Schulze vs. Tullet Prebon PDF

8/17/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 814 8/17/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 814
* FIRST DIVISION.

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VOL. 814, JANUARY 11, 2017 185
Ient vs. Tullett Prebon (Philippines), Inc.
G.R. No. 189158. January 11, 2017.*
party may seek judicial review via certiorari on the ground of
JAMES IENT and MAHARLIKA SCHULZE, petitioners, grave abuse of discretion.
vs. TULLETT PREBON (PHILIPPINES), INC.,
Moot and Academic; The “moot and academic” principle is not
respondent.
a magical formula that can automatically dissuade the courts in

resolving a case.—We likewise cannot give credit to respondent’s
G.R. No. 189530. January 11, 2017.*
claim of mootness. The “moot and academic” principle is not a

magical formula that can automatically dissuade the courts in
JAMES IENT and MAHARLIKA SCHULZE, petitioners,
resolving a case. The Court will not hesitate to resolve the legal
vs. TULLETT PREBON (PHILIPPINES), INC.,
and constitutional issues raised to formulate controlling
respondent.
principles to guide the bench, the bar, and the public, particularly
on a question capable of repetition, yet evading review.
Remedial Law; Criminal Procedure; Certiorari; The Supreme
Court (SC) had held that where the action of the Secretary of Remedial Law; Civil Procedure; Forum Shopping; Words and
Justice is tainted with arbitrariness, an aggrieved party may seek Phrases; Forum shopping is an act of a party, against whom an
judicial review via certiorari on the ground of grave abuse of adverse judgment or order has been rendered in one forum, of
discretion.—In Yambot v. Tuquero, 646 SCRA 249 (2011), we seeking and possibly getting a favorable opinion in another forum,
observed that under exceptional circumstances, a petition for other than by appeal or special civil action for certiorari.—As for
certiorari assailing the resolution of the Secretary of Justice the assertion that the present petitions are dismissible due to
(involving an appeal of the prosecutor’s ruling on probable cause) forum shopping since they were filed during the pendency of
may be allowed, notwithstanding the filing of an information with petitioners’ motion to quash and their co-accused’s motion for
the trial court. We reiterated the doctrine in Ching v. Secretary of judicial determination of probable cause with the trial court, we
Justice, 481 SCRA 609 (2006), that the acts of a quasi-judicial hold that there is no cause to dismiss these petitions on such
officer may be assailed by the aggrieved party through a petition ground. Forum shopping is an act of a party, against whom an
for certiorari and enjoined (a) when necessary to afford adequate adverse judgment or order has been rendered in one forum, of
protection to the constitutional rights of the accused; (b) when seeking and possibly getting a favorable opinion in another forum,
necessary for the orderly administration of justice; (c) when the other than by appeal or special civil action for certiorari.
acts of the officer are without or in excess of authority; (d) where It may also involve the institution of two or more actions or
the charges are manifestly false and motivated by the lust for proceedings grounded on the same cause on the supposition that
vengeance; and (e) when there is clearly no prima facie case one or the other court would make a favorable disposition. There
against the accused. In the case at bar, it is unsettling to perceive is no forum shopping where the suits involve different causes of
a seeming lack of uniformity in the rulings of the Secretary of action or different reliefs. Jurisprudence explains that: A motion
Justice on the issue of whether a violation of Section 31 entails to quash is the mode by which an accused assails, before entering
criminal or only civil liability and such divergent actions are his plea, the validity of the criminal complaint or the criminal
explained with a terse declaration of an alleged difference in information filed against him for insufficiency on its face in point
factual milieu and nothing further. Such a state of affairs is not of law, or for defect apparent on the face of the Information. The
only offensive to principles of fair play but also anathema to the motion, as a rule, hypothetically admits the truth of the facts
orderly administration of justice. Indeed, we have held that where spelled out in the complaint or information. The rules governing a
the action of the Secretary of Justice is tainted with arbitrariness, motion to quash are found under Rule 117 of the Revised Rules of
an aggrieved Court. Section 3 of this Rule enumerates the grounds for the
quashal of a complaint or information.
_______________
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186 SUPREME COURT REPORTS ANNOTATED VOL. 814, JANUARY 11, 2017 187
Ient vs. Tullett Prebon (Philippines), Inc. Ient vs. Tullett Prebon (Philippines), Inc.
Same; Same; Same; Even assuming separate actions have cused and another that is favorable to him. The rule calls for
been filed by different parties involving essentially the same the adoption of an interpretation which is more lenient to the
subject matter, no forum shopping is committed where the parties accused.
did not resort to multiple judicial remedies.—The action at bar is Same; Same; There is no compelling reason for the Supreme
a review on certiorari of the assailed Court of Appeals (CA) Court (SC) to construe Section 144 as similarly employing the term
decision wherein the main issue is whether or not the Secretary of “penalized” or “penalty” solely in terms of criminal liability.—The
Justice committed grave abuse of discretion in reversing the City crux of the Court’s ruling in Romualdez v. Commission on
Prosecutor’s dismissal of the criminal complaint. These Elections, 553 SCRA 370 (2008), is that, from the wording of
consolidated petitions may proceed regardless of whether or not Section 450(j), there is a clear legislative intent to treat as an
there are grounds to quash the criminal information pending in election offense any violation of the provisions of Republic Act No.
the court a quo. Neither do we find relevant the pendency of 8189. For this reason, we do not doubt that Section 46
petitioners’ co-accused’s motion for judicial determination of contemplates the term “penalty” primarily in the criminal law or
probable cause before the trial court. The several accused in these punitive concept of the term. There is no provision in the
consolidated cases had a number of remedies available to them Corporation Code using similarly emphatic language that evinces
and they are each free to pursue the remedy which they deem is a categorical legislative intent to treat as a criminal offense each
their best option. Certainly, there is no requirement that the and every violation of that law. Consequently, there is no
different parties in a case must all choose the same remedy. We compelling reason for the Court to construe Section 144 as
have held that even assuming separate actions have been filed by similarly employing the term “penalized” or “penalty” solely in
different parties involving essentially the same subject matter, no terms of criminal liability. In People v. Temporada, 574 SCRA 258
forum shopping is committed where the parties did not resort to (2008), we held that in interpreting penal laws, “words are given
multiple judicial remedies. In any event, we have stated in the their ordinary meaning and that any reasonable doubt about the
past that the rules on forum shopping are not always applied with meaning is decided in favor of anyone subjected to a criminal
inflexibility. statute.” Black’s Law Dictionary recognizes the numerous
Mercantile Law; Corporations; Rule of Lenity; The rule of conceptions of the term penalty and discusses in part that it is
lenity applies when the court is faced with two (2) possible “[a]n elastic term with many different shades of meaning; it
interpretations of a penal statute, one that is prejudicial to the involves idea of punishment, corporeal or pecuniary, or civil
accused and another that is favorable to him. The rule calls for the or criminal, although its meaning is generally confined to
adoption of an interpretation which is more lenient to the accused. pecuniary punishment.”
—As Section 144 speaks, among others, of the imposition of Same; Same; The Corporation Code was intended as a
criminal penalties, the Court is guided by the elementary rules of regulatory measure, not primarily as a penal statute.—The
statutory construction of penal provisions. First, in all criminal Corporation Code was intended as a regulatory measure, not
prosecutions, the existence of criminal liability for which the primarily as a penal statute. Sections 31 to 34 in particular were
accused is made answerable must be clear and certain. We have intended to impose exacting standards of fidelity on corporate
consistently held that “penal statutes are construed strictly officers and directors but without unduly impeding them in the
against the State and liberally in favor of the accused. When there discharge of their work with concerns of litigation. Considering
is doubt on the interpretation of criminal laws, all must be the object and policy of the Corporation Code to encourage the use
resolved in favor of the accused. Since penal laws should not be of the corporate entity as a vehicle for economic growth, we cannot
applied mechanically, the Court must determine whether their espouse a strict construction of Sections 31 and 34 as penal
application is consistent with the purpose and reason of the law.” offenses in relation to Section 144 in the absence of unambiguous
Intimately related to the in dubio pro reo principle is the rule of statutory language and legislative intent to that effect. When
lenity. The rule applies when the court is faced with two possible Congress intends to criminalize certain acts it does so in plain,
interpretations of a penal statute, one that is prejudicial to the ac- categorical language, otherwise such a statute would be

susceptible to constitutional attack. As earlier discussed, this can 189

be
VOL. 814, JANUARY 11, 2017 189

188
cision1 dated August 12, 2009 in C.A.-G.R. S.P. No. 109094,
which affirmed the Resolutions dated April 23, 20092 and
188 SUPREME COURT REPORTS ANNOTATED May 15, 20093 of the Secretary of Justice in I.S. No. 08-J-
Ient vs. Tullett Prebon (Philippines), Inc. 8651. The Secretary of Justice, through the Resolutions
dated April 23, 2009 and May 15, 2009, essentially ruled
that there was probable cause to hold petitioners, in
readily seen from the text of Section 45(j) of Republic Act No. conspiracy with certain former directors and officers of
8189 and Section 74 of the Corporation Code. We stress that had respondent Tullett Prebon (Philippines), Inc. (Tullett),
the Legislature intended to attach penal sanctions to Sections 31 criminally liable for violation of Sections 31 and 34 in
and 34 of the Corporation Code it could have expressly stated relation to Section 144 of the Corporation Code.
such intent in the same manner that it did for Section 74 of the From an assiduous review of the records, we find that
same Code. the relevant factual and procedural antecedents for these
Constitutional Law; Courts; It is a long standing principle in petitions can be summarized as follows:
jurisprudence that “courts will not resolve the constitutionality of a Petitioner Ient is a British national and the Chief
law, if the controversy can be settled on other grounds. The policy Financial Officer of Tradition Asia Pacific Pte. Ltd.
of the courts is to avoid ruling on constitutional questions and to (Tradition Asia) in Singapore.4 Petitioner Schulze is a
presume that the acts of the political departments are valid, absent Filipino/German who does Application Support for
a clear and unmistakable showing to the contrary.”—With respect Tradition Financial Services Ltd. in London (Tradition
to the minutiae of other arguments cited in the parties’ pleadings, London).5 Tradition Asia and Tradition London are
it is no longer necessary for the Court to pass upon the same in subsidiaries of Compagnie Financiere Tradition and are
light of our determination that there is no clear, categorical part of the “Tradition Group.” The Tradition Group is
legislative intent to define Sections 31 and 34 as offenses under allegedly the third largest group of Inter-dealer Brokers
Section 144 of the Corporation Code. We likewise refrain from (IDB) in the world while the corporate organization, of
resolving the question on the constitutionality of Section 144 of which respondent Tullett is a part, is supposedly the
the Corporation Code. It is a long standing principle in second largest. In other words, the Tradition Group and
jurisprudence that “courts will not resolve the constitutionality of Tullett are competitors in the interdealer broking business.
a law, if the controversy can be settled on other grounds. The IDBs purportedly “utilize the secondary fixed income and
policy of the courts is to avoid ruling on constitutional questions foreign exchange markets to execute their banks and their
and to presume that the acts of the political departments are bank customers’ orders, trade for a profit and manage their
valid, absent a clear and unmistakable showing to the contrary.” exposure to risk, including
PETITIONS for review on certiorari of a decision of the _______________

