Wlthdraw hispetition.

On January 16, 2012, the Special Fifteenth Divisionls issued aResolutionl6 denying petitioner Romulo's prayer for injunctive relief.

On February 8, 2012, in CA-G.R. SP No. 122782, the SpecialFlfteenth DivlsionlT denied petitioner Romulo's motion to withdrawand granted respondents' motion for the consolidation of theaforesaid cases.

On February 23, 2012, petitioner Romulo filed an UrgentOmnibus Motion praying for the reconsideration of the Resolutiondated February 8, 2012 and the withdrawal of CA-G.R. SP No.122782, or in the alternative, for the members of the Special FifteenthDivision to inhibit themselves from handling said case.

CA-G.R. SP No. 122784, filed by petitioners Conrado T.

Calalang, Alfredo l. Ayala, John Engle and Leocadio Nltorrreda(hereinafter collectively referred to as "petitioners CAEN"), was raffledto the Eleventh Division of this Court.

Composed of Justices lsaias P. Dicdican, Jane Aurora C. Lantion and Angelita A. Gacutan.CA-G.R. SP No. 122782, Rollo, pp. 204-206.Composed of Justices lsaias P. Dicdican, Jane Aurora C. Lantion and Rodil V. Zalameda.

7

CA-G.R. SP NO. t22782CA-G.R. SP NO. tzz784CA-G.R. SP NO. rzz853CA-G.R. SP NO. rzz8g4DECTSTON

On January 16, 2012, the Eleventh Divisionls issued aResolutionle granting a temporary restraining order enjoining the"implementation and execution of the assailed Order dated December21, 2011 of the Regional Trial Court, Branch 159, Pasig City" andrequired respondents "to submit their Comment to petitioners' petition

and why a writ of preliminary injunction should not be issued withlnTEN (10) days from notice." Respondents filed their "COMMENT AD

CAUTELAM" dated Febru ary 17, 2012 praying for the denial of thepetition for review and the application for the issuance of a writ ofpreliminary injunction. While the TRO enjoined the assailed Order, itaf lowed the directors elected before the August 15, 2011stockholders' meeting to continue acting as NADECOR's board andto discharge their functions as directors in a hold-over capacity ("the

Hold-Over Board").

Petitioners CAEN filed a Partial Motion for Reconsideration on

January 27, 2012, praying for the reconsideration of the ruling thatthe status quo ante bellum in this case is the status of NADECORprior to the annual stockholders' meeting held on August 15, 2011.

Respondents (except respondent Ma. Teresa Flora R. Santos)filed an Opposition Ad Cautelam to petitioners CAEN's Partial Motionfor Reconsideration, with a Motion for Leave to File and Admit thesame dated February 6,2012.

In response, petitioners CAEN filed a Reply dated February 23,

2012 and a Motion to Admit Reply dated February 27, 2012.

Petitioners CAEN then fileApplication for Preliminary Injunctithe Petition for Review on the MeriUrgent Motion to Resolve Applicatthd Afiernative to Decide the Petition for Review on the Merits) datedMay 21, 2012 was filed on May 22, 2012. ln said motions to resolvetnei, brought to the attention of the Court new matters and

10 Composed of Justice Jose C. Reyes, Priscilla Baltazar-Padilla and Agnes Reyes Carpio.le CA-G.R. SP No. 122784, Rollo, pp. 209-216.

8

CA-G.R. SP NO. l^22282CA-G.R. SP NO. rzz784CA-G.R. SP NO. rzz853CA-G.R. SP NO. tzz8g4DECISION

subsequent events, namely: a) the rescission of the qgre.eryents withSt. Augustine Mining timited and St. Augustine Gold & CopperLimited; b) the removal and changing of the Corpo_rqte Secretary; andc) changlng of bank signatories in the NADECOR bank accounts.Subsequently, a Third Urgent Motion to Resolve dated June 6, ?012was fildd on even date,

-and thereafter a Supplement to the ThirdUrgent Motion to Resolve with Manifestation dated June 7, 2012informing the Court of the holding of annual stockholders' meeting onJune tgl ZO|Z: 1) to ratify the rescission of all the MOUs da!e{ 4prl27,2010 and related Trdnsaction Agreements between NADECORand St. Augustine Gold & Copper, Ltd. and_ St. Augustine Mining,Ltd.; 2) to- ratify the sale of L nissued Outstanding Shares ofNADECOR condtituting 25"/" of its Authorized Capital Stock toQueensberry Mining and Development Corp; 3) the election ofDirectors; ahO 4) the appointments of External Auditor and othermatters.

Respondents (except Santos) filed their Opposition dated June8,2012.

CA-G.R. SP No. 122853, filed by NADECOR, was raffled to theFifth Division of this Court.

On February 6, 2012, petitioner NADECOR filed its Oppositionto respondents' (except Santos) Motion to Consolidate and/orDismiss.

CA-G.R. SP No. 122854, filed by petitioner Luis ManuelGatmaitan (petitioner Gatmaitan) was raffled to the Tenth Divisionthis Court.

The respondents (except for respondent Santos) filed theFebruary 2,2012 Opposition to the Application for lnjunctive Relief.

On February 6, 2012, petitioner Gatmaitan filed his Oppositionto the Motion to Consolidate and/or Dismiss of the respondents whichprayed that the Honorable Court deny the Motion to Consolidateand/or Dismiss insofar as the same moves for the summary dismissal

9

L.of

CA-G.R. SP NO. rp2782CA-G.R. SP NO. tzz784CA-G.R. SP NO. rzzSSBCA-G.R. SP NO. rzz8g4DECTSTON

of the petition filed by petitioner Gatmaitan considering that none ofthe requisites for forum shopping is present.

The Tenth Division of the Honorable Court promulgated theFebruary 6, 2012 Resolution directing the respondents to filecomment on the petition filed by Gatmaitan.

On February 24, 2012, the Ninth Division of the HonorableCourt promulgated the February 24, 2012 Resolution ordering theconsolidation of CA-G.R. SP No. 122854 with CA-G.R. SP No.

122782.

Due to the reorganization of the Court, under Office Order No. 40-

12-ABR-1, Justice Lantion was assigned to the Fourteenth Division, as

Senior Member, with Justices lsaias P. Dicdican and Agnes Reyes

Carpio as Chairperson and Acting Junior Member, respectively.

