RAMON DE LA RAMA, FRANCISCO ROD­RIGUEZ, HORTENCIA SALAS, PAZ SALAS AND PATRIA SALAS, HEIR OF MAGDALENA SALAS, AS STOCKHOLDERS ON THEIR OWN BEHALF AND FOR THE BENEFIT OF THE MA-A…

This was a representative or derivative suit com­menced on October 20, 1953, in
the Court of First In­stance of Manila by four minority stockholders against
the Ma-ao Sugar
Central Co., Inc. and J. Amado Araneta and
three other directors of the corporation.

The complaint comprising the period November, 1946 to October, 1952, stated five causes of action, to
wit:  (1) for alleged illegal and ultra-vires acts consisting of self-dealing,
irregular loans, and unauthorized investments; 
(2) for alleged gross misma­nagement;  (3) for alleged forfeiture of
corporate rights warranting dissolution; 
(4) for alleged damages
and attorney’s fees; and (5) for receivership.

Plaintiffs prayed, in substance, as follows:

Under the FIRST CAUSE OF ACTION, that the defend­ant J. Amado
Araneta and his individual co-defendants be ordered to render an accounting of
all transactions made and carried out by them for defendant corporation, and
“to collect, produce and/or pay to the defendant corporation the
outstanding balance of the amounts so diverted and still unpaid to defendant
corporation”;

Under the SECOND CAUSE OF ACTION, that the indivi­dual defendants
be held liable and be ordered to pay to the defendant corporation
“whatever amounts may be re­covered by the plaintiffs in Civil Case No.
20122, en­titled Francisco Rodriguez vs. Ma-ao Sugar Central Co.”; to
return to the defendant corporation all amounts withdrawn by way of
discretionary funds or backpay, and to account for the difference between the
corporation’s crop loan accounts payable and its crop loan accounts receivable;

Under the THIRD CAUSE OF
ACTION, that the corpora­tion be dissolved and its net assets be distributed to
the stockholders; and

Under the FOURTH CAUSE OF ACTION, that the defend­ants be ordered
“to pay the sum of P300,000.00 by way of compensatory, moral and exemplary
damages and for expenses of litigation, including attorney’s fees and costs of
the suit.”

The FIFTH CAUSE OF ACTION was an application for the provisional
remedy of receivership.

In their answer originally filed on December 1, 1953, and amended
on February 1, 1955, defendants denied “the allegations regarding the
supposed gross mismanagement, fraudulent use and diversion of corpo­rate funds,
disregard of corporate requirements, abuse of trust and violation of fiduciary
relationship, etc., supposed to have been discovered by plaintiffs, all of
which are nothing but gratuitous, unwarranted, exagge­rated and distorted
conclusions not supported by plain and specific facts and transactions alleged
in the com­plaint.”

BY WAY OF SPECIAL DEFENSES, the defendants alleged, among other
things, (1) that the complaint “is prema­ture, improper and
unjustified”; (2) that plaintiffs did not make an “earnest, not simulated effort”
to exhaust first their remedies within
the corporation be­fore filing their complaint; (3) that no actual loss had
been suffered by the defendant corporation on ac­count of the transactions
questioned by plaintiffs; (4) that the payments by the debtors of all
amounts due to the defendant corporation constituted a full, sufficient and
adequate remedy for the grievances al­leged in the complaint; and (5) that the
dissolution and/or receivership
of the defendant corporation would violate and impair the obligation of
existing contracts of said corporation.

BY WAY OF COUNTERCLAIM, the defendants in substance further
alleged, among others, that the complaint was premature, improper and
malicious, and that the language used was “unnecessarily vituperative,
abusive and insult­ing, particularly against defendant J. Amado Araneta who
appears to be the main target of their hatred”.  Where­fore, the defendant sought to recover
“compensation for damages, actual, moral, exemplary and corrective, includ­ing
reasonable attorney’s fees.”

After trial, the Lower Court
rendered its Decision (later supplemented by an Order resolving defendants’
Motion for Reconsideration), the dispositive portion of which reads:

“IN VIEW WHEREOF, the Court dismisses the petition for
dissolution but condemns J. Amado Araneta to pay unto Ma-ao Sugar Central Co.,
Inc. the amount of P46,270.00 with 8% interest from the date of the filing of
this complaint, plus the costs; the Court reiterates the preliminary injunction
restraining the Ma-ao Sugar Central Co., Inc. management to give any loans or
advances to its officers and orders that this injunction be as it is hereby
made, permanent; and orders it to refrain from making investments in Acoje
Mining, Mabuhay Printing, and any other company whose purpose is not
connected with the Sugar central business; costs of plaintiffs to be borne by
the Cor­poration and J. Amado Araneta.”

