Expertravel & Tours Inc. vs. Court of Appeals, etc. G.R. No. 152392, 26 May 2005

Facts:

Korean Airlines (KAL) is a corporation established and registered in the Republic of South Korea and has been granted license to do business in the Philippines. On 6 September 1999, KAL, through its legal counsel, Atty. Mario Aguinaldo filed a complaint against ETI with the Regional Trial Court (RTC) of Manila, for the collection of sum of money totaling PhP260,150.00 plus attorney's fees and exemplary damages. The complaint was attached with verification and certificate of non-forum shopping wherein indicated that Atty. Aguinaldo is the agent and legal counsel of KAL and had caused the preparation of the said complaint.

ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to execute the above-mentioned verification and non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. KAL, thereafter, opposed the motion contending that Atty. Aguinaldo was its resident agent and was registered as such with the Securities and Exchange Commission (SEC). It was also alleged that Atty. Aguinaldo also served as the company's corporate secretary. 

During the hearing, Atty Aguinaldo claimed that he had been authorized to file the complaint through the resolution approved by the KAL Board of Directors during a special meeting held on June 25, 1999. Thereafter. KAL submitted an Affidavit executed by its General Manager Suk Kyoo Kim, alleging that the board of directors conducted a special teleconference which he and Atty. Aguinaldo attended. It was also averred that in that Teleconference, the board of directors approved a resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping and to file the said complaint. Furthermore, Su Kyoo Kim alleged that the corporation  had no written copy of the aforesaid resolution. 

Trial Court issued an order denying the motion to dismiss, giving credence to the claims of Atty. Aguinaldo and Su Kyoo Kim. ETI filed a motion for reconsideration of the said order alleging that it is inappropriate for the court to take judicial notice of the said teleconference without any prior hearing. 

CA rendered judgment dismissing the petition and ruling that the verification and certificate of non-forum shopping executed by Atty. Aguinaldo was sufficient compliance with the Rules of Court. 

Hence, this petition.

Issue:

Is the petitioner correct in assailing that until and after teleconferencing is recognized as a legitimate means of conducting meetings, gathering quorum of board of directors, such cannot be taken judicial notice of by the court.

Held:

The petition is meritorious.

It is settled that the requirement to file a certificate of non-forum shopping is mandatory and that the failure to comply with this requirement cannot be excused.  The certification is a peculiar and personal responsibility of the party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action.  Hence, the certification must be accomplished by the party himself because he has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or tribunals.  Even his counsel may be unaware of such facts. Hence, the requisite certification executed by the plaintiff’s counsel will not suffice.

In a case where the plaintiff is a private corporation, the certification may be signed, for and on behalf of the said corporation, by a specifically authorized person, including its retained counsel, who has personal knowledge of the facts required to be established by the documents.

Generally speaking, matters of judicial notice have three material requisites:

(1) the matter must be one of common and general knowledge;

(2) it must be well and authoritatively settled and not doubtful or uncertain; and

(3) it must be known to be within the limits of the jurisdiction of the court.

The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either:

(1) generally known within the territorial jurisdiction of the trial court; or

(2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.

In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing.  Teleconferencing is interactive group communication (three or more people in two or more locations) through an electronic medium.  In general terms, teleconferencing can bring people together under one roof even though they are separated by hundreds of miles.

This type of group communication may be used in a number of ways, and have three basic types:

(1) video conferencing - television-like communication augmented with sound;

(2) computer conferencing - printed communication through keyboard terminals, and

(3) audio-conferencing-verbal communication via the telephone with optional capacity for telewriting or telecopying.

The Court agrees with the RTC that persons in the Philippines may have a teleconference with a group of persons in South Korea relating to business transactions or corporate governance.

Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in a teleconference along with the respondent’s Board of Directors, the Court is not convinced that one was conducted; even if there had been one, the Court is not inclined to believe that a board resolution was duly passed specifically authorizing Atty. Aguinaldo to file the complaint and execute the required certification against forum shopping.

The Court is, thus, more inclined to believe that the alleged teleconference on June 25, 1999 never took place, and that the resolution allegedly approved by the respondent’s Board of Directors during the said teleconference was a mere concoction purposefully foisted on the RTC, the CA and this Court, to avert the dismissal of its complaint against the petitioner.

Petition granted.

________________________

Full text of the case available at: http://sc.judiciary.gov.ph/jurisprudence/2005/may2005/152392.htm