Court of Appeals.
The facts are stated in the opinion of the Court. 1 Rollo (G.R. No. 189158), Vol. I, pp. 64-84; penned by then Court of
Kapunan, Garcia & Castillo Law Offices for petitioner Appeals Associate Justice Martin S. Villarama, Jr. (a retired member of
James A. Ient and Maharlika Esperanza Schulze. this Court), with Associate Justices Vicente S.E. Veloso and Normandie B.
Villaraza & Angangco for respondent. Pizarro, concurring.
2 Id., at pp. 85-95.
LEONARDO-DE CASTRO, J.: 3 Id., at pp. 96-97.
4 Id., at p. 19.
In these consolidated Petitions for Review under Rule 45 5 Rollo (G.R. No. 189530), Vol. I, p. 7.
of the Rules of Court, petitioners James A. Ient (Ient) and
Maharlika C. Schulze (Schulze) assail the Court of Appeals’
De-

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190 SUPREME COURT REPORTS ANNOTATED

formerly a member of Tullett’s Board of Directors, and
other John and Jane Does. Villalon and Chuidian were
charged with using their former positions in Tullett to
credit, interest rate and exchange rate risks.” In the sabotage said company by orchestrating the mass
Philippines, the clientele for IDBs is mainly comprised of resignation of its entire brokering staff in order for them to
banks and financial institutions.6 join Tradition Philippines. With respect to Villalon, Tullett
Tullett was the first to establish a business presence in claimed that the former held several meetings between
the Philippines and had been engaged in the interdealer August 22 to 25, 2008 with members of Tullett’s Spot Desk
broking business or voice brokerage here since 1995.7 and brokering staff in order to convince them to leave the
Meanwhile, on the part of the Tradition Group, the needs company. Villalon likewise supposedly intentionally failed
of its Philippine clients were previously being serviced by to renew the contracts of some of the brokers. On August
Tradition Asia in Singapore. The other IDBs in the 25, 2008, a meeting was also allegedly held in Howzat Bar
Philippines are Amstel and Icap.8 in Makati City where petitioners and a lawyer of Tradition
Sometime in August 2008, in line with Tradition Group’s Philippines were present. At said meeting, the brokers of
motive of expansion and diversification in Asia, petitioners complainant Tullett were purportedly induced, en masse, to
Ient and Schulze were tasked with the establishment of a sign employment contracts with Tradition Philippines and
Philippine subsidiary of Tradition Asia to be known as were allegedly instructed by Tradition Philippines’ lawyer
Tradition Financial Services Philippines, Inc. (Tradition as to how they should file their resignation letters.
Philippines).9 Tradition Philippines was registered with the Complainant also claimed that Villalon asked the
Securities and Exchange Commission (SEC) on September brokers present at the meeting to call up Tullett’s clients to
19, 200810 with petitioners Ient and Schulze, among others, inform them that they had already resigned from the
named as incorporators and directors in its Articles of company and were moving to Tradition Philippines. On
Incorporation.11 August 26, 2008, Villalon allegedly informed Mr. Barry
On October 15, 2008, Tullett, through one of its Dennahy, Chief Operating Officer of Tullett Prebon in the
directors, Gordon Buchan, filed a Complaint-Affidavit12 Asia-Pacific, through electronic mail that all of Tullett’s
with the City Prosecution Office of Makati City against the brokers had resigned. Subsequently, on September 1, 2008,
officers/employees of the Tradition Group for violation of in another meeting with Ient and Tradition Philippines’
the Corporation Code. Impleaded as respondents in the counsel, indemnity contracts in favor of the resigning
Complaint-Affidavit were petitioners Ient and Schulze, employees were purportedly distributed by Tradition
Jaime Villalon (Villalon), who was formerly President and Philippines. According to Tullett, respondents Villalon and
Managing Director of Tullett, Mercedes Chuidian Chuidian (who were still its directors or officers at the
(Chuidian), who was times material to the Complaint-Affidavit) violated
Sections 31 and 34 of the Corporation Code which made
_______________ them criminally liable under Section 144. As for petitioners
Ient and Schulze, Tullett asserted that they conspired
6 Rollo (G.R. No. 189158), Vol. I, pp. 19-22.

7 See Tullett’s 2007 General Information Sheet, id., at p. 112.

8 Id., at pp. 21-22.
9 Rollo (G.R. No. 189530), Vol. I, p. 10. 192
10 See 2008 General Information Sheet of Tradition Philippines, id., at
p. 240.
12 Id., at pp. 98-111.
with Villalon and Chuidian in the latter’s acts of disloyalty

against the company.13
Villalon and Chuidian filed their respective Counter-
191
Affivadits.14
Villalon alleged that frustration with management
VOL. 814, JANUARY 11, 2017 191 changes in Tullett Prebon motivated his personal decision
Ient vs. Tullett Prebon (Philippines), Inc. to move from Tullett and accept the invitation of a Leonard
Harvey (also formerly an executive of Tullett) to enlist with life. Like Villalon, she stressed that her resignation from
the Tradition Group. As a courtesy to the brokers and staff, Tullett and subsequent transfer to Tradition Philippines
he informed them of his move contemporaneously with the did not fall under any of the prohibited acts under Sections
tender of his resignation letter and claimed that his 31 and 34. Section 144 of the Corporation Code purportedly
meetings with the brokers was not done in bad faith as it only applies to provisions of said Code that do not provide
was but natural, in light of their long working relationship, for any penalty while Sections 31 and 34 already provide
that he share with them his plans. The affidavit of for the penalties for their violation — damages, accounting
Engelbert Wee should allegedly be viewed with great and restitution. In her view, that Section 34 provided for
caution since Wee was one of those who accepted the ratification of the acts of the erring corporate director,
employment with Tradition Philippines but changed his trustee or office evinced legislative intent to exclude
mind and was subsequently appointed Managing Director violation of Section 34 from criminal prosecution. She
(Villalon’s former position) as a prize for his return. argued that Section 144 as a penal provision should be
Villalon further argued that his resignation from Tullett strictly construed against the State and liberally in favor of
was done in the exercise of his fundamental rights to the the accused and Tullett has failed to substantiate its
pursuit of life and the exercise of his profession; he can charge of bad faith on her part.16
freely choose to avail of a better life by seeking greener In her Counter-Affidavit,17 petitioner Schulze denied the
pastures; and his actions did not fall under any of the charges leveled against her. She pointed out that the
prohibited acts under Sections 31 and 34 of the Corporation Corporation Code is not a “special law” within the
Code. It is likewise his contention that Section 144 of the contemplation of Article 1018 of the Revised Penal Code on
Corporation Code applies only to violations of the the supplementary application of the Revised Penal Code to
Corporation Code which do not provide for a penalty while special laws since
Sections 31 and 34 already provide for the applicable
penalties for violations of said provisions — damages, _______________
accounting and restitution. Citing the Department of
Justice (DOJ) Resolution dated July 30, 2008 in UCPB v. 15 Id., at pp. 203-223.
Antiporda, Villalon claimed that the DOJ had previously 16 Id., at pp. 256-273.
proclaimed that Section 31 is not a penal provision of law 17 Id., at pp. 308-313.
but only the basis of a cause of action for civil liability. 18 Article 10 of the REVISED PENAL CODE STATES:
Thus, he Art. 10. Offenses not subject to the provisions of this Code.—Offenses
which are or in the future may be punishable under special laws are not
_______________ subject to the provisions of this Code. This Code shall be supplementary to
such laws, unless the latter should specially provide the contrary.
13 Id., at pp. 102-107.
14 Id., at pp. 200-254 and 255-295.

194
193
VOL. 814, JANUARY 11, 2017 193
Ient vs. Tullett Prebon (Philippines), Inc. said provision purportedly applies only to “special penal
laws.” She further argued that “[s]ince the Corporation
concluded that there was no probable cause that he Code does not expressly provide that the provisions of the
violated the Corporation Code nor was the charge of Revised Penal Code shall be made to apply suppletorily,
conspiracy properly substantiated.15 nor does it adopt the nomenclature of penalties of the
Chuidian claimed that she left Tullett simply to seek Revised Penal Code, the provisions of the latter cannot be
greener pastures. She also insisted the complaint did not made to apply suppletorily to the former as provided for in
allege any act on her part that is illegal or shows her the first sentence of Article 10 of the Revised Penal
participation in any conspiracy. She merely exercised her Code.”19 Thus, she concluded that a charge of conspiracy
right to exercise her chosen profession and pursue a better which has for its basis Article 8 of the Revised Penal Code

cannot be made applicable to the provisions of the In a Consolidated Reply-Affidavit23 notarized on

Corporation Code. January 22, 2009, Tullett argued that Villalon, Chuidian,
Schulze also claimed that the resignations of Tullett’s Schulze, and Ient have mostly admitted the acts attributed
employees were done out of their own free will without to them in the Complaint-Affidavit and only attempted to
force, intimidation or pressure on her and Ient’s part and characterize said acts as “normal,” “innocent” or
were well within said employees’ right to “free choice of “customary.” It was allegedly evident from the Counter-
employment.”20 Affidavits that the resignation of Tullett’s employees was
For his part, petitioner Ient alleged in his Counter- an orchestrated plan and not simply motivated by their
Affidavit that the charges against him were merely filed to seeking “greener pastures.” Purported employee
harass Tradition Philippines and prevent it from movements in the industry between the major companies
penetrating the Philippine market. He further asserted are irrevelant since such movements are subject to
that due to the highly specialized nature of the industry, contractual obligations. Tullett likewise denied that its
there has always been a regular flow of brokers between working environment was stringent and “weird.” Even
the major players. He claimed that Tradition came to the assuming that Villalon and Chuidian were dissatisfied with
Philippines in good faith and with a sincere desire to foster their employment in Tullett, this would supposedly not
healthy competition with the other brokers. He averred justify nor exempt them from violating their duties as
that he never forced anyone to join Tradition Philippines Tullett’s officers/directors. There was purportedly no
and the Tullett employees’ signing on with Tradition violation of their constitutional rights to liberty or to
Philippines was their voluntary act since they were exercise their profession as such rights are not unbridled
discontented with the working environment in Tullett. and subject to the laws of the State. In the case of Villalon
Adopting a similar line of reasoning as Schulze, Ient and Chuidian, they had to comply with their duties found
believed that the Revised Penal Code could not be made in Sections 31 and 34 of the Corporation Code. Tullett
suppletorily applicable to the Corporation Code so as to asserts that Section 144 applies to the case at bar since the
charge him as a conspirator. According to Ient, he merely DOJ Resolution in UCPB is not binding as it applies only to
acted within his rights when he offered job opportunities to the parties therein and it likewise involved facts different
any interested person as it was within the employees’ from the present case. Relying on Home
rights to
_______________
_______________
21 Id., at p. 323.
19 Rollo (G.R. No. 189158), Vol. I, p. 312. 22 Id., at pp. 314-323.
20 Id. 23 Id., at pp. 370-401.

