607 Phil.

581

THIRD DIVISION
G.R. No. 177549, June 18, 2009
ANTHONY S. YU, ROSITA G. YU AND JASON G. YU, PETITIONERS, VS.
JOSEPH S. YUKAYGUAN, NANCY L. YUKAYGUAN, JERALD NERWIN L.
YUKAYGUAN, AND JILL NESLIE L. YUKAYGUAN, [ON THEIR OWN
BEHALF AND ON BEHALF OF] WINCHESTER INDUSTRIAL SUPPLY,
INC., RESPONDENTS.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of

Court, which seeks to reverse and set aside the Resolutions dated 18 July 2006[2]
and 19 April 2007[3] of the Court of Appeals in CA-G.R. SP No. 00185. Upon
herein respondents' motion, the Court of Appeals rendered the assailed
Resolution dated 18 July 2006, reconsidering its Decision[4] dated 15 February
2006; and remanding the case to the Regional Trial Court (RTC) of Cebu City,
Branch 11, for necessary proceedings, in effect, reversing the Decision[5] dated
10 November 2004 of the RTC which dismissed respondents' Complaint in
SRC Case No. 022-CEB. Herein petitioners' Motion for Reconsideration of the
Resolution dated 18 July 2006 was denied by the appellate court in the other
assailed Resolution dated 19 April 2007.

Herein petitioners are members of the Yu Family, particularly, the father,

Anthony S. Yu (Anthony); the wife, Rosita G. Yu (Rosita); and their son, Jason
G. Yu (Jason).

Herein respondents composed the Yukayguan Family, namely, the father,

Joseph S. Yukayguan (Joseph); the wife, Nancy L. Yukayguan (Nancy); and their
children Jerald Nerwin L. Yukayguan (Jerald) and Jill Neslie Yukayguan (Jill).

Petitioner Anthony is the older half-brother of respondent Joseph.

Petitioners and the respondents were all stockholders of Winchester Industrial

Supply, Inc. (Winchester, Inc.), a domestic corporation engaged in the operation
of a general hardware and industrial supply and equipment business.

On 15 October 2002, respondents filed against petitioners a verified Complaint

for Accounting, Inspection of Corporate Books and Damages through
Embezzlement and Falsification of Corporate Records and Accounts[6] before
the RTC of Cebu. The said Complaint was filed by respondents, in their own
behalf and as a derivative suit on behalf of Winchester, Inc., and was docketed
as SRC Case No. 022-CEB. The factual background of the Complaint was
stated in the attached Affidavit executed by respondent Joseph.

According to respondents,[7] Winchester, Inc. was established and incorporated

on 12 September 1977, with petitioner Anthony as one of the incorporators,
holding 1,000 shares of stock worth P100,000.00.[8] Petitioner Anthony paid for
the said shares of stock with respondent Joseph's money, thus, making the
former a mere trustee of the shares for the latter. On 14 November 1984,
petitioner Anthony ceded 800 of his 1,000 shares of stock in Winchester, Inc. to
respondent Joseph, as well as Yu Kay Guan,[9] Siao So Lan, and John S.
Yu.[10] Petitioner Anthony remained as trustee for respondent Joseph of the 200
shares of stock in Winchester, Inc., still in petitioner Anthony's name.

Respondents then alleged that on 30 June 1985, Winchester, Inc. bought from
its incorporators, excluding petitioner Anthony, their accumulated 8,500 shares
in the corporation.[11] Subsequently, on 7 November 1995, Winchester, Inc.
sold the same 8,500 shares to other persons, who included respondents Nancy,
Jerald, and Jill; and petitioners Rosita and Jason.[12]

Respondents further averred that although respondent Joseph appeared as the

Secretary and Treasurer in the corporate records of Winchester, Inc., petitioners
actually controlled and ran the said corporation as if it were their own family
business. Petitioner Rosita handled the money market placements of the
corporation to the exclusion of respondent Joseph, the designated Treasurer of
Winchester, Inc. Petitioners were also misappropriating the funds and
properties of Winchester, Inc. by understating the sales, charging their personal
and family expenses to the said corporation, and withdrawing stocks for their
personal use without paying for the same. Respondents attached to the
Complaint various receipts[13] to prove the personal and family expenses charged
by petitioners to Winchester, Inc.
Respondents, therefore, prayed that respondent Joseph be declared the owner
of the 200 shares of stock in petitioner Anthony's name. Respondents also
prayed that petitioners be ordered to: (1) deposit the corporate books and
records of Winchester, Inc. with the Branch Clerk of Court of the RTC for
respondents' inspection; (2) render an accounting of all the funds of Winchester,
Inc. which petitioners misappropriated; (3) reimburse the personal and family
expenses which petitioners charged to Winchester, Inc., as well as the properties
of the corporation which petitioners withheld without payment; and (4) pay
respondents' attorney's fees and litigation expenses. In the meantime,
respondents sought the appointment of a Management Committee and the
freezing of all corporate funds by the trial court.

On 13 November 2002, petitioners filed an Answer with Compulsory

Counterclaim,[14] attached to which was petitioner Anthony's
Affidavit.[15] Petitioners vehemently denied the allegation that petitioner
Anthony was a mere trustee for respondent Joseph of the 1,000 shares of stock
in Winchester, Inc. in petitioner Anthony's name. For the incorporation of
Winchester, Inc., petitioner Anthony contributed P25,000.00 paid-up capital,
representing 25% of the total par value of the 1,000 shares he subscribed to, the
said amount being paid out of petitioner Anthony's personal savings and
petitioners Anthony and Rosita's conjugal funds. Winchester, Inc. was being co-
managed by petitioners and respondents, and the attached receipts, allegedly
evidencing petitioners' use of corporate funds for personal and family expenses,
were in fact signed and approved by respondent Joseph.

By way of special and affirmative defenses, petitioners contended in their

Answer with Compulsory Counterclaim that respondents had no cause of action
against them. Respondents' Complaint was purely intended for harassment. It
should be dismissed under Section 1(j), Rule 16[16] of the Rules of Court for
failure to comply with conditions precedent before its filing. First, there was no
allegation in respondents' Complaint that earnest efforts were exerted to settle
the dispute between the parties. Second, since respondents' Complaint
purportedly constituted a derivative suit, it noticeably failed to allege that
respondents exerted effort to exhaust all available remedies in the Articles of
Incorporation and By-Laws of Winchester, Inc., as well as in the Corporation
Code. And third, given that respondents' Complaint was also for inspection of
corporate books, it lacked the allegation that respondents made a previous
demand upon petitioners to inspect the corporate books but petitioners
refused. Prayed for by petitioners, in addition to the dismissal of respondents'
Complaint, was payment of moral and exemplary damages, attorney's fees,
litigation expenses, and cost of suit.