Subsequently, under Office Order No. 198-12-ABR, Justice Lantion was

assigned as Senior Member of the Fourteenth Division, with JusticeDicdican as Chairperson, and Justice Eduardo B. Peralta, Jr. as JuniorMember. However, on May 31, 2012, due to the wellness leave ofJustice Lantion, the Raffle Committee of the day20 designated JusticeRamon M. Bato, Jr. as Acting Senior Member of the FourteenthDivision, per Office Order No. 201-12-ABR dated May 31 ,2012, viz.:

"ln view of the leave of absence (Wellness Program) of

Justice JANE AURORA C. LANTION, regular senior member of theFOURTEENTH DlVlSlON, Justice RAMON M. BATO, JR. hasbeen designated by the Raffle Committee as the acting seniormember of the FOURTEENTH DlVlSlON, in addition to his dutiesas regular senior member of the SECOND DlVlSlON, to act on all

cases submitted to the FOURTEENTH DIVISION, for finalresolution and/or appropriate action except ponencia, from June 1

to 15, 2012 or until Justice Lantion reports back for duty.

THIS HOLDS TRUE WITH THE OTHER DIV]SIONS WHEREINJUSTICE JANE AURORA C. I-ANTION PARTICIPATED OR TOOK

10

20 Composed of Justices Magdangal M. De Leon, Francisco Acosta and Angelita A. Gacutan.

CA-G.R. SP NO. L22782CA-G.R. SP NO. tzz784CA-G.R. SP NO. rzz853CA-G.R. SP NO. tzzB'4DECTSION

PART AS REGULAR MEMBER OR IN AN ACTING CAPACITY.

May 31 ,2012(sGD)

ANDRES B. REYES, JR.Presiding Justice"

In a Re-agendum dated June 8, 2012, Atty. Michael Real,

Dlvision Clerk of Court of the Fourteenth Division, brought to ourattention petitioners CAEN's urgent motions (dated March 8, 2012,May 21, 2012, June 6, 2012) to resolve their pending application forthe issuance of a writ of preliminary injunction. In order to avoid greatand irreparable injury to several parties, after considering thepertinent rules and jurisprudence vis-d-vis the facts andcircumstances obtaining, oh June 13, 2012, We issued OurResolution granting petitioners CAEN's application for a writ ofpreliminary injunction, enjoining the implementation of the assalledOrder and its effects, to wit:

"WHEREFORE, premises considered, the application for awrit of preliminary injunction is GRANTED. Let a writ of preliminaryinjunction be issued enjoining the implementation of the Orderdated December 2'1,2011 of the Regional Trial Court of Pasig City,Branch 159 and allowing the Board of Directors elected during theAugust 15, 2011 to continue to act as Board of Directors ofNADECOR.

Likewise, the parties, including the hold-over Board ofDirectors elected and acting before the August 15,2011Stockholders' Meeting are enjoined and prohibited from acting ashold-over board and from scheduling and holding any stockholder'smeeting, including the scheduled June 13, 2012 stockholders'meeting. Any etfects of said June 13, 2012 stockholders' meeting,including the ratification of the rescission of all MOUs dated April27, 2010 and Related Transaction Agreements betweenNADECOR and St. Augustine Gold and Copper, Ltd. and St.Augustine Mining, Ltd., the election of any new Board of Directorsand their acting as such thereafter and the sale and ratification ofthe sale of Unissued Certificates of Shares of NADECORconstituting 25% of its authorized capital stock to Queensberry are

also hereby enioined."

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CA-G.R. SP NO. rp2782CA-G.R. SP NO. rzz784CA-G.R. SP NO. rzz853CA-G.R. SP NO. tzz854DECTSTON

On June 14, 2012, We promulgated a Resolution directing theparties to submit their respective Memoranda on the merits.

Respondents (except respondent Ma. Teresa Flora R. Santos),however, filed a Motion for Reconsideration dated June 21, 2012 andprayed for the setting aside of the Resolution dated June 13, 2012and Writ of Prellminary Injunction dated June 13, 2012. In response,petitioner Romulo filed his CommenUOpposition dated July 13,2012,which was adopted by petitioners CAEN as their Comment.NADECOR filed its Opposition dated July 16,2012. Atty. Gatmaitanalso filed his Opposition dated July 1 6,2012.

Respondent Ma. Teresa Flora R. Santos and petitioners LuisManuel L. Gatmaitan and NADECOR filed their respectiveMemoranda, all dated July 10, 2012. Petitioner Romulo filed hisMemorandum dated July 1 1, 2012. Petitioners CAEN filed theirMemorandum dated July 17, 2012. Thereafter, respondents2l filedtheir Memorandum Ad Cautelam dated July 5,2012.

Subsequently, respondentsz filed a Manifestation of Withdrawalof Motion for Reconsideration dated July 23, 2012 praying for thewithdrawal of their Motion for Reconsideration dated June 21,2012.

In their unverified Urgent Motion for Inhibition dated July 12,

2012, respondents23 prayed that Justices lsaias P. Dicdlcan, RamonM. Bato, Jr. and Eduardo B. Peralta, Jr., immediately inhibit fromparticipating In the Instant cases. Thereafter, they filed aManifestation and Submission of Verification dated July 25, 2012 tocomply with the 2009 Internal Rules of the Court of Appeals.Petitioner Romulo thereafter filed an Opposition to respondents'Urgent Motion for Inhibition, which was adopted by petitioners CAENas their Comment.

In Our Resolution dated July 20, 2012, considering that

21 Except respondent Ma. Teresa Flora R. Santos.22 lbid.2 tbid.

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CA-G.R. SP NO. l^22782CA-G.R. SP NO. rzz784CA-G.R. SP NO. rzz853CA-G.R. SP NO. lrzz8g4DECISION

Honorable Presiding Justice Andres B. Reyes, Jr. referred to theCommittee on Rules of the Court of Appeals the issue of whether ornot the above-entitled consolidated cases should remain with JusticeRamon M. Bato, Jr. or be returned to Justice Aurora Jane C. Lantion,which was triggered by the letter dated June 27, 2012 of respondents'counsel, We held in abeyance the resolution of respondents' UrgentMotion For Inhibitlon dated July 12, 2012 and their Motion ForReconsideration dated June 12, 2012. On February 7, 2013, afterthe Honorable Presiding Justice Andres B. Reyes, Jr. approved therecommendation of the Committee on Rules2a that the aforesaidcases "should remain consolidated with the special division thatissued a writ of preliminary injunction regardless of the fact that J.

Bato acted thereat merely aS a substitute for J. Lantion," We issued aResolution denying for lack of merit respondents' motions forinhibition and reconsideration.

Meanwhile, on September 27, 2012, respondents2s filed aManifestation and Motion, stating that an annual stockholders'meeting was held on August 22, 2012, wherein a new board ofdirectors were elected to serve from 2012 to 2013. Thus, therespondents2o prayed for the dismissal of all petitions for review forbeing moot and academic in view of the holding of the 2012 annualstockholders meeting of NADECOR as provided in its Amended By-Laws. On February 6, 2013, petitioners CAEN filed a Motion forLeave to File and Admit Attached Counter-Manifestation andOpposition.