From this judgment both parties appealed directly to the Supreme
Court.

Before taking up the errors respectively assigned by the parties,
we should state that the following find­ings of the Lower
Court on the commission of corporate
irregularities by the defendants have not been ques­tioned by the defendants:

1.      Failure
to hold stockholders’ meetings regu­larly. 
No stockholders’ meetings were held in 1947, 1950 and 1951;

2.     
Irregularities in the keeping of the books.  Un­true entries were made in the books
which could not simply be considered as
innocent errors;

3.      Illegal
investments in the Mabuhay Printing, P2,280.00,
and the Acoje Mining, P7,000.00.  The
investments were made not in pursuance of the corporate purpose and without the
requisite authority of two-thirds of the stockholders;

4.     
Unauthorized loans to J. Amado Araneta total­ling P132,082.00 (which, according to the defendants,
had been fully paid), in violation of the by-laws of the corporation
which prohibits any director from borrowing money from the corporation;

5.      Diversion
of corporate funds of the Ma-ao Su­gar Central Co., Inc. to:

J. Amado Araneta
& Co. ———————  P243,415.62

Luzon Industrial
Corp. ————————    585,918.17

Associated
Sugar——————————    463,860.36

General Securities
—————————-      86,743.65

Bacolod Murcia ——————————–   
501,030.61

Central Azucarera
del Danao ————–      97,884.42

Talisay-Silay
———————————–        4,365.90

The court found that sums were taken out
of the funds of the Ma-ao Sugar Central Co., Inc. and delivered to these
affiliated companies, and vice versa, without the approval of the Ma-ao Board of Directors, in vio­lation of
Sec. III, Art. 6-A of the by-laws.

The errors assigned in the appeal of the plaintiffs, as
appellants, are as follows:

I.

THE LOWER COURT
ERRED IN HOLDING THAT THE IN­VESTMENT OF CORPORATE FUNDS OF THE MA-AO SU­GAR
CENTRAL CO., INC., IN THE PHILIPPINE
FIBER PROCESSING CO. INC. WAS NOT A VIOLATION OF SEC. 17-1/2 OF THE CO., LAW.

II.

THE LOWER
COURT ERRED IN NOT FINDING THAT THE MA-AO SUGAR
CENTRAL CO., INC. WAS IN­SOLVENT.

III.

THE LOWER COURT
ERRED IN HOLDING THAT THE DISCRIMINATORY ACTS COMMITTED AGAINST PLANT­ERS DID
NOT CONSTITUTE MISMANAGEMENT.

IV.

THE LOWER COURT
ERRED IN HOLDING THAT ITS CULPABLE ACTS WERE INSUFFICIENT FOR THE DIS­SOLUTION
OF THE CORPORATION.

The portions of the Decision of the Lower
Court assailed by the plaintiffs as appellants are
as follows:

(1)  “*
* * Finally, as to the Philippine Fiber, the Court takes it that
defendants admit having invested
P655,000.00 in shares of stock of this company but that this was ra­tified by the Board of Directors in Resolu­tions
60 and 80, Exhibits ‘R’ and
‘R-21’; more than that, defendants contend that since said company was engaged
in the manufacture of su­gar bags
it was perfectly legitimate for Ma-­ao
Sugar either to manufacture sugar bags or invest in another corporation
engaged in said manufacture, and they quote authorities for the purpose, pp.
28-31, memorandum; the Court is
persuaded to believe that the defendants on this point are correct,
because while Sec. 17-1/2 of the
Corporation Law provides that:

‘No corporation organized under this act shall Invest its funds in any other corporation or business or
for any purpose other than the main purpose for which it was organized unless
its board of direc­tors has been so authorized in a resolu­tion by the
affirmative vote of stock­holders
holding shares in the corpora­tion entitling them to exercise at least
two-thirds of the voting power on such proposal at the stockholders’ meeting
called for the purpose.’