On 30 October 2002, the hearing on the application for the appointment of a

Management Committee was commenced. Respondent Joseph submitted
therein, as his direct testimony, the same Affidavit that he executed, which was
attached to the respondents' Complaint. On 4 November 2002, respondent
Joseph was cross-examined by the counsel for petitioners. Thereafter, the
continuation of the hearing was set for 29 November 2002, in order for
petitioners to adduce evidence in support of their opposition to the application
for the appointment of a Management Committee.[17]

During the hearing on 29 November 2002, the parties manifested before the
RTC that there was an ongoing mediation between them, and so the hearing on
the appointment of a Management Committee was reset to another date.

In amicable settlement of their dispute, the petitioners and respondents agreed

to a division of the stocks in trade,[18] the real properties, and the other assets of
Winchester, Inc. In partial implementation of the afore-mentioned amicable
settlement, the stocks in trade and real properties in the name of Winchester,
Inc. were equally distributed among petitioners and respondents. As a result,
the stockholders and members of the Board of Directors of Winchester, Inc.
passed, on 4 January 2003, a unanimous Resolution[19] dissolving the corporation
as of said date.

On 22 February 2004, respondents filed their pre-trial brief.[20]

On 25 June 2004, petitioners filed a Manifestation[21] informing the RTC of the

existence of their amicable settlement with respondents. Respondents, however,
made their own manifestation before the RTC that they were repudiating said
settlement, in view of the failure of the parties thereto to divide the remaining
assets of Winchester, Inc. Consequently, respondents moved to have SRC Case
No. 022-CEB set for pre-trial.

On 23 August 2004, petitioners filed their pre-trial brief.[22]

On 26 August 2004, instead of holding a formal pre-trial conference and
resuming the hearing on the application for the appointment of a Management
Committee, petitioners and respondents agreed that the RTC may already
render a judgment based on the pleadings. In accordance with the agreement of
the parties, the RTC issued, on even date, an Order[23] which stated:
ORDER

During the pre-trial conference held on August 26, 2004, counsels of the parties
manifested, agreed and suggested that a judgment may be rendered by the Court
in this case based on the pleadings, affidavits, and other evidences on record, or
to be submitted by them, pursuant to the provision of Rule 4, Section 4 of the
Rule on Intra-Corporate Controversies. The suggestion of counsels was
approved by the Court.

Accordingly, the Court hereby orders the counsels of the parties to file
simultaneously their respective memoranda within a non-extendible period of
twenty (20) days from notice hereof. Thereafter, the instant case will be deemed
submitted for resolution.

xxxx

Cebu City, August 26, 2004.

(signed)
SILVESTRE A. MAAMO, JR.
Acting Presiding Judge
Petitioners and respondents duly filed their respective
Memoranda,[24] discussing the arguments already set forth in
the pleadings they had previously submitted to the
RTC. Respondents, though, attached to their Memorandum a
Supplemental Affidavit[25] of respondent Joseph, containing
assertions that refuted the allegations in petitioner Anthony's
Affidavit, which was earlier submitted with petitioners' Answer
with Compulsory Counterclaim. Respondents also appended to
their Memorandum additional documentary evidence,[26]
consisting of original and duplicate cash invoices and cash
disbursement receipts issued by Winchester, Inc., to further
substantiate their claim that petitioners were understating sales
and charging their personal expenses to the corporate funds.

The RTC subsequently promulgated its Decision on 10

November 2004 dismissing SRC Case No. 022-CEB. The
dispositive portion of said Decision reads:
WHEREFORE, in view of the foregoing premises and for
lack of merit, this Court hereby renders judgment in this case
DISMISSING the complaint filed by the [herein respondents].

The Court also hereby dismisses the [herein petitioners']

counterclaim because it has not been indubitably shown that
the filing by the [respondents] of the latter's complaint was
done in bad faith and with malice.[27]
The RTC declared that respondents failed to show that they
had complied with the essential requisites for filing a derivative
suit as set forth in Rule 8 of the Interim Rules of Procedure
Governing Intra-Corporate Controversies:
(1) He was a stockholder or member at the time the acts or transactions
subject of the action occurred and at the time the action was filed;

(2) He exerted all reasonable efforts, and alleges the same with particularity
in the complaint, to exhaust all remedies available under the articles of
incorporation, by-laws, laws or rules governing the corporation or
partnership to obtain the relief he desires;

(3) No appraisal rights are available for the act or acts complained of; and

(4) The suit is not a nuisance or harassment suit.

As to respondents' prayer for the inspection of corporate
books and records, the RTC adjudged that they had likewise
failed to comply with the requisites entitling them to the
same. Section 2, Rule 7 of the Interim Rules of Procedure
Governing Intra-Corporate Controversies requires that the
complaint for inspection of corporate books or records must
state that:
(1) The case is for the enforcement of plaintiff's right of inspection of
corporate orders or records and/or to be furnished with financial
statements under Sections 74 and 75 of the Corporation Code of the
Philippines;

(2) A demand for inspection and copying of books and records and/or to
be furnished with financial statements made by the plaintiff upon
defendant;

(3) The refusal of defendant to grant the demands of the plaintiff and the
reasons given for such refusals, if any; and

(4) The reasons why the refusal of defendant to grant the demands of the
plaintiff is unjustified and illegal, stating the law and jurisprudence in
support thereof.
The RTC further noted that respondent Joseph was the
corporate secretary of Winchester, Inc. and, as such, he was
supposed to be the custodian of the corporate books and
records; therefore, a court order for respondents' inspection of
the same was no longer necessary. The RTC similarly denied
respondents' demand for accounting as it was clear that
Winchester, Inc. had been engaging the services of an audit
firm. Respondent Joseph himself described the audit firm as
competent and independent, and believed that the audited
financial statements the said audit firm prepared were true,
faithful, and correct.
Finding the claims of the parties for damages against each
other to be unsubstantiated, the RTC thereby dismissed the
same.

Respondents challenged the foregoing RTC Decision before

the Court of Appeals via a Petition for Review under Rule 43 of
the Rules of Court, docketed as CA-G.R. SP No. 00185.