195 196
VOL. 814, JANUARY 11, 2017 195 196 SUPREME COURT REPORTS ANNOTATED
Ient vs. Tullett Prebon (Philippines), Inc. Ient vs. Tullett Prebon (Philippines), Inc.
change their employment, especially since Article 23 of the Insurance Company v. Eastern Shipping Lines,24 Tullett
Universal Declaration of Human Rights (of which the argued that Section 144 applies to all other violations of
Philippines is a signatory) provides that “everyone has the the Corporation Code without exception. Article 8 of the
right to work, to free choice of employment, to just and Revised Penal Code on conspiracy was allegedly applicable
favorable conditions of work and to protection against to the Corporation Code as a special law with a penal
unemployment.”21 He also denounced the Complaint- provision.25
Affidavit and the affidavits of Tullett employees attached In a Supplemental Complaint-Affidavit26 likewise
thereto as self-serving or as an exaggeration/twisting of the notarized on January 22, 2009, Tullett included Leonard
true events.22 James Harvey (Harvey) in the case and alleged that it
learned of Harvey’s complicity through the Counter-

Affidavit of Villalon. Tullett claimed that Harvey, who was of [Tullett]. There is also no showing that they acquired any
Chairman of its Board of Directors at the time material to personal or pecuniary interest in conflict with their duty as
the Complaint, also conspired to instigate the resignations directors of [Tullett]. Neither was there a showing that they
of its employees and was an indispensable part of the attempted to acquire or acquired, in violation of their duty as
sabotage committed against it. directors, any interest adverse to [Tullett] in respect [to] any
In his Rejoiner-Affidavit,27 Ient vehemently denied that matter which has been reposed in them in confidence.
there was a prearranged plan to sabotage Tullett. x x x x
According to Ient, Gordon Buchan of Tullett thought too The issue that respondent Villalon informed the brokers of his
highly of his employer to believe that the Tradition Group’s plan to resign from [Tullett] and to subsequently transfer to
purpose in setting up Tradition Philippines was specifically Tradition is not in dispute. However, we are unable to agree that
to sabotage Tullett. He stressed that Tradition Philippines the brokers were induced or coerced into resigning from [Tullett]
was set up for legitimate business purposes and Tullett and transferring to Tradition themselves. x x x As the record
employees who signed with Tradition did so out of their shows, Mr. Englebert Wee and the six (6) members of the broking
own free will and without any force, intimidation, pressure staff who stand as [Tullett]’s witnesses, also initially resigned
or inducement on his and Schulze’s part. All he allegedly from [Tullett] and transferred to Tradition but backed out from
did was confirm the rumors that the Tradition Group was their contract of employment with Tradition and opted to remain
planning to set up a Philippine office. Echoing the with [Tullett].
arguments of Villalon and Chuidian, Ient claimed that (a) Even assuming ex gratia argumenti that the brokers were
there could be no violation of Sections 31 and 34 of the induced by the respondents or anyone of them to leave their
Corporation as these sections refer to corporate acts or employment with [Tullett], such induce-
corporate opportunity; (b) Section 144 of the same Code
cannot be applied to Sections 31 and 34 which already _______________
contains the penalties or remedies for their violation;
28 Id., at pp. 455-472.
_______________

24 208 Phil. 359; 123 SCRA 424 (1983).
198
26 Id., at pp. 402-411.
27 Id., at p. 429.


197 ment may only give rise to civil liability for damages
against the respondents but no criminal liability would
attach on them. x x x.
VOL. 814, JANUARY 11, 2017 197
On the alleged inducements of clients of [Tullett] to
Ient vs. Tullett Prebon (Philippines), Inc. transfer to Tradition, there is no showing that clients of
[Tullett] actually transferred to Tradition. Also, the
and (c) conspiracy under the Revised Penal Code cannot be allegation that respondents orchestrated the mass
applied to the Sections 31 and 34 of the Corporation Code. resignation of employees of [Tullett] to destroy or shut
In a Resolution28 dated February 17, 2009, State down its business and to eliminate it from the market in
Prosecutor Cresencio F. Delos Trinos, Jr. (Prosecutor Delos order that Tradition could take its place is baseless and
Trinos), Acting City Prosecutor of Makati City, dismissed speculative. Significantly, it is noted that despite the
the criminal complaints. He reasoned that: resignations of respondents Villalon and Chuidian and the
majority of the broking staff and their subsequent transfer
It is our considered view that the acts ascribed [to] respondents to Tradition, the business of [Tullet] was not destroyed or
Villalon and Chuidian did not constitute any of the prohibited shut down. [Tullett] was neither eliminated from the
acts of directors or trustees enunciated under Section 31. Their market nor its place in the market taken by Tradition.
cited actuations certainly did not involve voting for or assenting to x x x
patently unlawful acts of [Tullett] nor could the same be
construed as gross negligence or bad faith in directing the affairs
In the same vein, the “corporate opportunity doctrine” otherwise would have accrued to the corporation. Section 34, on
enunciated under Section 34 does not apply herein and the other hand, penalizes directors who would be guilty of
cannot be rightfully raised against respondents Villalon disloyalty to the corporation by accounting to the corporation all
and Chuidian. Under Section 34, a director of a corporation profits that they may realize by refunding the same.31
is prohibited from competing with the business in which
his corporation is engaged in as otherwise he would be
guilty of disloyalty where profits that he may realize will Consequently, Tullett filed a petition for review with the
have to go to the corporate funds except if the disloyal act Secretary of Justice to assail the foregoing resolution of the
is ratified. Suffice it to say that their cited acts did not Acting City Prosecutor of Makati City. In a Resolution32
involve any competition with the business of [Tullett].29 dated April 23, 2009, then Secretary of Justice Raul M.
On the issue of conspiracy, Prosecutor Delos Trinos Gonzalez reversed and set aside Prosecutor Delos Trinos’s
found that since Villalon and Chuidian did not commit any resolution and directed the latter to file the information for
acts in violation of Sections 31 and 34 of the Corporation violation of Sections 31 and 34 in relation to Section 144 of
Code, the charge of conspiracy against Schulze and Ient the Corporation Code against Villalon, Chuidian, Harvey,
had no basis. As for Harvey, said Resolution noted that he Schulze, and
was similarly situated as Villalon and Chuidian; thus, the
considerations in the latter’s favor were applicable to the _______________
former.30 Lastly, on
31 Id., at p. 470.
32 Id., at pp. 85-95.
_______________

29 Id., at pp. 467-469.

30 Id., at p. 469.
200

199
VOL. 814, JANUARY 11, 2017 199 Ient before the proper court. As can be gleaned from the
Ient vs. Tullett Prebon (Philippines), Inc. April 23, 2009 Resolution, the Secretary of Justice ruled
that:
the applicability of Section 144 to Sections 31 and 34,
It is evident from the case at bar that there is probable cause to
Prosecutor Delos Trinos relied on the reasoning in the DOJ
indict respondents Villalon, Chuidian and Harvey for violating
Resolution dated July 30, 2008 in UCPB v. Antiporda
Section 31 of the Corporation Code. Indeed, there is prima facie
issued by then Secretary of Justice Raul M. Gonzalez, to
evidence to show that the said respondents acted in bad faith in
wit:
directing the affairs of complainant. Undeniably, respondents
We maintain and reiterate the ratiocination of the Secretary of Villalon, Chuidian and Harvey occupied positions of high
Justice in United Coconut Planters Bank v. Tirso Antiporda, et al., responsibility and great trust as they were members of the board
I.S. No. 2007-633 promulgated on July 30, 2008, thus — “It must of directors and corporate officers of complainant. x x x As such,
be noted that Section 144 covers only those provisions ‘not they are required to administer the corporate affairs of
otherwise specifically penalized therein.’ In plain language, this complainant for the welfare and benefit of the stockholders and to
means that the penalties under Section 144 apply only when the exercise the best care, skill and judgment in the management of
other provisions of the Corporation Code do not yet provide the corporate business and act solely for the interest of the
penalties for noncompliance therewith.” corporation.
A reading of Sections 31 and 34 shows that penalties for x x x x
violations thereof are already provided therein. Under Section 31, Respondents Villalon and Chuidian acted with dishonesty and
directors or trustees are made liable for damages that may result in fraud. They went to the extent of having their several meetings
from their fraudulent or illegal acts. Also, directors, trustees or away from complainant’s office so as to secretly entice and induce
officers who attempt to acquire or acquire any interest adverse to all its brokers to transfer to Tradition. Respondents Villalon and
the corporation will have to account for the profits which Chuidian did not entice merely one or two employees of

complainant but admittedly, the entire broking staff of the latter.

This act would lead to the sure collapse of complainant. x x x. Ient and Schulze moved for reconsideration of the
Further, respondents Villalon and Chuidian acquired personal foregoing Resolution by the Secretary of Justice.
and pecuniary interest in conflict with their duties as directors of Meanwhile, on May 14, 2009, two Informations, one for
complainant. Respondents Villalon and Chuidian committed the violation of Section 31 and another for violation of Section
acts complained of in order to transfer to Tradition, to have a 34, were filed by Prosecutor
higher salary and position and bring the clients and business of
complainant with them. The fact that Tradition is not yet _______________
incorporated at that time is of no consequence.
Moreover, respondents Villalon and Chuidian violated Section 33 Id., at pp. 91-93.
34 of the Corporation Code when they acquired business
opportunity adverse to that of complainant. When respondents
Villalon and Chuidian told the brokers of complainant to convince
their clients to trans- 202