In a Manifestation dated October 18, 2012, petitioners CAENinformed this Court that the petitions for certiorari docketed as G.R.Nos. 202212-2127 and 202257-6028 questioning Our Resolution datedJune 13, 2012 granting a writ of preliminary injunction have alreadybeen dismissed with finality by the Honorable Supreme Court. We

24 Signed by Justices Rosmari D. Carandang, Hakim S. Abdulwahid and Apolinario D. Bruselas,

Jr., without the signatures of Justices Noel G. Tijam and Magdangal M. De Leon.25 Except respondent Ma. Teresa Flora R. Santos.2a lbid.27 Filed by Jose Ricafort, Jose P. De Jesus, Paolo A. Villar and Ma. Nalen Rosero-Galang.28 Filed by Ethelwoldo Fernandez, Antonio Henson and Angel Ong.

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also note that in the petitions for certiorari and prohibition filed byrespondents with the Supreme Court, docketed as G.R. Nos. 202647'50, also assailing the propriety of granting a writ of preliminaryinjunction, ho temporary restraining order or writ of preliminary

injunction against this Gourt have been issued despite respondents'prayer therefor.

Primarily, the issues for resolution are: 1) whether or not theaforesaid consolidated cases be dismissed on the ground of forumshopping; 2) whether or not the instant petitions should be dismissedfor being moot and academic; 3) whether or not the RTC committedreversible error in nullifying the August 15,2011 annual stockholders'meeting of NADECOR and in issuing the assailed Order datedDecember 21,2011.

On the first issue, respondents argue that petitioners are guiltyof forum shopping for having filed four (4) separate petitions whichsimilarly question the validity of the assailed Order and prayed for thedismissal of the petition with prejudice.

The contention of respondents is not meritorious.

Forum shopping is the act of a party against whom an adversedecision has been rendered in one forum, seeking another andpossibly a favorable judgment in another forum other than by appealor special civil action for certiorari.2e Stated differently, a party shouldnot be allowed to pursue simultaneous remedies in two differentforums.so For a charge of forum shopping to prosper, there mustexist between an action pending in one court and another actionbefore another court.3l The "essence of forum shopping is the filingof multiple suits involving the same parties for the same cause ofaction, either simultaneously or successively, for the purpose ofobtaining a favorable judgment."32 Forum shopping is present when

2s Velasquez vs. Hemandez,437 SCRA 357: Villanueva vs. Adre, 172 SCRA 876.30 People vs. CA,101 SCRA 450.3r Equitabte Phitippine Commercial lnternational Bank vs. Court of Appeals,425 SCRA 544.e T'Boli Agro tndustrial Development, lnc. (TADI) vs. Solilapsr, 394 SCRA 269; cited in

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there is identity of parties, rights or causes of action, and reliefssought in two or more pending cases.s The rationale against forumshopping is that a party should not be allowed to pursue

simultaneous remedies in two different forums to avoid conflictingdecisions upon the same issue and in order to promote the orderlyadministration of justice.s4 Also, as decided in the case of DAR vs.Alonzo-Legasto,# the rule on forum shopping "should not beinterpreted with such absolute literalness as to subvert its ownultimate and legitimate objective or the goal of all rules of procedure

-which is to achieve substantial justice as expeditiously as possible."

We note in the four (4) petitions that while they all question thesame Order of the RTC, as correctly argued by petitioner Romulo,petitioners are different parties asserting rights that are different fromone another. For example, petitioner Gatmaitan questions theassailed Order in his capacity as the Corporate Secretary ofNADECOR who prepared and issued the notices of NADECOR'sannual stockholders' meeting held on August 15, 2011 whichrespondents specifically attacked in the proceedings below. Thus, in

hls Petition, petitioner Gatmaitan specifically disputes the allegationthat there was an irregularity in the performance of his duties asCorporate Secretary of NADECOR. On the other hand, petitionersCAEN question the assailed Order as stockholders and members ofthe Board of Directors elected during NADECOR's annualstockholders' meeting on August 15, 201 1 , asserting their right to sitin the Board of Directors of NADECOR. NADECOR in the meantimeasserts its rights as a Corporation while petitioner Romulo claims tobe the Chairperson of the Board of Directors. Obviously, the variouspetitioners who are being represented by different lawyerss6 (except

Mondragon Leisure and Resort Corporation, et al. vs. lJnited Coconut Planters Bank, G.R. No.

'154187, April 14, 2OO4,427 SCRA 585.s' R & E Transport , lnc. vs. Latag,422 SCRA 698.34 Wee vs. Galvez,436 SCRA 96 citing Solid Homes lnc. vs. Court of Appeals, G.R. No. 108451,

April 11,1997,271 SCRA 157.3s G.R. No. 143016, August 30, 2OOO, 339 SCRA 306, citing Gabionza vs. Court of Appeals,

G.R. No. 112547, July 18, 1994,234 SCRA 192.eo ln CA-G.R. SP No. 122782, petitioner Roberto R. Romulo is represented by Agcaoili Law

Office then later by Atty. Paris G. Real.ln CA-G.R. SP No. 122854, petitioner Gatmaitan is represented by the Law Office ol Picazo

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petitioners NADECOR and Gatmaitan) need not get the consent ofthe other in seeking relief before this Court. Stated differently, havingdifferent rights and interests to protect, petitioners actedindependently of each other when they opted to file separate petitions

for review in order to obtain relief from this Court. Clearly, the instantpetitions can not be legally dismissed on the ground of forumshopping. Aptly, in the case of Emerito M. Ramos, Sr., et al. vs.

Court of Appeals, et a1.,37 the Supreme Court En Banc had theoccasion to rule that:

The Court is not persuaded that the private respondents wereengaged in forum shopping in the Court of Appeals.

It should be noted that this controversy involves three groups

of litigants - the petitioners as the first group, the GSIS andCOMBANK as the second group, and the FNBB and the group ofFilipino investors composing the third group. When the GSIS andCOMBANK felt aggrieved by the action taken by the trial court, theyhad the prerogative to question the same by way of a separatespecial civil action filed with Court of Appeals. By the same token,the FNBB and the group of Filipino investors can avail of the sameremedy. Since they were not satisfied with the action taken by thetrial court, they had the option to Challenge the same through a

separate special civil action filed with the appellate court. The twogroups of private respondents are different litigants with ditferentinterests. One group need not get the consent of the other beforeseeking relief in the appellate court through a special civil action.Each group was represented by its own lawyers. The two groups

filed separate pleadings.

The private respondents can be considered to have engagedin forum shopping if all of them, acting as one group, filed identicalspecial civil actions in the Court of Appeals and in this Court. Theremust be identity of parties or interests represented, rights assertedand relief sought in different tribunals. In the case at bar, the two

Buyco Tan Fider and Santos.tn CR-e .R. SP No. 122853, petitioner NADECOR is also represented by the Law Office of

Picazo Buyco Tan Fider and Santos.ln CA-G.d. SP No. 122784, petitioners Calalang, et al. are represented by the Law Firm of

Donato T. Faylona and later by the Law Firm of Villaraza Cruz Marcelo and Angayco.37 G.R. 80908 & 80909, May 24,1989, 173 SCRA 550.