On 15 February 2006, the Court of Appeals rendered its

Decision, affirming the 10 December 2004 Decision of the
RTC. Said the appellate court:
After a careful and judicious scrutiny of the extant records of
the case, together with the applicable laws and jurisprudence,
WE see no reason or justification for granting the present
appeal.

xxxx

x x x [T]his Court sees that the instant petition would still fail
taking into consideration all the pleadings and evidence of the
parties except the supplemental affidavit of [herein respondent]
Joseph and its corresponding annexes appended in
[respondents'] memorandum before the Court a quo. The
Court a quo have (sic) outrightly dismissed the complaint for its
failure to comply with the mandatory provisions of the Interim
Rules of Procedure for Intra-Corporate Controversies
particularly Rule 2, Section 4(3), Rule 8, Section [1(2)] and Rule
7, Section 2 thereof, which reads as follows:
 RULE 2

COMMENCEMENT OF ACTION AND PLEADINGS

Sec. 4. Complaint. - The complaint shall state or contain:

xxxx

(3) the law, rule, or regulation relied upon, violated, or sought

to be enforced;

xxxx

RULE 8

DERIVATIVE SUITS

Sec. 1. Derivative action. - x x x

xxxx

(2) He exerted all reasonable efforts, and alleges the same with
particularity in the complaint, to exhaust all remedies available
under the articles of incorporation, by-laws, laws or rules
governing the corporation or partnership to obtain the relief he
desires.

xxxx
 RULE 7

INSPECTION OF CORPORATE BOOKS AND

RECORDS

Sec. 2. Complaint - In addition to the requirements in section 4,

Rule 2 of these Rules, the complaint must state the following:

(1) The case is set (sic) for the enforcement of plaintiff's right
of inspection of corporate orders or records and/or to be
furnished with financial statements under Section 74 and 75 of
the Corporation Code of the Philippines;

(2) A demand for inspection and copying of books [and/or] to

be furnished with financial statements made by the plaintiffs
upon defendant;

(3) The refusal of the defendant to grant the demands of the

plaintiff and the reasons given for such refusal, if any; and

(4) The reasons why the refusal of defendant to grant the

demands of the plaintiff is unjustified and illegal, stating the law
and jurisprudence in support thereof.

xxxx

A perusal of the extant record shows that [herein respondents]

have not complied with the above quoted provisions.
[Respondents] should be mindful that in filing their complaint
which, as admitted by them, is a derivative suit, should have
first exhausted all available remedies under its (sic) Articles of
Incorporation, or its by-laws, or any laws or rules governing the
corporation. The contention of [respondent Joseph] that
he had indeed made several talks to (sic) his brother
[herein petitioner Anthony] to settle their differences is
not tantamount to exhaustion of remedies. What the law
requires is to bring the grievance to the Board of Directors
or Stockholders for the latter to take the opportunity to
settle whatever problem in its regular meeting or special
meeting called for that purpose which [respondents]
failed to do. x x x The requirements laid down by the Interim
Rules of Procedure for Intra-Corporate Controversies are
mandatory which cannot be dispensed with by any stockholder
of a corporation before filing a derivative suit.[28] (Emphasis
ours.)
The Court of Appeals likewise sustained the refusal by the
RTC to consider respondent Joseph's Supplemental Affidavit
and other additional evidence, which respondents belatedly
submitted with their Memorandum to the said trial court. The
appellate court ratiocinated that:
With regard to the claim of [herein respondents] that the
supplemental affidavit of [respondent] Joseph and its annexes
appended to their memorandum should have been taken into
consideration by the Court a quo to support the reliefs prayed
[for] in their complaint. (sic) This Court rules that said
supplemental affidavit and its annexes is (sic)
inadmissible.

A second hard look of (sic) the extant records show that during
the pre-trial conference conducted on August 26, 2004, the
parties through their respective counsels had come up with an
agreement that the lower court would render judgment based
on the pleadings and evidence submitted. This agreement is in
accordance with Rule 4, Sec. 4 of the Interim Rules of
Procedure for Intra-Corporate Controversies which explicitly
states:
SECTION. 4. Judgment before pre-trial. - If, after submission
of the pre-trial briefs, the court determines that, upon
consideration of the pleadings, the affidavits and other
evidence submitted by the parties, a judgment may be
rendered, the court may order the parties to file simultaneously
their respective memoranda within a non-extendible period of
twenty (20) days from receipt of the order. Thereafter, the
court shall render judgment, either full or otherwise, not later
than ninety (90) days from the expiration of the period to file
the memoranda.

xxxx
Clearly, the supplemental affidavit and its appended documents
which were submitted only upon the filing of the
memorandum for the [respondents] were not submitted in the
pre-trial briefs for the stipulation of the parties during the pre-
trial, hence, it cannot be accepted pursuant to Rule 2, Sec. 8 of
the same rules which reads as follows:
SEC. 8. Affidavits, documentary and other evidence. -
Affidavits shall be based on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify on the
matters stated therein. The affidavits shall be in question and
answer form, and shall comply with the rules on admissibility
of evidence.

Affidavits of witnesses as well as documentary and other

evidence shall be attached to the appropriate pleading;
Provided, however, that affidavits, documentary and other
evidence not so submitted may be attached to the pre-trial brief
required under these Rules. Affidavits and other evidence
not so submitted shall not be admitted in evidence, except
in the following cases:

(1) Testimony of unwilling, hostile, or adverse party witnesses.

A witness is presumed prima facie hostile if he fails or refuses to
execute an affidavit after a written request therefor;

(2) If the failure to submit the evidence is for meritorious and

compelling reasons; and

(3) Newly discovered evidence.

In case of (2) and (3) above, the affidavit and evidence must be
submitted not later than five (5) days prior to its introduction
in evidence.
There is no showing in the case at bench that the supplemental
affidavit and its annexes falls (sic) within one of the exceptions
of the above quoted proviso, hence, inadmissible.

It must be noted that in the case at bench, like any other civil
cases, "the party making an allegation in a civil case has the
burden of proving it by preponderance of
evidence." Differently stated, upon the plaintiff in [a] civil case,
the burden of proof never parts. That is, appellants must
adduce evidence that has greater weight or is more convincing
that (sic) which is offered to oppose it. In the case at bar, no
one should be blamed for the dismissal of the complaint but
the [respondents] themselves for their lackadaisical attitude in
setting forth and appending their defences belatedly. To admit
them would be a denial of due process for the opposite party
which this Court cannot allow.[29]
Ultimately, the Court of Appeals decreed:
WHEREFORE, judgment is hereby rendered DISMISSING
the instant petition and the assailed Decision of the Regional
Trial Court (RTC), 7th Judicial Region, Branch II, Cebu City,
dated November 10, 2004, in SRC Case No. 022-CEB is
AFFIRMED in toto. Cost against the [herein
respondents].[30]
Unperturbed, respondents filed before the Court of Appeals,
on 23 February 2006, a Motion for Reconsideration and
Motion to Set for Oral Arguments the Motion for
Reconsideration,[31] invoking the following grounds:
(1) The [herein respondents] have sufficiently exhausted all remedies before
filing the present action; and

(2) [The] Honorable Court erred in holding that the supplemental affidavit
and its annexes is (sic) inadmissible because the rules and the lower
court expressly allowed the submission of the same in its order dated
August 26, 2004 x x x.[32]
In a Resolution[33] dated 8 March 2006, the Court of Appeals
granted respondents' Motion to Set for Oral Arguments the
Motion for Reconsideration.