201 Ient vs. Tullett Prebon (Philippines), Inc.
Delos Trinos with the Metropolitan Trial Court of Makati

VOL. 814, JANUARY 11, 2017 201
City. In a Resolution dated May 15, 2009, the Secretary of
Ient vs. Tullett Prebon (Philippines), Inc. Justice denied the motion for reconsideration filed by
petitioners. Unsatisfied with this turn of events, petitioners
fer their business to Tradition, the profits of complainant which Ient and Schulze brought the matter to the Court of
rightly belonging to it will be transferred to a competitor company Appeals via a petition for certiorari under Rule 65 which
to be headed by respondents. was docketed as C.A.-G.R. S.P. No. 109094.
The provision of Section 144 of the Corporation Code is also In a Decision dated August 12, 2009, the Court of
applicable in the case at bar as the penal provision provided Appeals affirmed the Secretary of Justice’s Resolutions
therein is made applicable to all violations of the Corporation dated April 23, 2009 and May 15, 2009, after holding that:
Code, not otherwise specifically penalized. Moreover, the factual
Respondent Secretary correctly stressed that Sections 31 and
milieu of the case entitled “Antiporda, et al., IS No. 2007-633” is
34 must be read in the light of the nature of the position of a
inapplicable as the facts of the above entitled case is different.
director and officer of the corporation as highly imbued with trust
x x x x
and confidence. Petitioners’ rigid interpretation of clear-cut
As for respondent Harvey’s probable indictment, aside from not
instances of liability serves only to undermine the values of
submitting his counter-affidavit, the counter-affidavit of
loyalty, honesty and fairness in managing the affairs of the
respondent Villalon showed that he is also liable as such since the
corporation, which the law vested on their position. Besides, this
idea to transfer the employment of complainant’s brokers was
Court can hardly deduce abuse of discretion on the part of
broached by him.
respondent Secretary in considering a conflict of interest scenario
Anent respondents Ient and Schulze, record revealed that they
from petitioners’ act of advancing the interest of an emerging
conspired with respondents Villalon and Chuidian when they
competitor in the field rather than fiercely protecting the business
actively participated in the acts complained of. They presented
of their own company. As aptly pointed out by the private
the employment contracts and indemnity agreements with the
respondent, the issue is not the right of the employee brokers to
brokers of complainant in a series of meetings held with
seek greener pastures or better employment opportunities but the
respondents Villalon and Chuidian. Respondent Ient signed the
breach of fiduciary duty owed by its directors and officers.
contracts as CFO of Tradition Asia and even confirmed the
In the commentary on the subject of duties of directors and
transfer of respondent Villalon to Tradition. Respondent Schulze
controlling stockholders under the Corporation Code, Campos
admitted that the purpose of her sojourn in the Philippines was to
explained:
assist in the formation of Tradition. Thus, it is clear that their
Fiduciary Duties; Conflict of Interest
role in the acts complained of were instrumental for respondents
“A director, holding as he does a position of trust, is a
Villalon and Chuidian to violate their duties and responsibilities
fiduciary of the corporation. As such, in case of conflict of
as directors and officers of complainant.33
his interest with those of the corporation, he cannot
sacrifice the latter without incurring liability for his disloyal responding information against the accused, including herein
act. The fiduciary duty has many petitioners.
As to petitioners’ contention that conspiracy had not been
established by the evidence, suffice it to state that such stance is
belied by their own admission of the very acts complained of in
203
the Complaint-Affidavit, the defense put up by them consists
merely in their common argument that no crime was committed
because private respondent’s brokers had the right to resign and
VOL. 814, JANUARY 11, 2017 203 transfer employment if they so decide.
Ient vs. Tullett Prebon (Philippines), Inc. It bears to reiterate that probable cause is such set of facts and
circumstances which would lead a reasonably discreet and
prudent man to believe that the offense charged in the
ramifications, and the possible conflict-of-interest
Information or any offense included therein has been committed
situations are almost limitless, each possibility
by the person sought to be arrested. In determining probable
posing different problems. There will be cases where a
cause, the average man weighs the facts and circumstances
breach of trust is clear. Thus, where a director converts for
without resorting to the calibrations of the rules of evidence of
his own use funds or property belonging to the corporation,
which he has no technical knowledge. He relies on common sense.
or accepts material benefits for exercising his powers in
Thus, a finding of probable cause does not require an inquiry into
favor of someone seeking to do business with the
whether there is sufficient evidence to procure a conviction. It is
corporation, no court will allow him to keep the profit he
enough that it is believed that the act or omission complained of
derives from his wrongdoing. In many other cases, however,
constitutes the offense charged. Precisely, there is a trial for the
the line of demarcation between the fiduciary relationship
reception of evidence of the prosecution in support of the charge.
and a director’s personal right is not easy to define. The
Finally, the Court finds no merit in the argument of petitioners
Code has attempted at least to lay down general rules
that Sec. 144 is not applicable since Sec. 31 already provides for
of conduct and although these serve as guidelines for
liability for damages against the guilty director or corporate
directors to follow, the determination as to whether
officer.
in a given case the duty of loyalty has been violated
“SEC. 144. Violations of the Code.—Violations of
has ultimately to be decided by the court on the
any of the provisions of this Code or its amendments
case’s own merits.” x x x.
not otherwise specifically penalized therein shall be
Prescinding from the above, We agree with the Secretary of
punished by a fine of not less than one thousand (P1,000.00)
Justice that the acts complained of in this case establish a prima
pesos but not more than ten thousand (P10,000.00) pesos or
facie case for violation of Sec. 31 such that the accused directors
by imprisonment for not less than thirty (30) days but not
and officers of private respondent corporation are probably guilty
more than five (5) years, or both, in the discretion of the
of breach of bad faith in directing the affairs of the corporation.
court. If the violation is committed by a corporation, the
The breach of fiduciary duty as such director and corporate office
same may, after notice and
(sic) are evident from their participation in recruiting the brokers
employed in the corporation, inducing them to accept employment
contracts with the newly formed firm engaged in competing
business, and securing these new hires against possible breach of
contract complaint by the corporation through indemnity 205
contracts provided by Tradition Philippines. Clearly, no grave
abuse of discretion was committed by the respondent Secretary in
VOL. 814, JANUARY 11, 2017 205
reversing the city prosecutor’s dismissal of the criminal complaint
and ordering the filingof the cor- Ient vs. Tullett Prebon (Philippines), Inc.
hearing, be dissolved in appropriate proceedings before the

Securities and Exchange Commission; Provided, That such
204
dissolution shall not preclude the institution of appropriate
action against the director, trustee or officer of the
corporation responsible for the said violation; Provided,
204 SUPREME COURT REPORTS ANNOTATED further, That nothing in this section shall be construed to

repeal the other causes for dissolution of a corporation necessary to afford adequate protection to the
provided in this Code.” x x x. constitutional rights of the accused; (b) when necessary for
“Damages” as the term is used in Sec. 31 cannot be deemed as the orderly administration of justice; (c) when the acts of
punishment or penalty as this appears in the above cited criminal the officer are without or in excess of authority; (d) where
provision of the Corporation Code. Such “damage” implies civil, the charges are manifestly false and motivated by the lust
rather than, criminal liability and hence does not fall under those for vengeance; and (e) when there is clearly no prima facie
provisions of the Code which are not “specifically penalized” with case against the accused.
fine or imprisonment.34 In the case at bar, it is unsettling to perceive a seeming
lack of uniformity in the rulings of the Secretary of Justice
on the issue of whether a violation of Section 31 entails
In light of the adverse ruling of the Court of Appeals, criminal or only civil liability and such divergent actions
petitioners Ient and Schulze filed separate petitions for are explained with a terse declaration of an alleged
review with this Court. After requiring further pleadings difference in factual milieu and nothing further. Such a
from the parties, the Court directed the parties to submit state of affairs is not only offensive to principles of fair play
their memoranda to consolidate their positions on the but also anathema to the orderly administration of justice.
issues. Indeed, we have held that where the action of the Secretary
At the outset, it should be noted that respondent Tullett of Justice is tainted with arbitrariness, an aggrieved party
interposed several procedural objections which we shall may seek judicial review via certiorari on the ground of
dispose of first. grave abuse of discretion.38
Anent respondent’s contentions that the present We likewise cannot give credit to respondent’s claim of
petitions (assailing the issuances of the Secretary of Justice mootness. The “moot and academic” principle is not a
on the question of probable cause) had become moot and magical formula that can automatically dissuade the courts
academic with the filing of the Informations in the trial in resolv-
court and that under our ruling in Advincula v. Court of
Appeals35 the filing of a petition for certiorari with the
_______________
appellate court was the improper remedy as findings of the
Secretary of Justice on 36 661 Phil. 599, 606; 646 SCRA 249, 256 (2011).
37 517 Phil. 151, 170; 481 SCRA 609, 628 (2006).
_______________ 38 Ty v. De Jemil, 653 Phil. 356, 369; 638 SCRA 671, 685 (2010).
34 Id., at pp. 81-83.

35 397 Phil. 641; 343 SCRA 583 (2000).
207

206 VOL. 814, JANUARY 11, 2017 207
ing a case.39 The Court will not hesitate to resolve the legal
and constitutional issues raised to formulate controlling
principles to guide the bench, the bar, and the public,
probable cause must be respected, we hold that these cited particularly on a question capable of repetition, yet evading
rules are not inflexible. review.40
In Yambot v. Tuquero,36 we observed that under As for the assertion that the present petitions are
exceptional circumstances, a petition for certiorari dismissible due to forum shopping since they were filed
assailing the resolution of the Secretary of Justice during the pendency of petitioners’ motion to quash and
(involving an appeal of the prosecutor’s ruling on probable their co-accused’s motion for judicial determination of
cause) may be allowed, notwithstanding the filing of an probable cause with the trial court, we hold that there is no
information with the trial court. We reiterated the doctrine cause to dismiss these petitions on such ground.
in Ching v. Secretary of Justice37 that the acts of a quasi- Forum shopping is an act of a party, against whom an
judicial officer may be assailed by the aggrieved party adverse judgment or order has been rendered in one forum,
through a petition for certiorari and enjoined (a) when
of seeking and possibly getting a favorable opinion in requirement that the different parties in a case must all
another forum, other than by appeal or special civil choose the same remedy. We have held that even assuming
action for certiorari. It may also involve the institution separate actions have been filed by different parties
of two or more actions or proceedings grounded on the same involving essentially the same subject matter, no forum
cause on the supposition that one or the other court would shopping is committed where the parties did not resort to
make a favorable disposition.41 There is no forum shopping multiple judicial remedies.44 In any event, we have stated
where the suits involve different causes of action or in the past that the rules on forum shopping are not always
different reliefs.42 applied with inflexibility.45
Jurisprudence explains that: As a final point on the technical aspects of this case, we
reiterate here the principle that in the exercise of the
A motion to quash is the mode by which an accused assails, Courts equity jurisdiction, procedural lapses may be
before entering his plea, the validity of the criminal complaint or disregarded so
the criminal information filed against him for insufficiency on its
face in point of law, or for defect apparent on the face of the
_______________
Information. The motion, as a rule, hypothetically admits the
truth of the facts spelled out in the complaint or information. The 43 Los Baños v. Pedro, 604 Phil. 215, 227-228; 586 SCRA 303, 314
rules governing a motion to quash are found under Rule 117 of (2009).
the Revised Rules of Court. Section 3 of this Rule enu- 44 Development Bank of the Philippines v. Court of Appeals, 526 Phil.
525, 548-549; 494 SCRA 25, 51 (2006).
_______________ 45 London v. Baguio Country Club Corporation, 439 Phil. 487, 492;
390 SCRA 618, 622 (2002).
39 Funa v. Villar, 686 Phil. 571, 583; 670 SCRA 579, 592 (2012).
40 Deutsche Bank AG v. Court of Appeals, 683 Phil. 80, 88; 667 SCRA
82, 91 (2012).
41 People v. Grey, 639 Phil. 535, 545; 625 SCRA 523, 532 (2010).
209
42 Chavez v. Court of Appeals, 624 Phil. 396, 400; 610 SCRA 399, 403
(2010).
VOL. 814, JANUARY 11, 2017 209

208
that a case may be resolved on its merits.46 Indeed where
strong considerations of substantive justice are manifest in
208 SUPREME COURT REPORTS ANNOTATED a petition, the strict application of the rules of procedure
may be relaxed.47 This is particularly true in these
consolidated cases where legal issues of first impression
have been raised.
merates the grounds for the quashal of a complaint or We now proceed to rule upon the parties’ substantive
information. x x x.43 (Citation omitted) arguments.
On the other hand, the action at bar is a review on The main bone of disagreement among the parties in
certiorari of the assailed Court of Appeals decision wherein this case is the applicability of Section 144 of the
the main issue is whether or not the Secretary of Justice Corporation Code to Sections 31 and 34 of the same statute
committed grave abuse of discretion in reversing the City such that criminal liability attaches to violations of
Prosecutor’s dismissal of the criminal complaint. These Sections 31 and 34. For convenient reference, we quote the
consolidated petitions may proceed regardless of whether contentious provisions here:
or not there are grounds to quash the criminal information
pending in the court a quo. SECTION 31. Liability of Directors, Trustees or Officers.—
Neither do we find relevant the pendency of petitioners’ Directors or trustees who willfully and knowingly vote for or
co-accused’s motion for judicial determination of probable assent to patently unlawful acts of the corporation or who are
cause before the trial court. The several accused in these guilty of gross negligence or bad faith in directing the affairs of
consolidated cases had a number of remedies available to the corporation or acquire any personal or pecuniary interest in
them and they are each free to pursue the remedy which conflict with their duty as such directors or trustees shall be liable
they deem is their best option. Certainly, there is no jointly and severally for all damages resulting therefrom suffered
by the corporation, its stockholders or members and other Petitioners posit that Section 144 only applies to the
persons. provisions of the Corporation Code or its amendments “not
When a director, trustee or officer attempts to acquire or otherwise specifically penalized” by said statute and should
acquires, in violation of his duty, any interest adverse to the not cover Sections 31 and 34 which both prescribe the
corporation in respect of any matter which has been reposed in “penalties” for their violation; namely, damages, accounting
him in confidence, as to which equity imposes a disability upon and restitution of profits. On the other hand, respondent
him to deal in his own behalf, he shall be liable as a trustee for and the appellate court have taken the position that the
the corporation and must account for the profits which otherwise term “penalized” under Section 144 should be interpreted
would have accrued to the corporation. as referring to criminal penalty, such as fine or
imprisonment, and that it could not possibly contemplate
_______________ “civil” penalties such as damages, accounting or restitution.