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groups of private respondents appear to have acted independentlyof each other when they sought relief from the appellate court. Bothgroups sought relief from the same tribunal.

It would not matter even if there are several divisions in theCourt of Appeals and that both suits could be assigned to differentdivisions. The adverse party can always ask for the consolidation ofthe two cases. In fact, the petitioners sought the consolidation ofboth CA-G.R. SP Nos. 12859 and 12903.

The petitioners must have been aware that the two groups ofprivate respondents are different entities. When the petitioners filedtheir Complaint with the trial court, the GSIS and COMBANK werethe original defendants therein. The petitioners later amended theirComplaint by including the FNBB and the Tordesillas investorsgroup as defendants.

The Court, therefore, holds that the Court of Appeals did notcommit a grave abuse of discretion amounting to lack of jurisdictionwhen it refused to order the dismissal of CA-G.R. SP Nos. 12859and 12903 on the ground of forum shopping.

At any rate, in order to promote and facilitate the orderlyadministration of justice and avoid conflicting decisions, on motion ofthe respondents, the four petitions involving the same facts andissues were consolidated in accordance with the 2009 IRCA. Hence,the consolidation of the above-entitled cases is more in keeping withthe orderly administration of justice and not the dismissal of thepetitions on a technical ground anchored on forum shopping.

On the second issue, in their Manifestation and Motion,respondents' (except Santos) allege that an annual stockholders'meeting was held on August 22, 2012, wherein a new Board ofDirectors was elected to serve f rom 2012 to 2013. Thus,respondents (except Santos) prayed for the dismissal of all thepetitions for review for being moot and academic, consldering that thevalidity of the August 15, 2011 annual stockholders' meeting and theimpfementation of the Decision dated December 21, 2011 haveallegedly been been overtaken by the holding of the 2012 annual

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regular annual stockholders' meeting of NADECOR. These claimsare without merit.

We note that the alleged annual stockholders' meeting held onAugust 22, 2012 was called and held under the authority of the Hold-Over Board, elected and acting after the August 15, 2011stockholders' meeting. However, in the writ of preliminary injunctiondated June 13, 2012, We specifically enjoined the Hold-Over Boardfrom acting as the Board of NADECOR and f rom holding anystockholders' meeting. We note that with the Resolutions of theSupreme Court in G.R. Nos. 202212-21 and 202257-60 and theabsence of any restraining order or writ of preliminary injunction in

G.R. Nos. 202647-50, there is no question that the writ of preliminaryinjunction against the Hold Over Board remains valid and effective.As decided in the case of Spouses Manuel and Luisa Tan Lee, et al.vs. Hon. Court of Appeals and China Banking Corporation,sE "until theinjunction or restraining order has been set aside, vacated, ormodified by the court which granted it, or until the order or decreeawarding it has been reversed on appeal" the injunction must be"obeyed irrespective of the ultimate validity of the orde/'. Hence, thestockholders' meeting held by the Hold Over Board of Directors wasdone in violation of the writ of preliminary injunction dated June 13,

2012 and was thus void and of no effect. Therefore, no act of thesaid Hold-Over Board of Directors rendered the instant consolidatedpetitions moot and academic.

Besides, contrary to the contention of respondents, the holdingof an annual stockholders' meeting did not render moot andacademic the instant petitions. Black's Law Dictionary, Eight Edition,page 1029, defines a moot case ?s, "(A) matter in which acontroversy no longer exist; a case that presents only an abstractquestion that does not arise from existing facts or rights." As ruled bythe Supreme Gourt, an issue is considered moot and academic whenit ceases to present a justiciable controversy so that a declarationthereon would be of no practical use or value. In such a case, there

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38 G.R. No. 147191 , July 27,2006.

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is no actual substantial relief to which a party would be entitled to andwould be negated.3e Under the moot and academic doctrine, theCourts will abstain from expressing its opinion or resolving the case ifno legal rellef is needed or called for.ao Here, the holding of annualstockholders' meeting did not render moot and academic the instantpetitions for the simple reason that this Court will have to resolve thesubstantive issues raised in the petitions. In other words, this Courtcan still grant the equitable relief prayed for in the petitions orappropriate under the circumstances.

Now, on the merits.

Basically, the assailed Order of the RTC nullifying the August15, 2011 annual stockholders' meeting of NADECOR is premised onits findings that the respondents were not properly notified of the saidmeeting.

Contrary to the findings of the RTC and the respondents'contention that they were not able to participate in the annualstockholders' meeting, the records reveal that respondents didparticipate through their duly authorized representative, Jose G.Ricafort, who acted as their proxy. In his Affidavit dated November21, 2011, NADECOR's Corporate Secretary Atty. Luis Manuel L.Gatmaitan categorically declared under oath that respondentsappointed Jose G. Ricafort as their proxy and "Mr. Jose G. Ricafortsigned the attendance sheet for and in behalf of the plaintiffs asshown by his signatures in the spaces or rows in the said attendancesheet for the names of the plaintiffs who had appointed him as hisproxy." Atty. Timothy Joseph M. Mendoza, in his Affidavital datedNovember 21, 2011, assisted Atty. Gatmaitan in taking theattendance in the August 15, 2011 annual stockholders' meeting andunequivocally declared under oalh, viz.:

"Q12: The plaintiffs in SEC Case No. 11-164 are claiming that they

s Southeast Asia Manufacturing Corporation vs. The Municipal Council of Tagbilaran, No. L-23858, 94 SCRA 341; Gancho-on vs. Secretary of Labor and Employment,2Tl SCRA 204.& Baringvs. Courtof Appeals, G.R. 141746, December 15,2005,478 SCRA 88: Desavillevs.CA, G.R. No. 128310, August 13,2004,436 SCRA 387.

41 CA-G.R. SP No. 122853, Rollo, pp. 198-201,200-201.

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were not properly notified of the Annual Stockholders' Meeting heldon 15 August 2011. What can you say, if any, regarding this claimof plaintiffs?

A12: Based on the records, plaintiffs were given notices of themeeting through registered mail sent at least four days prior to themeeting in accordance with the requirements of the Amended By-Laws. Besides, the Amended By-laws already provides that annualmeetings of NADECOR shall be held on the third Monday of Augustin each year. The date of the meeting, 15 August 201 1 , was thethird Monday of August 2011.

Q13: Were the plaintiffs in SEC Case No. 11-164, Corazon H.Ricafort, Jose Manuel H. Ricafort, Marie Grace H. Ricafort, Ma.Teresa Flora R. Santos present or represented in the said meeting?

A13: They were represented during the subject meeting by Mr.Jose G. Ricafort, one of the defendants in SEC Case No. 1 1-164.