On 4 April 2006, the Court of Appeals issued a Resolution[34]

setting forth the events that transpired during the oral
arguments, which took place on 30 March 2006. Counsels for
the parties manifested before the appellate court that they were
submitting respondents' Motion for Reconsideration for
resolution. Justice Magpale, however, still called on the parties
to talk about the possible settlement of the case considering
their familial relationship. Independent of the resolution of
respondents' Motion for Reconsideration, the parties were
agreeable to pursue a settlement for the dissolution of the
corporation, which they had actually already started.

In a Resolution[35] dated 11 April 2006, the Court of Appeals

ordered the parties to submit, within 10 days from notice, their
intended amicable settlement, since the same would undeniably
affect the resolution of respondents' pending Motion for
Reconsideration. If the said period should lapse without the
parties submitting an amicable settlement, then they were
directed by the appellate court to file within 10 days thereafter
their position papers instead.

On 5 May 2006, respondents submitted to the Court of

Appeals their Position Paper,[36] stating that the parties did not
reach an amicable settlement. Respondents informed the
appellate court that prior to the filing with the Securities and
Exchange Commission (SEC) of a petition for dissolution of
Winchester, Inc., the parties already divided the stocks in trade
and the real assets of the corporation among
themselves. Respondents posited, though, that the afore-
mentioned distribution of the assets of Winchester, Inc. among
the parties was null and void, as it violated the last paragraph of
Section 122 of the Corporation Code, which provides that,
"[e]xcept by a decrease of capital stock and as otherwise
allowed by the Corporation Code, no corporation shall
distribute any of its assets or property except upon lawful
dissolution and after payment of all its debts and liabilities." At
the same time, however, respondents brought to the attention
of the Court of Appeals that the parties did eventually file with
the SEC a petition for dissolution of Winchester, Inc., which
the SEC approved.[37]

Respondents no longer discussed in their Position Paper the

grounds they previously invoked in their Motion for
Reconsideration of the Court of Appeals Decision dated 15
February 2006, affirming in toto the RTC Decision dated 10
November 2004. They instead argued that the RTC Decision
in question was null and void as it did not clearly state the facts
and the law on which it was based. Respondents sought the
remand of the case to the RTC for further proceedings on their
derivative suit and completion of the dissolution of
Winchester, Inc., including the legalization of the prior partial
distribution among the parties of the assets of said corporation.

Petitioners filed their Position Paper[38] on 23 May 2006,

wherein they accused respondents of attempting to incorporate
extraneous matters into the latter's Motion for
Reconsideration. Petitioners pointed out that the issue before
the Court of Appeals was not the dissolution and division of
assets of Winchester, Inc., thus, a remand of the case to the
RTC was not necessary.
On 18 July 2006, the Court of Appeals rendered the assailed
Resolution, granting respondents' Motion for
Reconsideration. The Court of Appeals reasoned in this wise:
After a second look and appreciation of the facts of the case,
vis-à-vis the issues raised by the [herein respondents'] motion
for reconsideration and in view of the formal dissolution of the
corporation which leaves unresolved up to the present the
settlement of the properties and assets which are now in danger
of dissipation due to the unending litigation, this Court finds
the need to remand the instant case to the lower court
(commercial court) as the proper forum for the adjudication,
disposition, conveyance and distribution of said properties and
assets between and amongst its stockholders as final settlement
pursuant to Sec. 122 of the Corporation Code after payment of
all its debts and liabilities as provided for under the same
proviso. This is in accord with the pronouncement of the
Supreme Court in the case of Clemente et. al. vs. Court of
Appeals, et. al. where the high court ruled and which WE
quote, viz:

"the corporation continues to be a body corporate for three (3)

years after its dissolution for purposes of prosecuting and
defending suits by and against it and for enabling it to settle
and close its affairs, culminating in the disposition and
distribution of its remaining assets. It may, during the three-
year term, appoint a trustee or a receiver who may act beyond
that period. The termination of the life of a juridical entity does
not by itself cause the extinction or diminution of the rights
and liabilities of such entity x x x nor those of its owners and
creditors. If the three-year extended life has expired without a
trustee or receiver having been expressly designated by the
corporation within that period, the board of directors (or
trustees) xxx may be permitted to so continue as "trustees" by
legal implication to complete the corporate liquidation. Still in
the absence of a board of directors or trustees, those having
any pecuniary interest in the assets, including not only the
shareholders but likewise the creditors of the corporation,
acting for and in its behalf, might make proper
representation with the Securities and Exchange
Commission, which has primary and sufficiently broad
jurisdiction in matters of this nature, for working out a
final settlement of the corporate concerns."

In the absence of a trustee or board of director in the case at

bar for purposes above mentioned, the lower court under
Republic Act No. [8799] (otherwise known as the Securities
and Exchange Commission) as implemented by A.M. No. 00-
8-10-SC (Transfer of Cases from the Securities and Exchange
Commission to the Regional Trial Courts) which took effect on
October 1, 2001, is the proper forum for working out the final
settlement of the corporate concern.[39]
Hence, the Court of Appeals ruled:
WHEREFORE, premises considered, the motion for
reconsideration is GRANTED. The order dated February 15,
2006 is hereby SET ASIDE and the instant case is
REMANDED to the lower court to take the necessary
proceedings in resolving with deliberate dispatch any and all
corporate concerns towards final settlement.[40]
Petitioners filed a Motion for Reconsideration[41] of the
foregoing Resolution, but it was denied by the Court of
Appeals in its other assailed Resolution dated 19 April 2007.

In the Petition at bar, petitioners raise the following issues:

I.

WHETHER OR NOT THE ASSAILED RESOLUTIONS[,]

WHICH VIOLATED THE CONSTITUTION OF THE
PHILIPPINES, JURISPRUDENCE AND THE LAW[,] ARE
NULL AND VOID[.]

II.

WHETHER OR NOT THE ASSAILED RESOLUTIONS

WAS (sic) ISSUED WITHOUT JURISDICTION[.]

