FACTS:
Korean Airlines (KAL) is a
corporation established and registered in the Republic of South Korea and
licensed to do business in the Philippines. Its general manager in the
Philippines is Suk Kyoo Kim, while its appointed counsel was Atty. Mario
Aguinaldo and his law firm.
On September 6, 1999, KAL,
through Atty. Aguinaldo, filed a Complaint against ETI with the Regional Trial
Court (RTC) of Manila, for the collection of the principal amount of P260,150.00,
plus attorney’s fees and exemplary damages. The verification and certification
against forum shopping was signed by Atty. Aguinaldo, who indicated therein
that he was the resident agent and legal counsel of KAL and had caused the
preparation of the complaint.
ETI filed a motion to
dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to
execute the verification and certificate of non-forum shopping as required by
Section 5, Rule 7 of the Rules of Court. KAL opposed the motion, contending
that Atty. Aguinaldo was its resident agent and was registered as such with the
Securities and Exchange Commission (SEC) as required by the Corporation Code of
the Philippines. It was further alleged that Atty. Aguinaldo was also the
corporate secretary of KAL. Appended to the said opposition was the
identification card of Atty. Aguinaldo, showing that he was the lawyer of KAL.
During the hearing of
January 28, 2000, Atty. Aguinaldo claimed that he had been authorized to file
the complaint through a resolution of the KAL Board of Directors approved
during a special meeting held on June 25, 1999. Upon his motion, KAL was given
a period of 10 days within which to submit a copy of the said resolution. The
trial court granted the motion. Atty. Aguinaldo subsequently filed other
similar motions, which the trial court granted.
Finally, KAL submitted on
March 6, 2000 an Affidavit of even date, executed by its general
manager Suk Kyoo Kim, alleging that the board of directors conducted a special
teleconference on June 25, 1999, which he and Atty. Aguinaldo attended. It was
also averred that in that same teleconference, the board of directors approved
a resolution authorizing Atty. Aguinaldo to execute the certificate of
non-forum shopping and to file the complaint. Suk Kyoo Kim also alleged,
however, that the corporation had no written copy of the aforesaid resolution.
ISSUE:
Whether or not the alleged teleconferencing
should be given judicial notice so that the authority of Atty. Aguinaldo, to
sign the verification and certificate of non-forum shopping, claimed to be
given in the said meeting via teleconferencing is valid?
DECISION:
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.
A teleconference represents
a unique alternative to face-to-face (FTF) meetings. It was first introduced in
the 1960’s with American Telephone and Telegraph’s Picturephone. At that time,
however, no demand existed for the new technology. Travel costs were reasonable
and consumers were unwilling to pay the monthly service charge for using the picturephone,
which was regarded as more of a novelty than as an actual means for everyday
communication.
Indeed, teleconferencing can
only facilitate the linking of people; it does not alter the complexity of
group communication. Although it may be easier to communicate via teleconferencing,
it may also be easier to miscommunicate. Teleconferencing cannot satisfy the
individual needs of every type of meeting.
In the Philippines,
teleconferencing and videoconferencing of members of board of directors of
private corporations is a reality, in light of Republic Act No. 8792. The
Securities and Exchange Commission issued SEC Memorandum Circular No. 15, on
November 30, 2001, providing the guidelines to be complied with related to such
conferences. Thus,
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 respondent’s allegation
that its board of directors conducted a teleconference on June 25, 1999 and
approved the said resolution (with Atty. Aguinaldo in attendance) is
incredible, given the additional fact that no such allegation was made in the
complaint. If the resolution had indeed been approved on June 25, 1999, long
before the complaint was filed, the respondent should have incorporated it in
its complaint, or at least appended a copy thereof. The respondent failed to do
so. It was only on January 28, 2000 that the respondent claimed, for the first
time, that there was such a meeting of the Board of Directors held on June 25,
1999; it even represented to the Court that a copy of its resolution was with
its main office in Korea, only to allege later that no written copy existed. It
was only on March 6, 2000 that the respondent alleged, for the first time, that
the meeting of the Board of Directors where the resolution was approved was
held via teleconference.
Worse still, it appears that as
early as January 10, 1999, Atty. Aguinaldo had signed a
Secretary’s/Resident Agent’s Certificate alleging that the board of directors held
a teleconference on June 25, 1999. No such certificate was appended to the
complaint, which was filed on September 6, 1999. More importantly, the
respondent did not explain why the said certificate was signed by Atty.
Aguinaldo as early as January 9, 1999, and yet was notarized one year later (on
January 10, 2000); it also did not explain its failure to append the said
certificate to the complaint, as well as to its Compliance dated March 6, 2000.
It was only on January 26, 2001 when the respondent filed its comment in the CA
that it submitted the Secretary’s/Resident Agent’s Certificate dated
January 10, 2000.
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