46 Superlines Transportation Company, Inc. v. Philippine National
Construction Company, 548 Phil. 354, 362; 519 SCRA 432, 442 (2007).
211
47 Victorio-Aquino v. Pacific Plans, Inc., G.R. No. 193108, December
10, 2014, 744 SCRA 480, 499.
VOL. 814, JANUARY 11, 2017 211

210
As Section 144 speaks, among others, of the imposition
of criminal penalties, the Court is guided by the elementary
210 SUPREME COURT REPORTS ANNOTATED rules of statutory construction of penal provisions. First, in
all criminal prosecutions, the existence of criminal liability
for which the accused is made answerable must be clear
and certain. We have consistently held that “penal statutes
SECTION 34. Disloyalty of a Director.—Where a director, by are construed strictly against the State and liberally in
virtue of his office, acquires for himself a business opportunity favor of the accused. When there is doubt on the
which should belong to the corporation, thereby obtaining profits interpretation of criminal laws, all must be resolved in
to the prejudice of such corporation, he must account to the latter favor of the accused. Since penal laws should not be applied
for all such profits by refunding the same, unless his act has been mechanically, the Court must determine whether their
ratified by a vote of the stockholders owning or representing at application is consistent with the purpose and reason of the
least two-thirds (2/3) of the outstanding capital stock. This law.”48
provision shall be applicable, notwithstanding the fact that the Intimately related to the in dubio pro reo49 principle is
director risked his own funds in the venture. the rule of lenity. The rule applies when the court is faced
SECTION 144. Violations of the Code.—Violations of any of with two possible interpretations of a penal statute, one
the provisions of this Code or its amendments not otherwise that is prejudicial to the accused and another that is
specifically penalized therein shall be punished by a fine of not favorable to him. The rule calls for the adoption of an
less than one thousand (P1,000.00) pesos but not more than ten interpretation which is more lenient to the accused.50
thousand (P10,000.00) pesos or by imprisonment for not less than In American jurisprudence, there are two schools of
thirty (30) days but not more than five (5) years, or both, in the thought regarding the application of the rule of lenity.
discretion of the court. If the violation is committed by a Justice David Souter, writing for the majority in United
corporation, the same may, after notice and hearing, be dissolved States v. R.L.C.,51 refused to resort to the rule and held
in appropriate proceedings before the Securities and Exchange that lenity is reserved “for those situations in which a
Commission: Provided, That such dissolution shall not preclude reasonable doubt persists about a statute’s intended scope
the institution of appropriate action against the director, trustee even after resort to ‘the language and structure, legislative
or officer of the corporation responsible for said violation: history, and motivating policies’ of the statute.” Justice
Provided, further, That nothing in this section shall be construed Antonin Scalia, although concurring in part and concurring
to repeal the other causes for dissolution of a corporation provided in the judgment, argued that “it is not consistent with the
in this Code. rule of lenity to construe a textually ambiguous penal
statute against a criminal defen-

_______________ 53 Criminal penalties are generally understood to be limited to

imprisonment or a fine. In Article 25 of the Revised Penal Code, penalties
48 People v. Valdez, G.R. Nos. 216007-09, December 8, 2015, 776 SCRA
for lighter crimes may include suspension, destierro, public censure and a
672, 694.
bond to keep the peace.
49 This Latin legal maxim translates into “when in doubt, [rule] for
54 We are aware of the existence of other penal/penalty provisions in
the accused.”
various civil statutes. However, as the constitutionality and proper
50 Intestate Estate of Manolita Gonzales Vda. de Carungcong v. People,
interpretation of these provisions vis-à-vis criminal law prin-
626 Phil. 177, 200; 612 SCRA 272, 289 (2010).
51 503 U.S. 291, 305-308 (1992).

213
212
VOL. 814, JANUARY 11, 2017 213
212 SUPREME COURT REPORTS ANNOTATED Ient vs. Tullett Prebon (Philippines), Inc.

in Republic Act No. 8189 (The Voter’s Registration Act of
1996), which was the subject of our decision in Romualdez
dant on the basis of legislative history. . . The rule of lenity, v. Commission on Elections.55 In that case, we upheld the
in my view, prescribes the result when a criminal statute is constitutionality of Section 45(j) of Republic Act No. 8189
ambiguous: The more lenient interpretation must which made any violation of said statute a criminal offense.
prevail.”52 In other words, for Justice Scalia, textual It is respondent’s opinion that the penal clause in Section
ambiguity in a penal statute suffices for the rule of lenity to 144 should receive similar treatment and be deemed
be applied. Although foreign case law is merely persuasive applicable to any violation of the Corporation Code. The
authority and this Court is not bound by either legal Court cannot accept this proposition for there are weighty
perspective expounded in United States v. R.L.C., said case reasons to distinguish this case from Romualdez.
provides a useful framework in our own examination of the We find it apropos to quote Sections 45 and 46 of
scope and application of Section 144. Republic Act No. 8189 here:
After a meticulous consideration of the arguments
presented by both sides, the Court comes to the conclusion SECTION 45. Election Offense.—The following shall be
that there is textual ambiguity in Section 144; moreover, considered election offenses under this Act:
such ambiguity remains even after an examination of its a) to deliver, hand over, entrust or give, directly or indirectly,
legislative history and the use of other aids to statutory his voter’s identification card to another in consideration of money
construction, necessitating the application of the rule of or other benefit or promise; or take or accept such voter’s
lenity in the case at bar. identification card, directly or indirectly, by giving or causing the
Respondent urges this Court to strictly construe Section giving of money or other benefit or making or causing the making
144 as contemplating only penal penalties. However, a of a promise therefor;
perusal of Section 144 shows that it is not a purely penal b) to fail, without cause, to post or give any of the notices or to
provision. When it is a corporation that commits a violation make any of the reports required under this Act;
of the Corporation Code, it may be dissolved in appropriate c) to issue or cause the issuance of a voter’s identification
proceedings before the Securities and Exchange number to cancel or cause the cancellation thereof in violation of
Commission. The involuntary dissolution of an erring the provisions of this Act; or to refuse the issuance of registered
corporation is not imposed as a criminal sanction,53 but voters their voter’s identification card;
rather it is an administrative penalty.
The ambivalence in the language of Section 144 becomes _______________
more readily apparent in comparison to the penal
provision54 ciples have not been specifically dealt with in jurisprudence, it is neither
necessary nor practical to analyze and discuss here the variances in
_______________ wording or syntax of every penal/penalty provision in our jurisdiction. The

validity, scope and application of each penal/
52 Id., at pp. 307-308. penalty provision should be raised and decided in the proper case.
55 576 Phil. 357; 553 SCRA 370 (2008).

tion of the right of suffrage. If he is a foreigner, he shall be
214
deported after the prison term has been served. Any political
party found guilty shall be sentenced to pay a fine of not less than
214 SUPREME COURT REPORTS ANNOTATED One hundred thousand pesos (P100,000) but not more than Five
Ient vs. Tullett Prebon (Philippines), Inc. hundred thousand pesos (P500,000).

d) to accept an appointment, to assume office and to actually The crux of the Court’s ruling in Romualdez is that,
serve as a member of the Election Registration Board although from the wording of Section 450(j), there is a clear
ineligible thereto; to appoint such ineligible person knowing him legislative intent to treat as an election offense any
to be ineligible; violation of the provisions of Republic Act No. 8189. For
e) to interfere with, impede, abscond for purposes of gain or to this reason, we do not doubt that Section 46 contemplates
prevent the installation or use of computers and devices and the the term “penalty” primarily in the criminal law or
processing, storage, generation and transmission of registration punitive concept of the term.
data or information; There is no provision in the Corporation Code using
f) to gain, cause access to, use, alter, destroy, or disclose any similarly emphatic language that evinces a categorical
computer data, program, system software, network, or any legislative intent to treat as a criminal offense each and
computer related devices, facilities, hardware or equipment, every violation of that law. Consequently, there is no
whether classified or declassified; compelling reason for the Court to construe Section 144 as
g) failure to provide certified voters and deactivated voters similarly employing the term “penalized” or “penalty”
list to candidates and heads or representatives of political parties solely in terms of criminal liability.
upon written request as provided in Section 30 hereof; In People v. Temporada,56 we held that in interpreting
h) failure to include the approved application form for penal laws, “words are given their ordinary meaning and
registration of a qualified voter in the book of voters of a that any reasonable doubt about the meaning is decided in
particular precinct or the omission of the name of a duly favor of anyone subjected to a criminal statute.” Black’s
registered voter in the certified list of voters of the precinct where Law Dictionary recognizes the numerous conceptions of the
he is duly registered resulting in his failure to cast his vote during term penalty and discusses in part that it is “[a]n elastic
an election, plebiscite, referendum, initiative and/or recall. The term with many different shades of meaning; it involves
presence of the form or name in the book of voters or certified list idea of punishment, corporeal or pecuniary, or civil or
of voters in precincts other than where he is duly registered shall criminal, although its meaning is generally confined to
not be an excuse hereof; pecuniary punishment.”57 Persuasively, in Smith v. Doe,58
i) The posting of a list of voters outside or at the door of a the U.S. Supreme Court,
precinct on the day of an election, plebiscite, referendum,
initiative and/or recall and which list is different in contents from
_______________
the certified list of voters being used by the Board of Election
Inspectors; and 56 594 Phil. 680, 739; 574 SCRA 258, 307 (2008).
j) Violation of any of the provisions of this Act. 57 Black’s Law Dictionary, 6th edition, p. 1133 (1990).
SECTION 46. Penalties.—Any person found guilty of any 58 Smith v. Doe, 538 U.S. 84, 94-95 (2003), citing U.S. v. One
Election offense under this Act shall be punished with Assortment of 89 Firearms, 465 U.S. 354, 364-365, 104 S.Ct. 1099 (1984).
imprisonment of not less than one (1) year but not more than six
(6) years and shall not be subject to probation. In addition, the
guilty party shall be sentenced to suffer disqualification to hold
public office and depriva-
216