Q14: How do you know that the plaintiffs in SEC Case No. 11-164were represented by Mr. Jose G. Ricafort in the meeting?

A14: Together with Atty. Armina Dielle R. Kapunan, I wasresponsible for taking attendance at the stockholders' meeting inorder to assist Atty. Gatmaitan, as corporate secretary andsecretary of the said meeting, to determine whether stockholdersholding at least a majority of NADECOR's issued and outstandingcapital stock were present for quorum purposes. Atty. Kapunanand I manned the designated registration area in front of theentrance to the venue of the meeting. When Mr. Jose G. Ricafortarrived at the subject meeting, he approached our table and I askedhim to register his attendance at the meeting and sign theattendance sheet we had prepared for this purpose. He asked mewhere he can sign in the attendance sheet. I showed him where heshould sign his name and asked him whether he was also attendingas proxy for those NADECOR shares whose registered owners hadappointed him as proxy through an irrevocable proxy, whichincludes the NADECOR shares owned by all of the plaintiffs in SECCase No. 1 1-164. Mr. Jose G. Ricafort said yes and in fact, hesigned the attendance sheet for and on behalf of the plaintiffs asshown by his signature in the spaces or rows in the said attendancesheet for the names of the plaintitfs who had appointed him asproxy.

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Q15: lf I show you a copy of the attendance sheet which you saidwas signed by Mr. Jose G. Ricafort, would you be able to identitythe same?

A15: Yes.

Q16: I am showing to you a copy of an attendance sheet for theNADECOR stockholders' meeting on 15 August 2011, whatrelation, if any, does this have to the attendance sheet you justmentioned.

416: lt is the same document.

Q17: In the spaces or rows in the attendance sheet for the namesof the plaintiffs, there are signatures appearing beside the printedname Jose G. Ricafort, whose signatures are these?

A17: These are all the signatures of Mr. Jose G. Ricafort.

Q18: Why do you know that these are the signatures of Mr. JoseG. Ricafort?

418: I saw him sign the attendance sheet. Also, I am familiar withhis signature because I have seen it before and also because I

have acted on the same signature before.

Q19: What is your basis for saying that Mr. Jose H. Ricafort canrepresent the shares held by the plaintiffs in SEC Case No. 1 1-164?

A19: We have on our file as the Corporate Secretary ofNADECOR an lrrevocable Proxy signed by the plaintiffs in SECCase No. 1 1-164 together with Messrs. Jose Carlos H. Ricafort andRaymo[n]d H. Ricafort, which constituted and appointed Mr. JoseG. Ricafort as their attorney and proxy to attend and representthem at any and all meetings of the shareholders of NADECOR,and to vote upon any and all matters to be taken up at said meetingfor and on their behalf. We also have copies of the respectiveNominee Agreements of each of the plaintiffs where each plaintiffconfirmed and acknowledged his/her status as nominee for Mr.Jose G. Ricafort for the purpose of holding legal title to the sharesowned by Mr. Jose G. Ricafort in NADECOR. Further, in previousmeetings with Mr. Jose G. Ricafort involving other NADECOR

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matters, Mr. Ricafort had repeatedly said that those shares arereally owned by him and that he controls the voting for such

shares."

Indeed, during said meeting, Jose G. Ricafort represented thathe was authorized 1o appear as proxy on behalf of the respondentsand nobody questions his authority to represent responde.lts in thesaid meetirig.' To reiterate, the "IRREVOCnALE PROXY'a2 explicitlyconstituted

-Jose G. Ricafort as the attorney and proxy of therespondents, to attend and represent them at any and all meetings ofNADECOR, viz.:

..IRREVOCABLE PROXY

KNOW ALL MEN BY THESE PRESENTS:

That the undersigned parties, shareholders of NATIONWIDEDEVELOPMENT CORPORATION (hereinafter referred to as the"Company''), hereby irrevocably constitute and appoint JOSE G.RICAFORT, acting through its representatives, as the attorney andproxy of the undersigned, to attend and represent the undersignedat [any and all meetings of the shareholders of the Company], andfor and on behalf of the undersigned, to vote upon any and allmatters to be taken up at the meeting, according to the number ofshare(s) of stock of the Company of which the undersigned are thelawful record and beneficial owners, and which they would beentitled to vote if personally present, hereby ratifying and confirmingall that said attorney and proxy shall do in the premises, and givingand granting unto said attorney and proxy full power of substitutionand revocation.

This proxy shall continue in force for the maximum term allowedunder the Philippine law, unless revoked earlier by theundersigned."

Dated this 26th day of April, 2010.

(SGD) Corazon H. Ricafort (SGD) Jose Manuel H. Ricafort

(SGD) Juan Carlos H. Ricafort (SGD) Marie Grace H. Ricafort

42 CA-G.R. SP No. 122784, Rollo, p. 139.

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(SGD) Ma. Theresa Flora Santos (SGD) Raymond H' Ricafort

Viewed in its proper perspective, based on the declarations ofAtty. Luis Manuel L. Gatmaitan and Atty. Timothy Joseph M.

Mendoza and the documentary evidence denominated as"IRREVOCABLE PROXY" executed by the respondents proving

beyond an iota of doubt that Jose G. Ricafort was, indeed, dulyconstituted by respondents as their proxy to attend "any and all"NADECOR meetings, the RTC committed reversible error in nullifyingthe August 15, 2011 annual stockholders' meeting of NADECOR.Also, the RTC gravely erred in ruling that the Special Power ofAttorney executed by the respondents "amended and limited theauthority conferred on defendant JG Ricafort in the lrrevocableProxies to matters and issues affecting on-going negotiations withRussel Mining and Minerals, Inc. and St. Augustine Mining, Ltd." In

the assailed Order, the RTC failed to point out any provision of theSpecial Power of Attorney which limits the applicability of the"IRREVOCABLE PROXY', and which would support its erroneousruling on the matter. In fact, the Special Power of Attorney does notmake reference to the "IRREVOCABLE PROXY" and does not serveas basis for holding that the "IRREVOCABLE PROXY" was in anyway affected or modified by the Special Power of Attorney. On thecontrary, a cursory examination of the Special Power of Attorney€notarized on April 27, 2010 even authorized Jose G. Ricafort toappoint a "proxy to vote upon the shares of stock owned by theShareholders or standing in its name in the books of the Nadecor, atany meeting of the Shareholders of Nadecor, whether regular orspecial xxx." In effect, the Special Power of Attorney, althoughlimited in scope by its nature, even expanded the authority of JoseRicafort to appoint a proxy to attend and represent respondents in theregular or special meeting of NADECOR. In any event, the proxy thatwas executed by respondents in favor of Jose G. Ricafort was an"IRREVOCABLE PROXY", thus, the Special Power of Attorney couldnot have limited the authority of Jose G. Ricafort to attend andrepresent his wife and children in the said meeting.