the Court is convinced that that law should
be understood to mean as the authorities state, that it is prohibited to the
Corpo­ration to invest in shares of another
cor­poration unless such an investment is authorized by two-thirds of the
voting power of the stockholders, if the purpose of the corporation in which
investment is made is foreign to the purpose of the investing corporation
because surely there is more logic in the stand that if the investment is made
in a corporation whose business is important to the investing corporation and would aid it
in its purpose, to require authority of the stockholders would be to unduly cur­tail
the power of the Board of
Directors; the only trouble here
is that the investment was made without any previous authority of the Board of
Directors but was only ratified afterwards; this of course would have the ef­fect
of legalizing the unauthorized act but it
is an indication of the manner in which corporate business is transacted
by the Ma­-ao Sugar administration, the fact that off and on, there would be
passed by the Board of Directors, resolutions ratifying all acts previously
done by the management, e.g. resolutions passed on February 25, 1947, and February 25, 1952, by the Board of Directors as set forth in the
affidavit of Isidro T. Dunca, p. 127, etc. Vol. 1.” (Decision, pp. 239-241 of
Record on Appeal.)

**              **            **

(2)  “On the other hand, the Court has noted
against plaintiffs that their conten­tion that Ma-ao Sugar is on the verge of
bankruptcy has not been clearly shown; against this are Exh. C to Exh. C-3; perhaps the best proof that insolvency is still far is that this action
was filed in 1953 and almost seven years have passed
since then without the company apparently getting worse than it was before; *
**” (Decision, pp. 243-244, supra.)

**         **            **

(3)  “As to the crop loan anomalies in that
instead of giving unto the planters the entire amount allotted for that, the
Central withheld a certain portion for their own use, as can be seen in Appendix
A of Exh. C-1 while the theory of plain­tiffs is that since between the amount
of P3,791,551.78 the crop loan
account pay­able, and the amount of P1,708,488.22, the crop loan receivable,
there is a difference of P2,083,063.56, this would indicate that this latter
sum had been used by the Central itself for its own purposes; on the other
hand, defendants contend that the first amount did not represent the totality
of the crop loans obtained from the Bank for the purpose of relending to the
planters, but that it included the Central’s own credit line on its 40% share
in the stand­ing crop; and that this irregularity amounts to a grievance by
plaintiffs as planters and not as stockholders, the Court must find that as to
this count, there is really reason to find that said anomaly is not a clear
basis for the derivative suit, first, be­cause plaintiffs’ evidence is not very
suf­ficient to prove clearly the alleged diver­sion in the face of defendants’
defense; there should have been a showing that the Central had no authority
to make the diver­sion; and secondly, if the anomaly existed, there is ground
to hold with defendants that it was an anomaly pernicious not to the Central
but to the planters;
it was not even pernicious to the stockholders.

“Going to the discriminatory acts of J. Amado Araneta, namely,
manipulation of cane allotments, withholding of molasses and alcohol shares, withholding of
truck­ing allowance, formation of rival planters associations, refusal to deal
with legiti­mate planters group, Exh. S; the Court no­tices that as to the
failure to provide hauling transportation; this in a way is corroborated by
Exh. 7, that part contain­ing the decision of the Court of First In­stance of
Manila, civil 20122, Francisco Rodriguez v. Ma-ao Sugar; for the reason,
however, that even if these were true, those grievances were grievances of
plain­tiffs as planters and not as stockholders – just as the grievance as to
the crop loans already adverted to, – this Court will find insufficient merit
on this count.” (Decision, pp. 230-231, supra.)

**       **            **

(4)  ”
* * *; for the Court must admit its limitations and confess that it
cannot pretend to know better than the Board in matters where the Board has not transgressed
any positive statute or by-law especially where as here there is the
circumstance that presumably, an impartial representative in the Board of
Directors, – the one from the Philippine National Bank, – against whom
apparently plaintiffs have no quar­rel, does not appear to have made any pro­test
against the same; the net result will be to hold that the culpable acts proved
are not enough to secure a dissolution; the Court will only order the
correction of abuses, proved as already mentioned; nor will the Court grant any
more damages one way or the
other.” (Decision, p. 244, supra.)

On the other hand, the errors assigned in the appeal of the
defendants as appellants are as follows:

I.