215 Ient vs. Tullett Prebon (Philippines), Inc.
VOL. 814, JANUARY 11, 2017 215

interpreting a statutory provision that covers both punitive least five (5) years, the same shall be a ground for the suspension
and nonpunitive provisions, held that: or revocation of its corporate franchise or certificate of
incorporation.
The location and labels of a statutory provision do not by This provision shall not apply if the failure to organize,
themselves transform a civil remedy into a criminal one. In 89 commence the transaction of its business or the construction of its
Firearms, the Court held a forfeiture provision to be a civil works, or to continuously operate is due to causes beyond the
sanction even though the authorizing statute was in the criminal control of the corporation as may be determined by the Securities
code. The Court rejected the argument that the placement and Exchange Commission.
demonstrated Congress’ “intention to create an additional SECTION 65. Liability of directors for watered stocks.—Any
criminal sanction,” observing that “both criminal and civil director or officer of a corporation consenting to the
sanctions may be labeled ‘penalties.’” (Emphasis supplied) issuance of stocks for a consideration less than its par or
issued value or for a consideration in any form other than

cash, valued in excess of its fair value, or who, having
Giving a broad and flexible interpretation to the term
knowledge thereof, does not forthwith express his objection in
“penalized” in Section 144 only has utility if there are
writing and file the same with the corporate secretary, shall be
provisions in the Corporation Code that specify
solidarily liable with the stockholder concerned to the
consequences other than “penal” or “criminal” for violation
corporation and its creditors for the difference between
of, or noncompliance with, the tenets of the Code.
the fair value received at the time of issuance of the stock
Petitioners point to the civil liability prescribed in Sections
and the par or issued value of the same.
31 and 34. Aside from Sections 31 and 34, we consider
SECTION 66. Interest on unpaid subscriptions.—
these provisions of interest:
Subscribers for stock shall pay to the corporation interest
SECTION 21. Corporation by Estoppel.—All persons who on all unpaid subscriptions from the date of subscription, if so
assume to act as a corporation knowing it to be without required by, and at the rate of interest fixed in, the bylaws. If no
authority to do so shall be liable as general partners for all rate of interest is fixed in the bylaws, such rate shall be deemed to
debts, liabilities and damages incurred or arising as a be the legal rate.
result thereof: Provided, however, That when any such ostensible SECTION 67. Payment of balance of subscription.—Subject
corporation is sued on any transaction entered by it as a to the provisions of the contract of subscription, the board of
corporation or on any tort committed by it as such, it shall not be directors of any stock corporation may at any time declare due
allowed to use as a defense its lack of corporate personality. and payable to the corporation unpaid subscriptions to the capital
One who assumes an obligation to an ostensible corporation as stock and may collect the same or such percentage of said unpaid
such, cannot resist performance thereof on the ground that there sub-
was in fact no corporation.
SECTION 22. Effects of nonuse of corporate charter and

continuous in operation of a corporation.—If a corporation does

not formally organize and commence the transaction of its 218
business or the construction of its works within two (2)
years from the

scriptions, in either case with interest accrued, if any, as it may
217 deem necessary.
Payment of any unpaid subscription or any percentage thereof,
together with the interest accrued, if any, shall be made on the
VOL. 814, JANUARY 11, 2017 217
date specified in the contract of subscription or on the date stated
Ient vs. Tullett Prebon (Philippines), Inc. in the call made by the board. Failure to pay on such date
shall render the entire balance due and payable and shall
date of its incorporation, its corporate powers cease and make the stockholder liable for interest at the legal rate on
the corporation shall be deemed dissolved. However, if a such balance, unless a different rate of interest is provided
corporation has commenced the transaction of its business but in the bylaws, computed from such date until full payment.
subsequently becomes continuously inoperative for a period of at If within thirty (30) days from the said date no payment is made,

all stocks covered by said subscription shall thereupon become Stock corporations must also keep a book to be known as the
delinquent and shall be subject to sale as hereinafter “stock and transfer book,” in which must be kept a record of all
provided, unless the board of directors orders otherwise. stocks in the names of the stockholders alphabetically arranged;
SECTION 74. Books to be kept; stock transfer agent.—Every the installments paid and unpaid on all stock for which
corporation shall, at its principal office, keep and carefully subscription has been made, and the date of payment of any
preserve a record of all business transactions, and minutes of all installment; a statement of every alienation, sale or transfer of
meetings of stockholders or members, or of the board of directors stock made, the date thereof, and by and to whom made; and such
or trustees, in which shall be set forth in detail the time and place other entries as the bylaws may prescribe. The stock and transfer
of holding the meeting, how authorized, the notice given, whether book shall be kept in the principal office of the corporation or in
the meeting was regular or special, if special its object, those the office of its stock transfer agent and shall be open for
present and absent, and every act done or ordered done at the inspection of any director or stockholder of the corporation at
meeting. Upon the demand of any director, trustee, stockholder or reasonable hours on business days.
member, the time when any director, trustee, stockholder or No stock transfer agent or one engaged principally in the
member entered or left the meeting must be noted in the minutes; business of registering transfer of stocks in behalf of a stock
and on a similar demand, the yeas and nays must be taken on any corporation shall be allowed to operate in the Philippines unless
motion or proposition, and a record thereof carefully made. The he secures a license from the Securities and Exchange
protest of any director, trustee, stockholder or member on any Commission and pays a fee as may be fixed by the Commission,
action or proposed action must be recorded in full on his demand. which shall be renewed annu-
The records of all business transactions of the corporation and
the minutes of any meeting shall be open to the inspection of any
director, trustee, stockholder or member of the corporation at
reasonable hours on business days and he may demand, in 220
writing, for a copy of excerpts from said records or minutes, at his
expense.


219 ally: Provided, That a stock corporation is not precluded from
performing or making transfer of its own stocks, in which case all
the rules and regulations imposed on stock transfer agents, except
VOL. 814, JANUARY 11, 2017 219
the payment of a license fee herein provided, shall be applicable.

Any officer or agent of the corporation who shall refuse Section 22 imposes the penalty of involuntary
to allow any director, trustee, stockholder or member of dissolution for nonuse of corporate charter. The rest of the
the corporation to examine and copy excerpts from its above quoted provisions, like Sections 31 and 34, provide
records or minutes, in accordance with the provisions of for civil or pecuniary liabilities for the acts covered therein
this Code, shall be liable to such director, trustee, but what is significant is the fact that, of all these
stockholder or member for damages, and in addition, shall provisions that provide for consequences other than penal,
be guilty of an offense which shall be punishable under only Section 74 expressly states that a violation thereof is
Section 144 of this Code: Provided, That if such refusal is likewise considered an offense under Section 144. If
pursuant to a resolution or order of the board of directors or respondent and the Court of Appeals are correct, that
trustees, the liability under this section for such action shall be Section 144 automatically imposes penal sanctions on
imposed upon the directors or trustees who voted for such refusal: violations of provisions for which no criminal penalty was
and Provided, further, That it shall be a defense to any action imposed, then such language in Section 74 defining a
under this section that the person demanding to examine and violation thereof as an offense would have been
copy excerpts from the corporation’s records and minutes has superfluous. There would be no need for legislators to
improperly used any information secured through any prior clarify that, aside from civil liability, violators of Section 74
examination of the records or minutes of such corporation or of are exposed to criminal liability as well. We agree with
any other corporation, or was not acting in good faith or for a petitioners that the lack of specific language imposing
legitimate purpose in making his demand. criminal liability in Sections 31 and 34 shows legislative
intent to limit the consequences of their violation to the
civil liabilities mentioned therein. Had it been the intention In Section 31 page 22, it seems that the proviso is to make the
of the drafters of the law to define Sections 31 and 34 as directors or the trustees who willfully and knowingly vote
offenses, they could have easily included similar language for or assent to patently unlawful act or guilty of gross
as that found in Section 74. negligence or bad faith in directing the affairs of the
If we were to employ the same line of reasoning as the corporation would be solidarily liable with the officers
majority in United States v. R.L.C., would the apparent concerned.
ambiguities in the text of the Corporation Code disappear
with an analysis of said statute’s legislative history as to _______________
warrant a strict interpretation of its provisions? The
answer is a negative. 59 Rollo (G.R. No. 189158), Vol. I, p. 1454. Records of Batasan (R.B.),
In his sponsorship speech of Cabinet Bill (C.B.) No. 3 November 5, 1979, p. 1214.
(the bill that was enacted into the Corporation Code), then
Minister Estelito Mendoza highlighted Sections 31 to 34 as
among
222

221 222 SUPREME COURT REPORTS ANNOTATED
VOL. 814, JANUARY 11, 2017 221
Ient vs. Tullett Prebon (Philippines), Inc. Now, would this, Your Honor, not discourage the serving
of competent people as members of the Board of Directors,
considering that they might feel that in the event things
the significant innovations made to the previous statute
would do badly against the corporation, they might be
(Act 1459 or the Corporation Law), thusly:
held liable personally for acts which should be attributed only
There is a lot of jurisprudence on the liability of directors, to the corporation?
trustees or officers for breach of trust or acts of disloyalty to the MR. MENDOZA. Your Honor will note that the directors or
corporation. Such jurisprudence is not, of course, without any trustees who are held liable must be proven to have acted
ambiguity of dissent. Sections 31, 32, 33 and 34 of the code willfully and knowingly, or if not willfully and knowingly, it must
indicate in detail prohibited acts in this area as well as be proven that they acted with gross negligence or bad faith. It
consequences of the performance of such acts or failure to perform must also be demonstrated that the acts done were patently
or discharge the responsibility to direct the affairs of the unlawful. So, the requirement for liability is somewhat serious to
corporation with utmost fidelity.59 the point of, in my opinion, being extreme. It will be noted that
this provision does not merely require assenting to patently
unlawful acts. It does not merely require being negligent. The
Alternatively stated, Sections 31 to 34 were introduced provision requires that they assent to patently unlawful acts
into the Corporation Code to define what acts are covered, willfully and with knowledge of the illegality of the act.
as well as the consequences of such acts or omissions Now, it might be true, as Your Honor suggested, that some
amounting to a failure to fulfill a director’s or corporate persons will be discouraged or disinclined to agree to serve the
officer’s fiduciary duties to the corporation. A closer look at Board of Directors because of this liability. But at the same time
the subsequent deliberations on C.B. No. 3, particularly in this provision — Section 31 — is really no more than a
relation to Sections 31 and 34, would show that the consequence of the requirement that the position of
discussions focused on the civil liabilities or consequences membership in the Board of Directors is a position of high
prescribed in said provisions themselves. We quote the responsibility and great trust. Unless a provision such as this
pertinent portions of the legislative records: is included, then that requirement of responsibility and trust will
not be as meaningful as it should be. For after all, directors may
On Section 31 take the attitude that unless they themselves commit the act,
they would not be liable. But the responsibility of a director is not
(Period of Sponsorship, December 4, 1979 Session)
merely to act properly. The responsibility of a director is to assure

that the Board of Directors, which means his colleagues acting
MR. LEGASPI. x x x.
together, does not act in a manner that is unlawful or to the

prejudice of the corporation because of personal or pecuniary 61 Id., at pp. 1563-1564; R.B., March 11, 1980, pp. 2349-2350.
interest of the directors.60 (Emphases supplied)