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Apart from the "IRREVOCABLE PROXY", as evidenced by theso-called "NOMINEE AGREEMENT"44, respondents are merely thenominal owner of their shares, the real and beneficial owner thereofbeing Jose G. Ricafort. By executing the indlvidual "NOMINEEAGREEMENT", which also bears the signature of Jose G. Ricafort,respondents undeniably conf irmed and acknowledged that theirshares in NADECOR are held for and in behalf of Jose G. Ricafort,the beneficial owner. Expressly, the individual "NOMINEEAGREEMENT" pertinently and uniformly provide:

'The undersigned x x x (hereinafter referred to as the'Nominee') hereby confirms and acknowledges her status asnominee for JOSE G. RICAFORT (hereinafter referred to as the'Principal') x x x. The relationship of the principal and the Nomineewith respect to the Shares is governed by the following terms andconditions:

1. The Nominee holds the legal title to the Shares forand in behalf of Principal (sic) who is the beneficial ownerthereof. Any and all payments made by the Nominee on theShares, including but not limited to the subscription paymenttherefore, were funded by, and made on behalf and for the benefitof the Principal.

2. All dividends, whether cash, stock or property, all futureshares from the exercise of stock rights or preemptive rights andother fruits or proceeds accruing to or on the Shares or from anydisposition thereof shall be for the account, funding, expense orbenefit of the Principal, and accordingly, the Nominee shall deliverthe same to the Principal or to whoever the latter may designate. xxx

5. In case the Principal decides at any time to transfer theShares of any portion thereof to its own name, or to anothernominee or to ah assignee, the Principal is hereby given full andirrevocable special power and authority, with right of substitution, tocause the transfer of the legal title to the Shares in the name of thePrincipal or to such other nominee or assignee of the Principal, asthe case may be, by conveying such instruction to the CorporateSecretary of the Corporation. x x x


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25

8. The Corporate Secretary of the Corporation is herebygiven full special power and authority to do all acts and deedsnecessary to effect the transfer ir the books of the Corporation ofthe Shares from the name of the Nominee to the name of thePrincipal, another nominee, or the assignee of the Principal, as thecase may be.

9. The Nominee shall not in any manner mortgage, assign,or otherwise encumber her legal rights, title and interests in and tothe Shares without the prior written instructions of the Principal.

10. The Principal may assign any and all of its rights, titleand interests in and to the Shares and/or this Nominee Agreementin favor of any person upon prior written notice to the Nominee.

xxx xxx" (Emphasis supplied)

Also, Raymond H. Ricafort, in his Affidavitas dated November18, 2011, confirmed the execution by respondents of the "NomineeAgreements" acknowledging that his father Jose G. Ricafort is thebeneflcial owner of the shares registered in the names of his motherand siblings. Under oath he made the following declarations, to wit:

"1. I am one of the six children of Jose G. Ricafort and CorazonH. Ricafort, and my siblings are Jose Manuel H. Ricafort, JuanCarlos Ricafort, Victor Dennis H. Ricafort, Marie Grace H. Ricafortand Maria Theresa Flora R. Santos (a family of 8);

2. My father, Jose G. Ricafort, is and has been a Director ofNationwide Development Corporation (NADECOR) for more than20 years and was more recently the president of NADECOR withinthe period covering January 1,2011 to August 31, 2011;

3. Sometime in June 2007, my father had asked all of us,myself, my mother and all my sisters and brothers, except for VictorDennis H. Ricafort, to execute Nominee Agreements coveringshares that he assigned in favor of the various members of thefamily, copies of which are attached hereto as Annexes "A" to "D";


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4. In essence, the Nominee Agreements specifically state thatmy father, as the "Principal", retains beneficial ownership of theshares and custody of the certificates of stock;

5. My father, Jose G. Ricafort, also required all the fami[members who are nominees, to sign irrevocable proxies from timeto time, providing him the authority to vote the NADECOR shares inthe names of the various members of our fami[ and these proxiesauthorized my father to attend meetings and vote the shares ofNADECOR on behalf of the family members who were theregistered shareholders of NADECOR;

6. None of the shares that are in the name of my mother and/orin the name of my brothers and/or sisters have been paid for by therespective named shareholder and all these are beneficially ownedby my father, Jose G. Ricafort;

7. My mother has never attended a stockholders' meeting ofthe NADECOR but has always been represented by my father in allof the shareholders' meetings attended by my father since sharesof NADECOR were placed in the name of my mother as Nominee;

8. My sisters Marie Grace H. Ricafort and Teresa Ricafort-Santos, and my mother, Corazon H. Ricafort, all knew about theAnnual General Meeting (AGM) of NADECOR that was scheduled

on August 15, 201 1 ;"

Verily, from the indlvidual "NOMINEE AGREEMENT" executedby and between respondents and Jose G. Ricafort and the Affidavit ofRaymond Ricafort, it is crystal clear that Jose G. Ricafort is the realand beneficial owner of respondents' shares. Consequently, lack ofnotlce to respondents is inconsequential for the simple reason thatJose G. Ricafort attended and represented the respondents in theAugust 15, 201 1 annual stockholders' meeting wherein he was evenelected aS one of the Board of Directors. Besides, respondents'claim of lack of knowledge of the annual stockholders' meeting isnegated by Raymond H. Ricafort's Affidavit dated November 18,

2011 whereln he categorically declared that, "(M)y sisters MarieGrace H. Ricafort and Teresa Ricafort-Santos, and my mother,Corazon H. Ricafort, all knew about the Annual General Meeting

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27

(AGM) of NADECOR that was scheduled on August 15, 2011." Also,it is unthinkable and unnatural for Jose Ricafort not to inform his wifeand children of the annual stockholders' meeting of NADECOR. Thepresence of Jose Ricafort is the only logical explanation why his wifeand children did not bother to personally attend the August 15, 2011annual stockholders' meeting.