III.

WHETHER OR NOT THE HONORABLE COURT OF

APPEALS SERIOUSLY ERRED IN REMANDING THIS
CASE TO THE LOWER COURT FOR THE REASON
CITED IN THE ASSAILED RESOLUTIONS, AND
WITHOUT RESOLVING THE GROUNDS FOR THE
[RESPONDENTS'] MOTION FOR RECONSIDERATION.
(sic) INASMUCH AS [THE] REASON CITED WAS A
NON-ISSUE IN THE CASE.

IV.

WHETHER OR NOT REMANDING THIS CASE TO THE

REGIONAL TRIAL COURT VIOLATES THE SUMMARY
PROCEDURE FOR INTRA-CORPORATE CASES.[42]
The crux of petitioners' contention is that the Court of Appeals
committed grievous error in reconsidering its Decision dated
15 February 2006 on the basis of extraneous matters, which
had not been previously raised in respondents' Complaint
before the RTC, or in their Petition for Review and Motion for
Reconsideration before the appellate court; i.e., the
adjudication, disposition, conveyance, and distribution of the
properties and assets of Winchester, Inc. among its
stockholders, allegedly pursuant to the amicable settlement of
the parties. The fact that the parties were able to agree before
the Court of Appeals to submit for resolution respondents'
Motion for Reconsideration of the 15 February 2006 Decision
of the same court, independently of any intended settlement
between the parties as regards the dissolution of the
corporation and distribution of its assets, only proves the
distinction and independence of these matters from one
another. Petitioners also contend that the assailed Resolution
dated 18 July 2006 of the Court of Appeals, granting
respondents' Motion for Reconsideration, failed to clearly and
distinctly state the facts and the law on which it was
based. Remanding the case to the RTC, petitioners maintain,
will violate the very essence of the summary nature of the
Interim Rules of Procedure Governing Intra-Corporate
Controversies, as this will just entail delay, protract litigation,
and revert the case to square one.

The Court finds the instant Petition meritorious.

To recapitulate, the case at bar was initiated before the RTC by
respondents as a derivative suit, on their own behalf and on
behalf of Winchester, Inc., primarily in order to compel
petitioners to account for and reimburse to the said
corporation the corporate assets and funds which the latter
allegedly misappropriated for their personal benefit. During the
pendency of the proceedings before the court a quo, the parties
were able to reach an amicable settlement wherein they
agreed to divide the assets of Winchester, Inc. among
themselves. This amicable settlement was already partially
implemented by the parties, when respondents repudiated the
same, for which reason the RTC proceeded with the case on its
merits. On 10 November 2004, the RTC promulgated its
Decision dismissing respondents' Complaint for failure to
comply with essential pre-requisites before they could avail
themselves of the remedies under the Interim Rules of
Procedure Governing Intra-Corporate Controversies; and for
inadequate substantiation of respondents' allegations in said
Complaint after consideration of the pleadings and evidence on
record.

In its Decision dated 15 February 2006, the Court of Appeals

affirmed, on appeal, the findings of the RTC that respondents
did not abide by the requirements for a derivative suit, nor
were they able to prove their case by a preponderance of
evidence. Respondents filed a Motion for Reconsideration
of said judgment of the appellate court, insisting that they were
able to meet all the conditions for filing a derivative
suit. Pending resolution of respondents' Motion for
Reconsideration, the Court of Appeals urged the parties to
again strive to reach an amicable settlement of their
dispute, but the parties were unable to do so. The parties
were not able to submit to the appellate court, within the given
period, any amicable settlement; and filed, instead, their
Position Papers. This effectively meant that the parties opted
to submit respondents' Motion for Reconsideration of the 15
February 2006 Decision of the Court of Appeals, and
petitioners' opposition to the same, for resolution by the
appellate court on the merits.

It was at this point that the case took an unexpected turn.

In accordance with respondents' allegation in their Position

Paper that the parties subsequently filed with the SEC, and the
SEC already approved, a petition for dissolution of Winchester,
Inc., the Court of Appeals remanded the case to the RTC so
that all the corporate concerns between the parties regarding
Winchester, Inc. could be resolved towards final settlement.

In one stroke, with the use of sweeping language, which utterly

lacked support, the Court of Appeals converted the derivative
suit between the parties into liquidation proceedings.

The general rule is that where a corporation is an injured party,

its power to sue is lodged with its board of directors or
trustees. Nonetheless, an individual stockholder is permitted to
institute a derivative suit on behalf of the corporation wherein
he holds stocks in order to protect or vindicate corporate
rights, whenever the officials of the corporation refuse to sue,
or are the ones to be sued, or hold the control of the
corporation. In such actions, the suing stockholder is regarded
as a nominal party, with the corporation as the real party in
interest. A derivative action is a suit by a shareholder to
enforce a corporate cause of action. The corporation is a
necessary party to the suit. And the relief which is granted is a
judgment against a third person in favor of the
corporation. Similarly, if a corporation has a defense to an
action against it and is not asserting it, a stockholder may
intervene and defend on behalf of the corporation.[43] By
virtue of Republic Act No. 8799, otherwise known as the
Securities Regulation Code, jurisdiction over intra-corporate
disputes, including derivative suits, is now vested in the
Regional Trial Courts designated by this Court pursuant to
A.M. No. 00-11-03-SC promulgated on 21 November 2000.

In contrast, liquidation is a necessary consequence of the

dissolution of a corporation. It is specifically governed by
Section 122 of the Corporation Code, which reads:
SEC. 122. Corporate liquidation. - Every corporation whose
charter expires by its own limitation or is annulled by forfeiture
or otherwise, or whose corporate existence for other purposes
is terminated in any other manner, shall nevertheless be
continued as a body corporate for three (3) years after the time
when it would have been so dissolved, for the purpose of
prosecuting and defending suits by or against it and enabling it
to settle and close its affairs, to dispose of and convey its
property and to distribute its assets, but not for the purpose of
continuing the business for which it was established.

At any time during said three (3) years, said corporation is

authorized and empowered to convey all of its property to
trustees for the benefit of stockholders, members, creditors,
and other persons in interest. From and after any such
conveyance by the corporation of its property in trust for the
benefit of its stockholders, members, creditors and others in
interest, all interest which the corporation had in the property
terminates, the legal interest vests in the trustees, and the
beneficial interest in the stockholders, members, creditors or
other persons in interest.

Upon winding up of the corporate affairs, any asset

distributable to any creditor or stockholder or member who is
unknown or cannot be found shall be escheated to the city or
municipality where such assets are located.