THE LOWER COURT ERRED IN ADJUDGING
J. AMADO ARANETA TO PAY TO MA-AO SUGAR CENTRAL CO., INC., THE AMOUNT OF P46,270.00,
WITH 8% INTEREST FROM THE DATE OF FILING OF THE COM­PLAINT.

II.

THE LOWER COURT ERRED IN NOT ORDERING THE
PLAINTIFFS TO PAY THE DEFENDANTS, PARTICU­LARLY J. AMADD ARANETA, THE DAMAGES
PRAYED FOR IN THE COUNTERCLAIM OF SAID DEFENDANTS.

The portions of the Decision of the Lower Court assailed by
the defendants as appellants are as follows:

(1)  “As to the alleged juggling of books in
that the personal account of J. Amado Ara­neta of P46,270.00 was closed on October 31, 1947 by
charges transferred to loans receiv­able nor was interest paid on this amount, the Court finds that this is related to charge No. 1, namely, the granting
of personal loans to J. Amado Araneta; it is really true that according to the
books, and as admitted by defendants, J. Amado Araneta secured personal loans; in 1947, the cash advance to him was P132,082.00 (Exh.
A); the Court has no doubt that this was against the By-Laws which pro­vided
that:

‘The Directors shall not in any case borrow money from the
Company’.  (Sec. III, Art. 7);

the Court therefore finds this count to be duly
proved; worse, the Court also finds that as plaintiffs contend, while
the books of the Cor­poration would show that the last balance of P46,270.00
was written off as paid, as testi­fied to by Auditor Mr. Sanchez, the payment appeared to
be nothing more than a transfer of his loan receivable account, stated other­wise,
the item was only transferred from the personal account to the loan receivable
ac­count, so that;
again the Court considers established the
juggling of the books; and then again, it is also true that the loans were se­cured without any interest and
while it is true that in the
Directors, meeting of 21 October, 1953,
it was resolved to collect 8%,
the Court does not see how such a unilateral action of the Board could bind the
borrowers.  Be it stat­ed that defendants
have presented in evidence Exh. 5
photostatic copy of the page on
loan re­ceivable and it is sought
to be proved that J. Amado Araneta’s debt was totally paid on 31 October, 1953; to the Court, in the absence of definite
primary proof of actual payment having
found out that; there had already been a juggling of books, it cannot
just believe that the amount had been paid as noted in the books.” (Decision, pp. 233-235 of Record on Appeal.)

(2)  “With respect to the second point in the
motion for reconsideration to the effect that the Court did not make any
findings of fact on the counterclaim of defendants, al­though the Court did not
say that in so many words, the Court takes it that its findings of fact on
pages 17 to 21 of its decision were
enough to justify a dismissal of the counter­claim, because the counterclaims were
based on the fact that the complaint was premature, im­proper, malicious and
that the language is unnecessarily
vituperative, abusive and insult­ing; but the Court has not found that the com­plaint is premature; nor has the Court
found that the complaint was malicious; these find­ings can be gleaned from the
decision with res­pect to the allegation that the complaint was abusive and
insulting, the Court does not con­cur; for it has not seen anything in the evi­dence
that would justify a finding that plain­tiffs had been actuated by bad faith,
nor is them anything in the
complaint essentially libelous; especially as the rule is that allegations in pleading where
relevant, are privileged even though they may not be clearly proved after­wards;
so that the Court has not seen any me­rit in the counterclaims; and the Court had
believed that the decision already carried with it the implication of the
dismissal of the counterclaims, but if that is not enough, the Court makes its position clear on this matter
in this order, and clarifies that it has dismissed the counterclaims of
defendants; * * *” (Order of September 3, 1960, pp. 248­-249, supra.)

Regarding Assignment of Errors Nos. 2, 3 and 4 contained in the brief of the plaintiffs as
appellants, it appears to us that the Lower Court was correct in its appreciation (1) that the evidence
presented did not show that the defendant Ma-ao Sugar Company was in­solvent; (2) that the alleged discriminatory acts com­mitted by the defendant Central
against the planters were not a proper subject of derivative suit, but, at most, constituted a cause of action of the
individual planters; and (3) that the acts of mismanagement com­plained of and
proved do not justify a dissolution of the corporation.