Besides, the records wlll show that on August 11, 2011 , or four(4) days prior to NADECOR's annual stockholders' meeting onAugust 15, 2011 , as shown in the Affidavit dated October 13, 201 1 ofMario S. San Juan, NADECOR's employee, notices were sent onAugust 11, 2011 to the stockholders of NADECOR, by mail via theOrtigas Post Office. Also, in his Affidavitao dated November 21,2O11,NADECOR's Corporate Secretary, Atty. Luis Manuel L. Gatmaitanconfirmed the sending out of notices to NADECOR's stockholdersincluding herein respondents. Under the By-Laws of NADECOR,Article l, Section 3 of NADECOR's Amended By-LawsaT what isrequired is the sending out of notices by registered mail at least threedays before the annual stockholders' meeting, to wit:

"SECTION 3. Notice of Meetings. Written or printed noticeof every annual or special meeting of the stockholders shall begiven to each Stockholder entitled to vote at such meeting, byleaving the same with him or at his residence, or usual place ofbusiness, or by mailing it, postage prepaid, and addressed to him athis address as it appears upon the books of the Corporation atleast three days before such meeting. Notice of every specialmeeting shall state the place, day and hour of such meeting andthe general nature of the business proposed to be transactedthereat. Failure to give notice of annual meeting, or of anyirregularity of such notice, shall not atfect the validity of such annualmeeting or of any proceedings at such meeting (other thanproceedings of which special notice is required by law or by theseBy-Laws). lt shall not be requisite to the validity of any meeting ofStockholders that notice thereof whether prescribed by law or bythese By-laws, shall have been given to any stockholder whoattends in person or by proxy, or to any Stockholder who, in writing

40 CA-G.R. SP No. 122784, Rollo, pp. 125-135.47 CA-G.R. SP No. 122784, Rollo, pp. 170-182.

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executed and filed with the records of the meeting either before orafter the holding thereof, waives such notice. No notice other thanverbal announcement need be given of any adjourned meetings of

Stockholders."

There is no requirement in NADECOR's By-laws of actualreceipt by the shareholder of the notice. Clearly, the notices weresent out in compliance with the three (3) day requirement underNADECOR's By-laws.

In any event, respondents were duly represented by Jose G.Ricafort during the August 15, 2011 annual stockholders' meeting.As discussed earlier, Jose G. Ricafort was fully authorized by therespondents to represent them during the meeting and vote theshares registered in their names. Respondents therefore, cannotclaim that they were not notified of the annual stockholders meetingconsidering that their proxy was present during the said meeting.

With respect to respondents' contention that notices shouldhave been sent at least two (2) weeks before the meeting, by expressprovislon of law, corporations are allowed to adopt shorter perlods forsending out notices of meetings in their by-laws, without setting anyminimum period therefor. Also by express provision of law,

stockholders may waive the notice requirement, to wit:

"SECTION 50. Regular and Special Meetings ofStockholders or Members. - Regular meetings of stockholders ormembers shall be held annually on a date fixed in the by-laws, or ifnot so fixed, on any date in April of every year as determined by theboard of directors or trustees: Provided, That written notice ofregular meetings shall be sent to all stockholders or members ofrecord at least two (2) weeks prior to the meeting, unless a differentperiod is required by the by-laws. xxx"

Thus, the provisions in NADECOR's Amended By-Lawsallowing notice of a stockholders' meeting to be sent by mailing it atleast three (3) days before such meeting is valid. Therefore,considering the notlce requirement under NADECOR's Amended By-

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29

Laws was fully complied with by NADECOR having sent the noticesout by registered mail four (4) days before the meeting, a fact whichis not controverted, there is no legal basis to nullify the annualstockholders' meeting and the proceedings thereat.

In any case, under Section 3, Article 1 of NADECOR'sAmended By-Laws, failure to give notice does not affect the validity ofan annual meeting or the proceedings:

"Xxx Failure to give notice of annual meeting, or anyirregularity in such notice, shall not affect the validity of such annualmeeting or of any proceedings at such meeting (other thanproceedings of which special notice is required by law of by theseBy-laws). Xxx"

The assailed Order brushed aside this provision of NADECOR'sAmended By-Laws, finding the foregoing provision contrary toSection 51 of the Corporation Code, which states:

"All proceedings had and any business transacted at anymeeting of the stockholders or members, if within the powers orauthority of the corporation, shal! be valid, even if the meeting beimproperly held or called, provided all the stockholders or members

of the corporation are present or duly represented at the meeting,"

The last paragraph of Section 51 of the Corporation Codeabove quoted is, however, inapplicable since the said provisioncontemplates a situation where the stockholders' meeting was"improperly held or called." However, as previously discussed, theannuai stockholders' meeting on August 15, 2011 was properly heldand called.

The applicable provision which precisely deals with the notlcesfor stockholders' meetings, the core of the controversy a quo, is thethird paragraph of Section 50 of the Corporation code which states:

"Notice of any meeting may be waived, expressly orimpliedly, by any stockholder or member. Xxx"

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Precisely, Section 3, Article 1 of NADECOR's Amended By-Laws expressly waives notice requirements by the stockholders,which is explicitly allowed under Section 50 of the Corporation Code.

Thus, We find that the notices for the August 15, 2011stockholders' meeting were duly sent to respondents and their basisfor assailing said stockholders' meeting on this ground is withoutmerit.

Anent the lssue on prescription, respondents argue that thecomplaint a quo is not an election contest because based on thematerial allegations in their complaint they "did not allege any defectin the validation of proxies, the manner and validity of elections, thequalification of candidates, and the proclamation of winners." Also,they argue that the complaint merely "alleged a violation of the noticerequirement or, in other words, a defect in the notice-giving." Thus,they agree with the following ruling of the RTC, viz.:

"On the issue of whether this case is an election contest, thisCourt on the basis of the allegations of the complaint and theevidence on hand, finds that this case is not an election contest.Hence, the Complaint is not barred by prescription.

In alleging that the Complaint is barred by prescription,NADECOR relies on Rule 6, Section 3 of the Interim RulesGoverning Intra-Corporate Controversies which provides that:

o,,n.,Ifi,1,3yi1,:'.Tfi Ji.lxi'ilT,I'::trt"',.''Hl,kEt3o'must state the following:

(' ),T:' o:ff ?'ift8 ii5;o. i'#?'"il' J t?- Sf,l'"i 1fl :

corporation do not provide for a procedurefor resolution of the controversy, or withinfifteen (15) days from the resolution of thecontroversy by the corporation as providedin its by-laws; and

(2) The plaintiff has exhausted all intra-corporate remedies in election cases asprovided for in the by-laws of the

3o

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corporation.

On this note, plaintiffs do not refute that an election contestmust be filed within fifteen (15) days from the date of election.However, such provision does not apply in this case because thepresent case is not an election contest but whether the plaintiffs'(sic) were deprived of their rights as stockholders to participate inNADECOR's annual stockholders meeting due to late receipt of theNotice for said meeting. This does not fall within the definition of anelection contest as defined however:

An election contest refers to any controversy ordispute involving title or claim to any elective office in astock or non-stock corporation, the validation of proxies,the manner and validity of elections, and the qualificationsof candidates, including the proclamation of winners, to theoffice of director, trustee or other office directly elected bythe stockholders in a close corporation or by members of anon-stock corporation where the article (sic) ofincorporation or by-laws so provide.

Contrary to defendants' claims, none of the plaintiffs isclaiming any elective office in NADECOR. Neither are theyquestioning the manner and validity of the elections, andqualifications of the candidates for directorship. Plaintiffs (sic)prayer is clear that they seek to have the August 15, 2011 AnnualStockholders' Meeting declared null and void due to fatal defectscommitted prior to said meeting. The nullification of proceedings,including the elections is not only incidental or the logicalconsequence of a declaration of nullity of the annual stockholders'meeting.