_______________
224
60 Id., at p. 1480; R.B., December 4, 1979, p. 1614.

223
“Disloyalty of a Director — Where a director by virtue of his
office acquires for himself a business opportunity which should
VOL. 814, JANUARY 11, 2017 223
belong to the corporation thereby obtaining profits to the
Ient vs. Tullett Prebon (Philippines), Inc. prejudice of the corporation, he must account to the latter for all
such profits, unless his act has been ratified by a vote of the
(Period of Amendments, March 11, 1980 Session) stockholders owning or representing at least two-thirds (2/3) of
the outstanding capital stock. This provision shall be applicable
MR. MILLORA. On line 16, Section 31, referring to the phrase notwithstanding the fact that the director risked his own funds in
“patently unlawful acts.” Before I introduce my proposed the venture.”
amendment to delete the word “patently’’ is there a reason for My question, Your Honor, is: is this not the so-called
placing this adjective before the word “unlawful,” Your Honor? corporate opportunity doctrine found in the American
MR. ABELLO. Probably the one who prepared this original jurisprudence?
draft of Cabinet Bill No. 3 wanted to make sure that a director or MR. MENDOZA. Yes, Mr. Speaker, as I stated many of the
trustee is not [made] liable for an act that is not clearly unlawful, changes that have been incorporated in the Code were drawn
so he used a better word than “clearly,” he used the word from jurisprudence on the matter, but even jurisprudence on
“patently.” several matters or several issues relating to the Corporation Code
MR. MILLORA. So, in that case, Your Honor, a director may are sometimes ambiguous, sometimes controversial. In order,
not be liable for certain unlawful acts. Is that right, Your therefore, to clarify those issues, what was done was to spell
Honor? out in statutory language the rule that should be applied
MR. ABELLO. Yes, if it is not patently unlawful. Precisely, on those matters and one of such examples is Section 34.
the use of the word “patently” is also to give some kind of MR. NUÑEZ. Does not His Honor believe that to codify this
protection to the directors or trustees. Because if you will particular document into law may lead to absurdity or confusion
hold the directors or trustees responsible for everything, as the cited doctrine is subject to many qualifications depending
then no one will serve as director or trustee of any on the peculiar nature of the case?
corporation. But, he is made liable so long as he willfully and Let us suppose that there is a business opportunity that the
knowingly votes for or assent to patently unlawful acts of the corporation did not take advantage of or was not interested in.
corporation. So it is also to protect the director [or] trustees from Would you hold the director responsible for acquiring the interest
liability for acts that was not patently unlawful. despite the fact that the corporation did not take advantage of or
MR. MILLORA. With that explanation, Your Honor, I will not was not interested in that particular business venture? Does not
proceed with my proposed amendment.61 His Honor believe that this should be subject to qualifications and
should be dealt with on a case-to-case basis depending on the
On Section 34 circumstances of the case?
MR. MENDOZA. If a director is prudent or wise enough, then
(Period of Sponsorship, November 5, 1979 Session) he can protect himself in such contingency.

MR. NUÑEZ. x x x

May I go now to page 24, Section 34.
225
_______________
VOL. 814, JANUARY 11, 2017 225

Ient vs. Tullett Prebon (Philippines), Inc. MR. MENDOZA. First of all, to say that a corporation has
knowledge is itself a point that can be subject of an argument.
If he is aware of a business opportunity, he can make it When does a corporation have knowledge — when its president
known to the corporation, propose it to the corporation, comes to know of the fact, when its general manager knows of the
and allow the corporation to reject it, after which he, fact, when one or two of the directors know of that fact, when a
certainly, may avail of it without risk of the consequences majority of the directors come to know of that fact? So that in
provided for in Section 34. itself is a matter of great ambiguity, when one says it has
MR. NUÑEZ. I see. So that the position of Your Honor is that knowledge.
the matter should be communicated to the corporation, the matter That is why when I said that a prudent director, who
of the director acquiring the business opportunity should be would assure that he does not become liable under Section
communicated to the corporation and that if it is not 34, should not only be sure that the corporation has official
communicated to the corporation, the director will be responsible. knowledge, that is, the Board of Directors, but must take steps,
Is that the position of His Honor? positive steps, which will demonstrate that the matter or
MR. MENDOZA. In my opinion it must not only be made opportunity was brought before the corporation for its decision
known to the corporation; the corporation must be formally whether to avail of it or not, and the corporation rejected it.
advised and if he really would like to be assured that he is So, under those circumstances narrated by Your Honor, it is
protected against the consequences provided for in my view that the director will be liable, unless his acts are ratified
Section 34, he should take such steps whereby the opportunity is later by the vote of stockholders holding at least 2/3 of the
clearly presented to the corporation and the corporation has the outstanding capital stock.
opportunity to decide on whether to avail of it or not and then let MR. NUÑEZ. Your Honor has already raised the possible
the corporation reject it, after which then he may avail of it. complications that may arise out of this particular provision. My
Under such circumstances I do not believe he would expose question is: how can we remedy the situation? Is there a
himself to the consequences provided for under Section 34. necessity, Your Honor, of a formal notice to the corporation that it
Precisely, the reason we have laid down this ruling in statutory should be placed in the agenda, in a meeting or a special or
language is that for as long as the rule is not clarified there will regular meeting of the corporation that such a business venture
be ambiguity in the matter. And directors of corporations who exists, that the corporation should take advantage of this business
may acquire knowledge of such opportunities would always be venture before a director can be held not responsible for acquiring
risking consequences not knowing how the courts will later on this business venture?
decide such issues. But now with the statutory rule, any

director who comes to know of an opportunity that may be

available to the corporation would be aware of the
consequences in case he avails of that opportunity without 227
giving the corporation the privilege of deciding beforehand on
whether to take advantage of it or not.
MR. NUÑEZ. Let us take the case of a corporation where, from VOL. 814, JANUARY 11, 2017 227
all indications, the corporation was aware of Ient vs. Tullett Prebon (Philippines), Inc.

MR. MENDOZA. Well, I believe, as I have stated, Mr. Speaker,

that is what a prudent director should do. If he does not wish to
226 be in any way handicapped in availing of business opportunities,
he should, to the same degree, be circumspect in accepting
directorships in corporations. If he wants to be completely free to
226 SUPREME COURT REPORTS ANNOTATED avail of any opportunity which may come his way, he should not
Ient vs. Tullett Prebon (Philippines), Inc. accept the position of director in any corporation which he may
anticipate may be dealing in a business in connection with which
this business opportunity and despite this fact, Your Honor, and he may acquire a certain interest.
the failure of the director to communicate the venture to the The purpose of all these provisions is to assure that
corporation, the director entered into the business venture. Is the directors or corporations constantly — not only constantly
director liable, Your Honor, despite the fact that the corporation remember but actually are imposed with certain positive
has knowledge, Your Honor, from all indications, from all facts, obligations that at least would assure that they will
from all circumstances of the case, the corporation is aware? discharge their responsibilities with utmost fidelity.62

(December 5, 1979 Session) Supposing under the same section, Your Honor, the director
MR. CAMARA. Thank you, Your Honor. May we go to page 24, took the opportunity after resigning as director or officer? It is
lines 1 to 20, Section 34 — Disloyalty of a director. suggested, Your Honor, that this should be clarified because the
Your Honor, it is provided that a director, who by virtue of his resigning director can take the opportunity of this transaction
office acquires for himself a business opportunity which should before he resigns.
belong to the corporation thereby obtaining profits to the MR. ABELLO. If Your Honor refers to the fact that he took
prejudice of such corporation, must account to the corporation for that opportunity while he was a director, Section 34, would apply.
all such profits unless his act has been ratified by a vote of the But if the action was made after his resignation as a director of
stockholders owning or representing at least two-thirds (2/3) of the corporation, then Section 34 would not apply.63
the outstanding capital stock.
However, Your Honor, the right to ratification would serve to _______________
defeat the intention of this provision. This is possible if the
director or officer is the controlling stockholder. 63 Id., at p. 1498; R.B., December 5, 1979, p. 1633.
It is, therefore, suggested, Your Honor, that the twenty percent
(20%) stockholding limit be applied here in which case, over
twenty percent limit, said director or
229
_______________
62 Id., at pp. 1457-1459; R.B., November 5, 1979, pp. 1217-1219. VOL. 814, JANUARY 11, 2017 229

(Period of Amendments, March 11, 1980 Session)
228 MR. CAMARA. This is on Section 34, page 24, line 15, I
propose to insert between the word “profits” and the comma (,) the
words BY REFUNDING THE SAME. So that the first sentence,
lines 11 to 18 of said section, as modified, shall read as follows:
Ient vs. Tullett Prebon (Philippines), Inc. “SEC. 34. Disloyalty of a director.—Where a director by
virtue of his office acquires for himself a business
officer is disallowed to participate in the ratification. And this is opportunity which should belong to the corporation thereby
precisely the point I was driving at in the previous section, Your obtaining profits to the prejudice of such corporation, he
Honor. must account to the latter for all such profits BY
MR. ABELLO. Your Honor, I see the point that Your Honor REFUNDING THE SAME, unless his act has been ratified
has raised and that will be considered by the committee at an by a vote of the stockholders owning or representing at least
appropriate time. two-thirds (2/3) of the outstanding capital stock.”
MR. CAMARA. Thank you, Your Honor. The purpose of this amendment, Mr. Speaker, is to
Further, under the same provision, it is not clear as to clarify as to what to account to the corporation.
what “account to the corporation” means or what it MR. ABELLO. Mr. Speaker, the committee accepts the
includes. Is the offender liable for the profits in favor of amendment.64 (Emphases and underscoring supplied)
the corporation?
MR. ABELLO. Yes, that is what it means.
MR. CAMARA. Or he be merely made to account? Verily, in the instances that Sections 31 and 34 were
MR. ABELLO. Well, Your Honor, when the law says “He taken up on the floor, legislators did not veer away from
must account to the latter for all such profits,” that means the civil consequences as stated within the four corners of
that he is liable to the corporation for such profits. these provisions. Contrasted with the interpellations on
MR. CAMARA. Who gets the profits then, Your Honor? Section 74 (regarding the right to inspect the corporate
MR. ABELLO. The corporation itself. records), the discussions on said provision leave no doubt
MR. CAMARA. The corporation? that legislators intended both civil and penal liabilities to
MR. ABELLO. Correct. attach to corporate officers who violate the same, as was
MR. CAMARA. Thank you, Your Honor. repeatedly stressed in the excerpts from the legislative
record quoted below:

_______________ VOL. 814, JANUARY 11, 2017 231
64 Id., at p. 1565; R.B., March 11, 1980, p. 2351. Ient vs. Tullett Prebon (Philippines), Inc.
As I said, Your Honor, I think it is fair enough to assume that

persons do not act deliberately in bad faith, that they do not act
230
deliberately to expose themselves to damages, or to penal
sanctions. In the ultimate, I would agree that certain decisions
may be unnecessarily harsh and prejudicial. But by and large, I
230 SUPREME COURT REPORTS ANNOTATED think, the probabilities are in favor of a decision being reasonable
Ient vs. Tullett Prebon (Philippines), Inc. and in accord with the interest of the corporation.67 (Emphases
and underscoring supplied)
On Section 74:
(Period of Sponsorship, December 10, 1979 Session) Quite apart that no legislative intent to criminalize
MR. TUPAZ. x x x I guess, Mr. Speaker, that the distinguished Sections 31 and 34 was manifested in the deliberations on
sponsor has in mind a particular situation where a minority the Corporation Code, it is noteworthy from the same
shareholder is one of the thousands of shareholders. But I present deliberations that legislators intended to codify the
a situation, Your Honor, where the minority is 49% owner of a common law concepts of corporate opportunity and
corporation and here comes this minority shareholder wanting, fiduciary obligations of corporate officers as found in
but a substantial minority, and yet he cannot even have access to American jurisprudence into said provisions. In common
the records of this corporation over which he owns almost one-half law, the remedies available in the event of a breach of
because, precisely, of this particular provision of law.65 director’s fiduciary duties to the corporation are civil
MR. MENDOZA. He will not have access if the grounds remedies. If a director or officer is found to have breached
expressed in the proviso are present. It must also be noted, Mr. his duty of loyalty, an injunction may be issued or damages
Speaker, that the provision before us would, let us say, make it may be awarded.68 A corporate officer guilty of fraud or
very difficult for corporate officers to act unreasonably because mismanagement may be held liable for lost profits.69 A
they are not only subject to a suit which would compel disloyal agent may also suffer forfeiture of his
them to allow the access to corporate records, they are compensation.70 There is nothing in the deliberations to
also liable for damages and are in fact guilty of a penal act indicate that drafters of the Corporation Code intended to
under Section 143.66 deviate from common law practice and enforce the fiduciary
MR. TUPAZ. That is correct, Your Honor. obligations of directors and corporate officers through penal
MR. MENDOZA. So that when corporate officers deny access to sanction aside from civil liability. On the contrary, there
a shareholder, they do so under very serious consequences. If they appears to be a concern among the drafters of the
should err in making that decision and it is demonstrated that Corporation Code that even the imposition of the civil
they have erred deliberately, they expose themselves to sanctions under Sections 31 and 34 might discourage
damages and even to certain penal sanctions. competent persons from serving as directors in
x x x x corporations.
_______________ _______________
65 Mr. Tupaz’s interpellation centered on the proviso in Section 74 67 Rollo (G.R. No. 189158), Vol. I, pp. 1515-1516; R.B., December 10,
that it is a defense under said section that the person demanding to see 1979, pp. 1695-1696.
the corporation’s records has improperly used any information secured 68 See Fletcher Cyclopedia of the Law of Corporations, 3 Fletcher Cyc.
through any prior examination or was not acting in good faith or for a Corp. § 837.60, September 2016 update.
legitimate purpose. 69 See 3A Fletcher Cyc. Corp. § 1343.
66 This was renumbered as Section 144 when the Corporation Code
70 See 5A Fletcher Cyc. Corp. § 2185.
was enacted.