Except by decrease of capital stock and as otherwise allowed by

this Code, no corporation shall distribute any of its assets or
property except upon lawful dissolution and after payment of
all its debts and liabilities.
Following the voluntary or involuntary dissolution of a
corporation, liquidation is the process of settling the affairs of
said corporation, which consists of adjusting the debts and
claims, that is, of collecting all that is due the corporation, the
settlement and adjustment of claims against it and the payment
of its just debts.[44] More particularly, it entails the following:
Winding up the affairs of the corporation means the collection
of all assets, the payment of all its creditors, and the
distribution of the remaining assets, if any among the
stockholders thereof in accordance with their contracts, or if
there be no special contract, on the basis of their respective
interests. The manner of liquidation or winding up may be
provided for in the corporate by-laws and this would prevail
unless it is inconsistent with law.[45]
It may be undertaken by the corporation itself, through its
Board of Directors; or by trustees to whom all corporate assets
are conveyed for liquidation; or by a receiver appointed by the
SEC upon its decree dissolving the corporation.[46]

Glaringly, a derivative suit is fundamentally distinct and

independent from liquidation proceedings. They are neither
part of each other nor the necessary consequence of the other.
There is totally no justification for the Court of Appeals to
convert what was supposedly a derivative suit instituted by
respondents, on their own behalf and on behalf of Winchester,
Inc. against petitioners, to a proceeding for the liquidation of
Winchester, Inc.

While it may be true that the parties earlier reached an amicable

settlement, in which they agreed to already distribute the assets
of Winchester, Inc., and in effect liquidate said corporation, it
must be pointed out that respondents themselves repudiated
said amicable settlement before the RTC, even after the same
had been partially implemented; and moved that their case be
set for pre-trial. Attempts to again amicably settle the dispute
between the parties before the Court of Appeals were
unsuccessful.

Moreover, the decree of the Court of Appeals to remand the

case to the RTC for the "final settlement of corporate
concerns" was solely grounded on respondents' allegation in its
Position Paper that the parties had already filed before the
SEC, and the SEC approved, the petition to dissolve
Winchester, Inc. The Court notes, however, that there is
absolute lack of evidence on record to prove said allegation.
Respondents failed to submit copies of such petition for
dissolution of Winchester, Inc. and the SEC Certification
approving the same. It is a basic rule in evidence that each
party must prove his affirmative allegation. Since it was
respondents who alleged the voluntary dissolution of
Winchester, Inc., respondents must, therefore, prove it.[47] This
respondents failed to do.

Even assuming arguendo that the parties did submit a petition

for the dissolution of Winchester, Inc. and the same was
approved by the SEC, the Court of Appeals was still without
jurisdiction to order the final settlement by the RTC of the
remaining corporate concerns. It must be remembered that the
Complaint filed by respondents before the RTC essentially
prayed for the accounting and reimbursement by petitioners of
the corporate funds and assets which they purportedly
misappropriated for their personal use; surrender by the
petitioners of the corporate books for the inspection of
respondents; and payment by petitioners to respondents of
damages. There was nothing in respondents' Complaint which
sought the dissolution and liquidation of Winchester,
Inc. Hence, the supposed dissolution of Winchester, Inc.
could not have resulted in the conversion of respondents'
derivative suit to a proceeding for the liquidation of said
corporation, but only in the dismissal of the derivative suit
based on either compromise agreement or mootness of the
issues.

Clearly, in issuing its assailed Resolutions dated 18 July 2006

and 19 April 2007, the Court of Appeals already went beyond
the issues raised in respondents' Motion for
Reconsideration. Instead of focusing on whether it erred in
affirming, in its 15 February 2006 Decision, the dismissal by
the RTC of respondents' Complaint due to respondents' failure
to comply with the requirements for a derivative suit and
submit evidence to support their allegations, the Court of
Appeals unduly concentrated on respondents' unsubstantiated
allegation that Winchester, Inc. was already dissolved and
speciously ordered the remand of the case to the RTC for
proceedings so vitally different from that originally instituted
by respondents.

Despite the foregoing, the Court still deems it appropriate to

already look into the merits of respondents' Motion for
Reconsideration of the 15 February 2006 Decision of the Court
of Appeals, for the sake of finally putting an end to the case at
bar.

In their said Motion for Reconsideration, respondents argued

that: (1) they had sufficiently exhausted all remedies before
filing the derivative suit; and (2) respondent Joseph's
Supplemental Affidavit and its annexes should have been taken
into consideration, since the submission thereof was allowed by
the rules of procedure, as well as by the RTC in its Order dated
26 August 2004.
As regards the first ground of sufficient exhaustion by
respondents of all remedies before filing a derivative suit, the
Court subscribes to the ruling to the contrary of the Court of
Appeals in its Decision dated 16 February 2006.

The Court has recognized that a stockholder's right to institute

a derivative suit is not based on any express provision of the
Corporation Code, or even the Securities Regulation Code, but
is impliedly recognized when the said laws make corporate
directors or officers liable for damages suffered by the
corporation and its stockholders for violation of their fiduciary
duties. Hence, a stockholder may sue for mismanagement,
waste or dissipation of corporate assets because of a special
injury to him for which he is otherwise without redress. In
effect, the suit is an action for specific performance of an
obligation owed by the corporation to the stockholders to
assist its rights of action when the corporation has been put in
default by the wrongful refusal of the directors or management
to make suitable measures for its protection. The basis of a
stockholder's suit is always one in equity. However, it cannot
prosper without first complying with the legal requisites for its
institution.[48]

Section 1, Rule 8 of the Interim Rules of Procedure Governing

Intra-Corporate Controversies lays down the following
requirements which a stockholder must comply with in filing a
derivative suit:
Sec. 1. Derivative action. - A stockholder or member may bring
an action in the name of a corporation or association, as the
case may be, provided, that:
 (1) He was a stockholder or member at the time the acts or transactions
subject of the action occurred and at the time the action was filed;

(2) He exerted all reasonable efforts, and alleges the same with particularity
in the complaint, to exhaust all remedies available under the articles of
incorporation, by-laws, laws or rules governing the corporation or
partnership to obtain the relief he desires;

(3) No appraisal rights are available for the act or acts complained of; and

(4) The suit is not a nuisance or harassment suit.

A perusal of respondents' Complaint before the RTC would
reveal that the same did not allege with particularity that
respondents exerted all reasonable efforts to exhaust all
remedies available under the articles of incorporation, by-laws,
laws or rules governing Winchester, Inc. to obtain the relief
they desire.