“Whether insolvency exists
is usually a question of fact, to be determined from an in­ventory of,
the assets and their value, as well as a consideration of the liabilities.  * *
*.  But the mere impairment of capital stock alone does not establish
insolvency, there being other evidence as to the corporation being a going
concern with sufficient assets.  Also, the excess of liabilities over assets does not
establish insolvency, when other assets are available.” (Fletcher Cyc. of the Law of Private
Corporations, Vol. 15A, 1938 Ed., pp. 34-37; underscoring supplied).

“But relief by dissolution
will be award­ed in such cases only where no other adequate remedy is
available, and is not available where the rights of the stockholders can be, or
are, protected in some other way.” (16
Fletcher Cyc. Corporations, 1942 Ed., pp. 812-813, citing ‘Thwing v.
McDonald’, 134 Minn. 148 156 N.W.
780, 158 N.W. 820, 159 N.W. 564, Ann. Cas. 1918 E 420; Mitchell v. Bank of St.
Paul, 7 Minn. 252).

The First Assignment of Error in the brief of the plaintiffs as
appellants, contending that the investment of corporate funds by the Ma-ao
Sugar Co., Inc. in another corporation (the Philippine Fiber Processing Co.,
Inc.) constitutes a violation of Sec. 17-1/2 of the Cor­poration Law, deserves consideration.

Plaintiffs-appellants contend
that in 1950 the Ma-so Sugar Central Co., Inc., through its President, J. Amado
Araneta, subscribed for P300,000.00 worth of capital stock of the Philippine Fiber Processing Co., Inc.; that
pay­ments on the subscription were made on September 20, 1950, for P150,000.00,
on April 30, 1951, for P50,000.00, and on March 6, 1952, for P100,000.00; that
at the time the first two payments were made there was no board re­solution
authorizing the investment; and that it was only on November 26, 1951, that the
President of Ma-ao Sugar Central Co., Inc., was so authorized by the Board of Directors.

In addition, 355,000 shares of stock of the same Phi­lippine
Fiber Processing Co., Inc., owned by Luzon Indus­trial Corporation were
transferred on May 31, 1952, to the defendant Ma-ao Sugar Central Co., Inc.,
with a valuation of P355,000.00 on the
basis of P1.00 par value per share. 
Again, the “investment” was made without prior board re­solution,
the authorizing resolution having been subsequently approved only on June 4,
1952.

Plaintiffs-appellants also contend that even assum­ing, arguendo,
that the said Board Resolutions are valid, the transaction is still wanting in
legality, no resolu­tion having been approved by the affirmative vote of stock­holders
holding shares in the corporation entitling them to exercise at least
two-thirds of the voting power, as re­quired in Sec. 17-1/2 of the
Corporation Law.

The legal provision invoked by the plaintiffs, as appellants,
Sec. 17-1/2 of the Corporation Law, provides:

“No corporation organized under this act shall invest its funds
in any other corpora­tion or business, or for any purpose other than the main
purpose for which it was orga­nized, unless its board of directors has been so
authorized in a resolution by the affirmative
vote of stockholders holding shares in the
corporation entitling them to exercise at
least two-thirds of the vot­ing power on such proposal at a stockhold­ers meeting called for the
purpose * * *.”

On the other hand, the defendants, as appellees, invoked Sec. 13, par. 10 of the Corporation Law,
which provides:

“SEC. 13 – Every corporation has the power:

**       **         **

(9)    To
enter into any obligation or con­tract essential to the proper administration
of its corporate affairs or necessary for the proper transaction of the business or accom­plishment of the purpose for which the
corpo­ration was organized;

(10)  Except as in this section other­wise provided,
and in order to accomplish its purpose as stated in the articles of
incorporation, to acquire, hold, mortgage, pledge or dispose of shares, bonds,
securities and other evidences of indebtedness of any domestic or foreign corporation.”

A reading of the two afore-quoted provisions shows that there is
need for interpretation of the apparent conflict.