The complaint, not being an election contest, need notcomply with the requirements stated in Rule 6, Section 3 of the

Interim Rules."

In finding that the instant controversy is not an election contest,the RTC miserably failed to understand and correctly apply the legaldefinition of an election contest. Rule 6, Section 2 of the lnterimRules Governing Intra-Corporate Controversies defines an electioncontest, vrz:

"An election contest refers to any controversy or disputeinvolving title or claim to any elective otfice in a stock or non-stock

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corporation, the validation of proxies, the manner and validity ofelections, the qualifications of candidates, including theproclamation of winners, to the office of director, trustee or otheroffice directly elected by the stockholders in a close corporation orby members of a non-stock corporation where the articles ofincorporation or by laws so provide."

Based on the foregoing provision, We find merit in petitioners'argument that the instant controversy is an election contest coveredunder the Interim Rules Governing Intra-Corporate Controversies andis therefore barred by prescription. Any controversy which involvesthe manner and validity of elections is, by definition, 3h electioncontest, regardless of whether the prayer contained in the complaintspecifically prays only for the nullification of an annual stockholders'meeting. A complaint is deflned by the allegations in the complaintand not merely what is embodied in the prayer. In their complaint,respondents alleged that "they had no knowledge or prior notice of,and were thus unable to attend, participate in, and vote at, the saldannual stockholder's meeting" because they received "after 15August 2011" the notices informing them of the annual stockholdersof NADECOR. By way of relief , respondents prayed for thenullification of the "15 August 2011 annual stockholders' meeting" ofNADECO[R] including all proceedings taken thereat, all theconsequences thereof, and all acts carried out pursuant thereto."Clearly, respondents are directly or indirectly challenging the validityof the election of the Board of Directors of NADECOR.

Moreover, under NADECOR's By-Laws, the annualstockholders meeting is held "[f]or the election of Directors and for thetransaction of general business of its office...", and, in fact, thenullification of the August 15, 2011 stockholders' meeting had noother major effect except to nullify the election of the board ofdirectors elected thereat. Thus, to seek the nullification of the entireannual stockholders' meeting and the proceedings therein, includingthe election of the board of directors, based on the alleged failure toproperly notify the respondents of the meeting, is clearly a disputeinvolving the manner and validity of the elections, and thus an

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election contest under Rule 6, Section2ot the Interim Rules.

33

As correctly asserted by the petitioners, the RTC improperlybrushed aside the squarely applicable case of Yujuico vs. Court ofAppeals, 513 SCRA243 (2007) when it opined that:

"The defendants' reliance on Yujuico v. Court of Appeals is

not applicable in the present case considering that in Yujuico, oneof the reliefs prayed for was to nullify the election of the members ofthe Board of Directors and corporate officers held during the March1, 2004 annual stockholders' meeting on the ground of impropervenue, in violation of the Corporation Code. The Supreme Courtconsequently ruled that the action involves an election contest. Inthis present instance, plaintiffs are not questioning what transpiredin the NADECOR's annual meeting. What they are questioning areviolations of actions required by the By-Laws and the GorporationCode prior to holding a valid meeting. Definitely, the situation thatled to the ruling in Yujuico is not present in this case."

Undoubtedly, the RTC failed to comprehend the Supreme Courtruling in Yujuico, which is on all fours with the instant case. In

Yujuico, the respondents therein sought the nullification of an electionon the ground that the annual stockholders' meeting was held at animproper venue, in violation of the Corporation Code. The issue wasnot the improper venue of only the election proceedings, but ratherthe venue of the annual stockholders' meeting, during which theelection proceedings were held. The Supreme Court held that theaction therein involved an election contest. This is despite the factthat the controversy involved was a matter of the proper venue of theannual stockholders' meeting, with the elections being incidentalthereto.

Likewise, contrary to the hairsplitting and erroneous reasoningof the RTC, which states that the respondents are not "questioningthe manner and validity of the elections," the respondents are,indeed, questioning the manner and the validity of the elections onthe basis of improper notice of the annual stockholders' meeting, justas the nullification in Yujuico was sought on the basis of improper

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34

venue of the annual stockholders' meeting. Although respondents'prayer only mentioned that they seek to have the August 15, 2011annual stockholders' meeting declared null and void and convenientlymade no specif ic mention of the nullification of an election,nonetheless, the case is effectively a dispute which involves themanner and validity of elections since the election of the members ofthe board of the corporation is the main purpose of said meeting.

Being an election contest, as correctly argued by thepetitioners, the filing by the respondents of the complaint questioningthe August 15, 2011 annual stockholders'meeting for the election ofthe Board of Directors of NADECOR is barred by prescription.Section 3 of Rule 6 of the Interim Rules of Procedure Governingf ntra-Corporate Controversies, othenrvise known as A.M. No. 01 '2'04'SC which was approved on March 13, 2001 , expressly provides thatan election contest must be filed within "fifteen (15) days from thedate of the election if the by-laws of the corporation do not provide fora procedure for resolution of the controversy, or within fifteen (15)days from the resolution of the controversy by the corporation asprovided in lts by-laws." Respondents filed the complaint on 20October 2011, or more than two months after the election of theBoard of Directors of NADECOR, hence, it is barred by prescription.

All told, the RTC committed reversible error In issuing theassailed Order nullifying the August 1 5, 2011 annual stockholders'meeting of NADECOR and in not dismissing the complaint docketedas SEC Case No. 1 1-164.

WHEREFOFE the petitions are GRANTED and the RTC Orderdated December 21, 2011 is NULLIFIED and SEf ASIDE. TheAnnual Stockholders' Meeting of NADECOR held on August 15, 201 1

is hereby declared valld and the Board of Directors and Officerselected thereat are declared lawfully elected. Any and all acts of theBoard of Directors elected during the August 15, 201 1 NADECORAnnual Stockholders' Meeting are declared VALID. All actsperformed pursuant to the assailed Order dated December 21, 2011

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in SEC Case No. 1 1-164 are likewise declared NULL and VOID.

Likewise, the Writ of Preliminary Injunction dated June 13,2012is made PERMANENT.

SO ORDERED.

OHTGWTE ETUIIIIED

RAMON M. BATO, JR.Associate fu$ice

WE CONCUR:

oflrcns?$ Bftntf,DISAIAS P. DICDICAN

Associate fusfice

OHTCMilE EfiNSEDEDUARDO B. PERALTA, JR.

Associate fusfice

CERTIFICATION

Pursuant to Article Vlll, Section 13 of the Constitution, lt ishereby certified that the conclusions in the above decision werereached in consultation before the case was assigned to the writer ofthe opinion of the Court.

Associate JusticeChairperson, Former Special Fourteenth Divlsion

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