Respondents assert that their compliance with said requirement

was contained in respondent Joseph's Affidavit, which was
attached to respondents' Complaint. Respondent Joseph
averred in his Affidavit that he tried for a number of times to
talk to petitioner Anthony to settle their differences, but the
latter would not listen. Respondents additionally claimed that
taking further remedies within the corporation would have
been idle ceremony, considering that Winchester, Inc. was a
family corporation and it was impossible to expect petitioners
to take action against themselves who were the ones accused of
wrongdoing.

The Court is not persuaded.

The wordings of Section 1, Rule 8 of the Interim Rules of
Procedure Governing Intra-Corporate Controversies are
simple and do not leave room for statutory construction. The
second paragraph thereof requires that the stockholder filing a
derivative suit should have exerted all reasonable efforts to
exhaust all remedies available under the articles of
incorporation, by-laws, laws or rules governing the corporation
or partnership to obtain the relief he desires; and to allege
such fact with particularity in the complaint. The obvious
intent behind the rule is to make the derivative suit the final
recourse of the stockholder, after all other remedies to obtain
the relief sought had failed.

The allegation of respondent Joseph in his Affidavit of his

repeated attempts to talk to petitioner Anthony regarding their
dispute hardly constitutes "all reasonable efforts to exhaust all
remedies available." Respondents did not refer to or mention
at all any other remedy under the articles of incorporation or
by-laws of Winchester, Inc., available for dispute resolution
among stockholders, which respondents unsuccessfully availed
themselves of. And the Court is not prepared to conclude that
the articles of incorporation and by-laws of Winchester, Inc.
absolutely failed to provide for such remedies.

Neither can this Court accept the reasons proffered by

respondents to excuse themselves from complying with the
second requirement under Section 1, Rule 8 of the Interim
Rules of Procedure Governing Intra-Corporate Controversies.
They are flimsy and insufficient, compared to the seriousness
of respondents' accusations of fraud, misappropriation, and
falsification of corporate records against the petitioners. The
fact that Winchester, Inc. is a family corporation should not in
any way exempt respondents from complying with the clear
requirements and formalities of the rules for filing a derivative
suit. There is nothing in the pertinent laws or rules supporting
the distinction between, and the difference in the requirements
for, family corporations vis-à-vis other types of corporations, in
the institution by a stockholder of a derivative suit.

The Court further notes that, with respect to the third and
fourth requirements of Section 1, Rule 8 of the Interim Rules
of Procedure Governing Intra-Corporate Controversies, the
respondents' Complaint failed to allege, explicitly or otherwise,
the fact that there were no appraisal rights available for the acts
of petitioners complained of, as well as a categorical statement
that the suit was not a nuisance or a harassment suit.

As to respondents' second ground in their Motion for

Reconsideration, the Court agrees with the ruling of the Court
of Appeals, in its 15 February 2006 Decision, that respondent
Joseph's Supplemental Affidavit and additional evidence were
inadmissible since they were only appended by respondents to
their Memorandum before the RTC. Section 8, Rule 2 of the
Interim Rules of Procedure Governing Intra-Corporate
Controversies is crystal clear that:
Sec. 8. Affidavits, documentary and other evidence. - Affidavits shall
be based on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify on the matters stated
therein. The affidavits shall be in question and answer form,
and shall comply with the rules on admissibility of evidence.

Affidavits of witnesses as well as documentary and other

evidence shall be attached to the appropriate pleading,
Provided, however, that affidavits, documentary and other
evidence not so submitted may be attached to the pre-trial
brief required under these Rules. Affidavits and other
evidence not so submitted shall not be admitted in
evidence, except in the following cases:
(1) Testimony of unwilling, hostile, or adverse party witnesses. A witness is
presumed prima facie hostile if he fails or refuses to execute an affidavit
after a written request therefor;

(2) If the failure to submit the evidence is for meritorious and compelling
reasons; and

(3) Newly discovered evidence.

In case of (2) and (3) above, the affidavit and evidence must be
submitted not later than five (5) days prior to its introduction
in evidence. (Emphasis ours.)
According to the afore-quoted provision, the parties should
attach the affidavits of witnesses and other documentary
evidence to the appropriate pleading, which generally should
mean the complaint for the plaintiff and the answer for the
respondent. Affidavits and documentary evidence not so
submitted must already be attached to the respective pre-trial
briefs of the parties. That the parties should have already
identified and submitted to the trial court the affidavits of their
witnesses and documentary evidence by the time of pre-trial is
strengthened by the fact that Section 1, Rule 4 of the Interim
Rules of Procedure Governing Intra-Corporate Controversies
require that the following matters should already be set forth in
the parties' pre-trial briefs:
Section 1. Pre-trial conference, mandatory nature. - Within five (5)
days after the period for availment of, and compliance with, the
modes of discovery prescribed in Rule 3 hereof, whichever
comes later, the court shall issue and serve an order
immediately setting the case for pre-trial conference, and
directing the parties to submit their respective pre-trial briefs.
The parties shall file with the court and furnish each other
copies of their respective pre-trial brief in such manner as to
ensure its receipt by the court and the other party at least five
(5) days before the date set for the pre-trial.

The parties shall set forth in their pre-trial briefs, among other
matters, the following:
xxxx

(4) Documents not specifically denied under oath by either or

both parties;

xxxx

(7) Names of witnesses to be presented and the summary of

their testimony as contained in their affidavits supporting their
positions on each of the issues;

(8) All other pieces of evidence, whether documentary or

otherwise and their respective purposes.
Also, according to Section 2, Rule 4 of the Interim Rules of
Procedure Governing Intra-Corporate Controversies,[49] it is
the duty of the court to ensure during the pre-trial conference
that the parties consider in detail, among other things,
objections to the admissibility of testimonial, documentary, and
other evidence, as well as objections to the form or substance
of any affidavit, or part thereof.

Obviously, affidavits of witnesses and other documentary

evidence are required to be attached to a party's pre-trial brief,
at the very last instance, so that the opposite party is given the
opportunity to object to the form and substance, or the
admissibility thereof. This is, of course, to prevent unfair
surprises and/or to avoid the granting of any undue advantage
to the other party to the case.