232
231

232 SUPREME COURT REPORTS ANNOTATED or free trade. For not only is the right of individuals to organize
collectively recognized; the collective organization is vested with a
juridical personality distinct from their own. Thus “the skill,
dexterity, and judgment” of a nation’s labor force need not be
In Crandon v. United States,71 the U.S. Supreme Court constricted in their application to those of an individual or that
had the occasion to state that: which he alone may assemble but to those of a collective
In determining the meaning of the statute, we look not only organization.
to the particular statutory language, but to the design of While a code, such as the proposed code now before us, may
the statute as a whole and to its object and policy. appear essentially regulatory in nature, it does not, and is
Moreover, because the governing standard is set forth in a not intended, to curb or stifle the use of the corporate
criminal statute, it is appropriate to apply the rule of lenity in entity as a business organization. Rather, the proposed code
resolving any ambiguity in the ambit of the statute’s coverage. To recognizes the value, and seeks to inspire confidence in the value
the extent that the language or history of [the statute] is of the corporate vehicle in the economic life of society.72
uncertain, this “time-honored interpretive guideline” serves to (Emphases supplied)
ensure both that there is fair warning of the boundaries of

criminal conduct and that legislatures, not courts, define
The Corporation Code was intended as a regulatory
criminal liability. (Citations omitted; emphases supplied)
measure, not primarily as a penal statute. Sections 31 to 34
in particular were intended to impose exacting standards of
Under the circumstances of this case, we are convinced fidelity on corporate officers and directors but without
to adopt a similar view. For this reason, we take into unduly impeding them in the discharge of their work with
account the avowed legislative policy in the enactment of concerns of litigation. Considering the object and policy of
the Corporation Code as outlined in the Sponsorship the Corporation Code to encourage the use of the corporate
Speech of Minister Mendoza: entity as a vehicle for economic growth, we cannot espouse
a strict construction of Sections 31 and 34 as penal offenses
Cabinet Bill No. 3 is entitled “The Corporation Code of the in relation to Section 144 in the absence of unambiguous
Philippines.” Its consideration at this time in the history of our statutory language and legislative intent to that effect.
nation provides a fitting occasion to remind that under our When Congress intends to criminalize certain acts it
Constitution the economic system known as “free does so in plain, categorical language, otherwise such a
enterprise” is recognized and protected. We acknowledge as statute would be susceptible to constitutional attack. As
a democratic republic that the individual must be free and that as earlier discussed, this can be readily seen from the text of
a free man — “free to choose his work and to retain the fruits of Section 45(j) of Republic Act No. 8189 and Section 74 of the
his labor” — he may best develop his capabilities and will Corporation Code.
produce and supply the economic needs of the nation. We stress that had the Legislature intended to attach
x x x x penal sanctions to Sections 31 and 34 of the Corporation
The formation and organization of private corporations, Code it could have expressly stated such intent in the same
and I underscore private corporations as distinguished from manner that it did for Section 74 of the same Code.
corporations owned or controlled by the government or any
subdivision or instrumentality thereof, gives wider dimensions _______________
to free enterprise
72 Rollo (G.R. No. 189158) Vol. I, p. 1452; R.B., November 5, 1979, p.
1212.
_______________
71 494 U.S. 152, 110 S.Ct. 997, 1001-1002 (1990).

234

233
VOL. 814, JANUARY 11, 2017 233
At this point, we dispose of some related arguments sanction for violation of Section 133 of the Corporation
raised in the pleadings. Code was not essential to the resolution of the case as none
We do not agree with respondent Tullett that previous of the parties was being made criminally liable under
decisions of this Court have already settled the matter in Section 133.
controversy in the consolidated cases at bar. The As for respondent’s allusion to Genuino v. National
declaration of the Court in Home Insurance Company v. Labor Relations Commission,75 we find the same
Eastern Shipping Lines73 that “[t]he prohibition against unavailing. Genuino involved the appeal of an illegal
doing business without first securing a license [under dismissal case wherein it was merely mentioned in the
Section 133] is now given penal sanction which is also narration of facts that the employer-bank also filed
applicable to other violations of the Corporation Code criminal complaints against its dismissed corporate officers
under the general provisions of Section 144 of the Code” is for alleged violation of Section 31 in relation to Section 144
unmistakably obiter dictum. We explained in another case: of the Corporation Code. The interpretation of said
provisions of the Corporation Code in the context of a
An obiter dictum has been defined as an opinion expressed by a criminal proceeding was not at issue in that case.
court upon some question of law that is not necessary in the As additional support for its contentions, respondent
determination of the case before the court. It is a remark made, or cites several opinions of the SEC, applying Section 144 to
opinion expressed, by a judge, in his decision upon a cause by the various violations of the Corporation Code in the
way, that is, incidentally or collaterally, and not directly upon the imposition of graduated fines. In respondent’s view, these
question before him, or upon a point not necessarily involved in opinions show a consistent administrative interpretation
the determination of the cause, or introduced by way of on the applicability of Section 144 to the other provisions of
illustration, or analogy or argument. It does not embody the the Corporation Code and allegedly render absurd
resolution or determination of the court, and is made petitioners’ concern regarding the “over criminalization” of
without argument, or full consideration of the point. It the Corporation Code. We find respondent’s reliance on
lacks the force of an adjudication, being a mere expression these SEC opinions to be misplaced. As petitioners
of an opinion with no binding force for purposes of res correctly point out, the fines imposed by the SEC in these
judicata.74 (Emphasis supplied) instances of violations of the Corporation Code are in the
nature of administrative fines and are not penal in nature.

Without ruling upon the soundness of the legal reasoning
The issue in the Home Insurance Company case was
of the SEC in these opinions, we note that these opinions in
whether or not a foreign corporation previously doing
fact support the view that even the SEC construes
business here without a license has the capacity to sue in
“penalty” as used in Section 144 as encompassing
our courts when it had already acquired the necessary
administrative penalties, not only criminal sanctions. In
license at the time of the filing of the complaints. The Court
all, these SEC issuances weaken rather than strengthen
ruled in the affirmative. The statement regarding the
respondent’s case.
supposed penal
With respect to the minutiae of other arguments cited in
the parties’ pleadings, it is no longer necessary for the
_______________
Court to pass upon the same in light of our determination
73 Home Insurance Company v. Eastern Shipping Lines, supra note that there is no clear, categorical legislative intent to define
24.
Sections 31
74 Ocean East Agency Corporation v. Lopez, G.R. No. 194410, October
14, 2015, 772 SCRA 414, 428-429. _______________
75 564 Phil. 315; 539 SCRA 342 (2007).

235
236
VOL. 814, JANUARY 11, 2017 235
Ient vs. Tullett Prebon (Philippines), Inc. 236 SUPREME COURT REPORTS ANNOTATED

8/17/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 814
and 34 as offenses under Section 144 of the Corporation

Code. We likewise refrain from resolving the question on
the constitutionality of Section 144 of the Corporation
Code. It is a long standing principle in jurisprudence that
“courts will not resolve the constitutionality of a law, if the
controversy can be settled on other grounds. The policy of
the courts is to avoid ruling on constitutional questions and
to presume that the acts of the political departments are
valid, absent a clear and unmistakable showing to the
contrary.”76
WHEREFORE, the consolidated petitions are
GRANTED. The Decision dated August 12, 2009 of the
Court of Appeals in C.A.-G.R. S.P No. 109094 and the
Resolutions dated April 23, 2009 and May 15, 2009 of the
Secretary of Justice in I.S. No. 08-J-8651 are REVERSED
and SET ASIDE.
SO ORDERED.
Sereno (CJ., Chairperson), Del Castillo, Jardeleza**

and Caguioa, JJ., concur.
Petitions granted, judgment reversed and set aside.
Notes.—A petition for certiorari shall be verified and

accompanied by a sworn certification of non-forum
shopping. (Colmenares vs. Heirs of Rosario Vda. de
Gonzales, 573 SCRA 402 [2008])
Although the submission of a certificate against forum
shopping is deemed obligatory, it is not jurisdictional. (Cua,
Jr. vs. Tan, 607 SCRA 645 [2009])

——o0o——
_______________
76 Mirasol v. Court of Appeals, 403 Phil. 760, 774; 351 SCRA 44, 54
(2001).
** Designated acting member per Raffle dated December 7, 2016.
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8/17/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 814 8/17/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 814

susceptible to constitutional attack. As earlier discussed, this can 189

VOL. 814, JANUARY 11, 2017 189

PETITIONS for review on certiorari of a decision of the _______________

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190 SUPREME COURT REPORTS ANNOTATED

with Villalon and Chuidian in the latter’s acts of disloyalty

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cannot be made applicable to the provisions of the In a Consolidated Reply-Affidavit23 notarized on

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complainant but admittedly, the entire broking staff of the latter.

Delos Trinos with the Metropolitan Trial Court of Makati

hearing, be dissolved in appropriate proceedings before the

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34 Id., at pp. 81-83.

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_______________ 53 Criminal penalties are generally understood to be limited to

Ient vs. Tullett Prebon (Philippines), Inc.

_______________ wording or syntax of every penal/penalty provision in our jurisdiction. The

Ient vs. Tullett Prebon (Philippines), Inc.

VOL. 814, JANUARY 11, 2017 215

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224 SUPREME COURT REPORTS ANNOTATED

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_______________ VOL. 814, JANUARY 11, 2017 231

As I said, Your Honor, I think it is fair enough to assume that

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71 494 U.S. 152, 110 S.Ct. 997, 1001-1002 (1990).

75 564 Phil. 315; 539 SCRA 342 (2007).

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and 34 as offenses under Section 144 of the Corporation

Sereno (CJ., Chairperson), Del Castillo, Jardeleza**

Petitions granted, judgment reversed and set aside.

Notes.—A petition for certiorari shall be verified and

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