In his work entitled “The Philippine Corporation Law,”
now in its 5th edition, Professor Sulpicio S. Guevara of the University of the Philippines,
College of Law,
a well-known authority in commercial law, reconciled these two apparently
conflicting legal provisions, as follows:

“j.     Power to acquire or dispose of shares or
securities.  – A private corporation
in order to accomplish its purpose as stated in its articles of incorporation,
and subject to the li­mitations imposed by the Corporation Law, has the power
to acquire, hold, mortgage, pledge or dispose of shares, bonds, securities, and
other evidences of indebtedness of any domes­tic or foreign corporation.  Such an act, if done in pursuance of the
corporate purpose, does not need
the approval stockholders; but when the purchase of shares of another
corporation is done solely for investment and not incorporation, the vote of
approval of the stockholders is necessary.  In any case purchase of such
shares or securities must be subject to the limitations established by the
Corporation Law; namely, (a) that no agricultural or mining corporation shall
in any­wise be interested in any other agricultural or mining corporation; or
(b) that a non-agricultural or non-mining corporation shall be restricted to
own not more than 15% of the voting stock of any agricultural or mining
corporation; and (c) that such holdings shall be solely for investment and not
for the pur­pose of bringing about a monopoly in any line of commerce or
combination in restraint of trade.” (The Philippine Corporation Law by
Sulpicio S. Guevara, 1967 Ed., p. 89.) 
(Em­phasis ours.)

“40.  Power to invest corporate funds.  – A private corporation has the power to
invest its corporate funds ‘in any other corporation or business, or for any purpose
other than the main purpose for which it was organized,’ provided that ‘its board of directors has been
so au­thorized in a resolution by the affirmative vote of stockholders holding
shares in the corporation entitling then to exercise at least two-thirds of the
voting power on such a proposal at a stock­holders’
meeting called for that purpose,’ and provided further, that no agricultural or
mining corporation shall in anywise be interested in any other agricultural or
mining corporation.  When the investment is necessary to accomplish its purpose or
purposes as stated in its articles of incorporation, the approval of the
stockholders is not necessary.” (Id.,
p.108) (Emphasis ours.)

 We agree with Professor Guevara.

We
therefore agree with the finding of the Lower
Court that the investment in question does not
fall un­der the purview of Sec. 17-1/2 of the Corporation Law.

With respect to the defendants’ assignment of er­rors, the second
(referring to the counterclaim) is clear­ly without merit.  As the Lower Court aptly ruled in its Order
of September 3, 1960 (resolving the defendants’ Motion for Reconsideration) the
findings of
fact were enough to justify a dismissal
of the counterclaim, “be­cause the counterclaims were based on the fact
that the complaint was premature, improper, malicious and that the language is
unnecessarily vituperative, abusive and insulting; but the Court has not found
that the complaint is premature; nor has the Court found that the complaint was
malicious; these findings can be gleaned from the decision; with respect to the
alle­gation that the complaint was abusive and insulting, the Court does not
concur; for it has not seen anything in the evidence that would justify a
finding that plain­tiffs had been actuated by bad faith, nor is there
any­thing in the complaint essentially libelous especially as the rule is that
allegations in pleadings where re­levant, are privileged even though they may
not be clear­ly proved afterwards; * * *”

As regards defendants’ first assignment of error, re­ferring to
the status of the account of J. Amado Araneta in the amount of P46,270.00, this
Court likewise agrees with the finding of the Lower Court that Exhibit 5, pho­tostatic
copy of the page on loans receivable, does not constitute definite primary
proof of actual payment, par­ticularly in this case where there is evidence
that the account in question was
transferred from one account to another. 
There is no better substitute for an official receipt and a cancelled check as
evidence of payment.

In the judgment, the lower court ordered the ma­nagement of the
Ma-ao Sugar Central Co., Inc. “to re­frain from making investments in
Acoje Mining, Mabu­hay Printing, and any other company whose purpose is not
connected with the sugar central business.” This portion of the decision
should be reversed because Sec. 17-1/2 of the Corporation Law allows a corpora­tion
to “invest its funds in any other corporation or business, or for any
purpose other than the main purpose for which it was organized,” provided
that its board of directors has been so authorized by the affirmative vote of
stockholders holding shares en­titling them to exercise at least two-thirds of
the voting
power.

IN VIEW OF ALL THE FOREGOING, that part of the judgment
which orders the Ma-ao Sugar Central Co., Inc. “to refrain from making
investments in Acoje Mining, Mabuhay Printing, and any other company whose
purpose is not
connected with the sugar central business,” is reversed.  The other parts of the judgment are
affirmed.  No special pronouncement as to
costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Castro,
Fernando, and Barredo, JJ., concur.

Makalintal, Sanchez, and
Teehankee, JJ., did not take part.