True, the parties in the present case agreed to submit the case
for judgment by the RTC, even before pre-trial, in accordance
with Section 4, Rule 4 of the Interim Rules of Procedure
Governing Intra-Corporate Controversies:
Sec. 4. Judgment before pre-trial. - If after submission of the pre-
trial briefs, the court determines that, upon consideration of
the pleadings, the affidavits and other evidence submitted
by the parties, a judgment may be rendered, the court may
order the parties to file simultaneously their respective
memoranda within a non-extendible period of twenty (20)
days from receipt of the order. Thereafter, the court shall
render judgment, either full or otherwise, not later than ninety
(90) days from the expiration of the period to file the
memoranda.
Even then, the afore-quoted provision still requires, before the
court makes a determination that it can render judgment before
pre-trial, that the parties had submitted their pre-trial briefs and
the court took into consideration the pleadings, affidavits and
other evidence submitted by the parties. Hence, cases wherein
the court can render judgment prior to pre-trial, do not depart
from or constitute an exception to the requisite that affidavits
of witnesses and documentary evidence should be submitted, at
the latest, with the parties' pre-trial briefs. Taking further into
account that under Section 4, Rule 4 of the Interim Rules of
Procedure Governing Intra-Corporate Controversies parties
are required to file their memoranda simultaneously, the same
would mean that a party would no longer have any opportunity
to dispute or rebut any new affidavit or evidence attached by
the other party to its memorandum. To violate the above-
quoted provision would, thus, irrefragably run afoul the former
party's constitutional right to due process.

In the instant case, therefore, respondent Joseph's

Supplemental Affidavit and the additional documentary
evidence, appended by respondents only to their Memorandum
submitted to the RTC, were correctly adjudged as inadmissible
by the Court of Appeals in its 15 February 2006 Decision for
having been belatedly submitted. Respondents neither alleged
nor proved that the documents in question fall under any of
the three exceptions to the requirement that affidavits and
documentary evidence should be attached to the appropriate
pleading or pre-trial brief of the party, which is particularly
recognized under Section 8, Rule 2 of the Interim Rules of
Procedure Governing Intra-Corporate Controversies.

WHEREFORE, premises considered, the Petition for Review

under Rule 45 of the Rules of Court is hereby
GRANTED. The assailed Resolutions dated 18 July 2006 and
19 April 2007 of the Court of Appeals in CA-G.R. SP No.
00185 are hereby REVERSED AND SET ASIDE. The
Decision dated 15 February 2006 of the Court of Appeals is
hereby AFFIRMED. No costs.

SO ORDERED.

Ynares-Santiago, (Chairperson), Velasco, Jr., Nachura, and Peralta, JJ.,

concur.

[1] Rollo, pp. 2-18.

Penned by Associate Justice Vicente L. Yap with Associate

[2]

Justices Arsenio J. Magpale and Apolinario D. Bruselas, Jr.,

concurring; rollo, pp. 20-23.

Penned by Associate Justice Arsenio J. Magpale with

[3]

Associate Justices Agustin S. Dizon and Francisco P. Acosta,

concurring; rollo, pp. 25-26.

[4] Rollo, pp. 32-43.

[5] Penned by Judge Silvestre A. Maamo, Jr.; rollo, pp. 27-30.

[6] CA rollo, pp. 39-45.

[7] Id. at 46-48.

The incorporators and their respective numbers of shares

[8]

were as follows:

No. of
Name Amount
shares
Eugene
3,000 P 300,000.00
Yutankin
Hao Bun Yam 3,000 P 300,000.00
Co To 2,000 P 200,000.00
Vicenta Lo
1,000 P 100,000.00
Chiong
Anthony S. Yu 1,000 P 100,000.00
P1,000,000.00 (Records, p.
10,000
14.)

[9] Father of petitioner Anthony and respondent Joseph.

[10] CA rollo, p. 78.

[11]In accordance with the recital of facts in the Complaint, if

the 1,000 shares of Anthony Yu were to be subtracted from the
total number of shares issued by Winchester, Inc., the other
incorporators would have a total of 9,000 shares. However,
according to the Deed of Sale dated 30 June 1985 (Records, p.
16), only 8,500 shares were sold to Winchester, Inc. by the
following shareholders:
Name No. of shares
Irinea Yutankin 3,000
Hao Bun Yam 3,000
Yu Kim Sing 1,500
Vicenta Lo Chiong 1,000
8,500
[12] CA rollo, pp. 56-57.

[13] Annexes E to Q; CA rollo, pp. 60-77.

[14] CA rollo, pp. 79-86.

[15] Id. at 87-91.

[16] Rule 16, Section 1(j) of the Rules of Court provides:

Section 1. Grounds. - Within the time for but before filing the
answer to the complaint or pleading asserting a claim, a motion
to dismiss may be made on any of the following grounds:

xxxx

(j) That a condition precedent for filing the claim has not been
complied with.

[17] Records, p. 52.

[18]The Court understood this term to refer to the inventories

of the general hardware and industrial supply and equipment
business.

[19] CA rollo, p. 214.

[20] Records, pp. 225-231.

[21] Rollo, pp. 55-56.

[22] Records, pp. 234-240.

[23] Rollo, p. 62.

[24] CA rollo, pp. 177-202, 94-106.

[25] Id. at 107-110.

[26] Id. at 111-128.

[27] Rollo, p. 30.

[28] Id. at 37-39.

[29] Id. at 39-42.

[30] Id. at 43.

[31] Id. at 57-61.

[32] Id. at 57.

[33] CA rollo, pp. 434-435.

[34] Rollo, pp. 65-66.

[35] Id. at 67-68.

[36] CA rollo, pp. 486-494.

The certificate of dissolution of respondent Winchester,

[37]

Inc. was not, however, made part of the records of the case
before the Court of Appeals or this Court.

[38] CA rollo, pp. 497-504.

[39] Rollo, pp. 21-22.

[40] Id. at 22.

[41] CA rollo, pp. 512-519.

[42] Rollo, pp. 71-72.

Chua v. Court of Appeals, G.R. No. 150793, 19 November

[43]

2004, 443 SCRA 259, 266-267.

See China Banking Corp. v. M. Michelin & Cie, 58 Phil 261,

[44]

266 (1933).

campos, THE CORPORATION CODE: COMMENTS,

[45]

NOTES AND SELECTED CASES (Vol. 2, 1990 ed.), p. 415.

[46] Id. at 415-416.

See Genuino Ice Co., Inc. v. Magpantay, G.R. No. 147790, 27

[47]

June 2006, 493 SCRA 195, 205.

[48] Bitong v. Court of Appeals, 354 Phil. 516, 545 (1998).

[49] Section 2, of Rule 4 provides:

Sec. 2. Nature and purpose of pre-trial conference. - During the pre-

trial conference, the court shall, with its active participation,
ensure that the parties consider in detail all of the following:

xxxx

(6) Objections to the admissibility of testimonial, documentary

and other evidence;

(7) Objections to the form or substance of any affidavit, or part

thereof.

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