BLAME THE TRAVEL ADVISORIES (President Noynoy Aquino continues to disprove the terror warnings within travel advisories issued by foreign governments)

By Siesta-friendly

Despite last Monday’s carnage caused by a bomb that exploded inside a passenger bus that has of yet claimed 5 lives and injured many more, President Aquino remains unconvinced that the travel advisories issued last year by 6 foreign governments are credible. 

In general terms, the travel advisories spoke of possible terrorist attacks in Philippine cities, including Metro Manila.  That the advisories apparently did not jibe with domestic intelligence data prompted the government to believe that the travel advisories were implausible.

That the advisories warned of terrorist attacks in places frequented by foreigners, such as malls, strengthened the argument of the government (so they say) that the advisories were unreliable because the attack was made in a bus.

Such is the logic of the Aquino government.

Maybe from now on, we should look to these foreign advisories for our own safety precautions.  If these governments see it fit to warn their citizens of terrorist attacks then why should we rely on our government unruffled by any terrorist warnings?  It’s the least we can do since our own government still believes these terror warnings, despite last Monday’s bus bombing, are not credible.

For everyone’s info, below are the travel advisories issued by Australia, Canada, New Zealand and U.S.A to their citizens.  Of the 6, these 4 were chosen because they have remained unchanged since being issued November-December last year.

By the way, the Australian travel advisory (see below) included “public transport including buses” as possible terrorist targets.

The Travel Advisories

Australian Travel Advice as of December 3, 2010

Level: high degree of caution

Terrorist attacks could occur at any time, anywhere in the Philippines, including in Manila. We continue to receive credible reports indicating terrorists are planning attacks against a range of targets in a variety of locations, including places frequented by foreigners. You should avoid places known to be terrorist targets (see the Terrorism section below).

Terrorism:

We advise you to exercise a high degree of caution in the Philippines because of the high threat of terrorist attack and high level of serious crime. Pay close attention to your personal security at all times and monitor the media for information about possible new safety or security risks.

Terrorist attacks, including bombings, are possible any time, anywhere in the Philippines, including in Manila. We continue to receive credible reports indicating terrorists are planning attacks against a range of targets, including places frequented by foreigners.

In planning your activities, consider the kind of places known to be terrorist targets and the level of security provided. Possible targets include places frequented by foreigners such as shopping malls (including mega malls), markets, embassies, expatriate housing complexes, hostels, guest houses, clubs, hotels, restaurants, fast food outlets, bars, pubs, cinemas, convention centres, places of worship, public transport including buses and bus terminals, ferries and trains, schools, tourist areas, festivals, outdoor recreation and major sporting events. Infrastructure associated with the Philippines Government such as airports, airfields, sea ports, railways, roads, military facilities, oil depots, power and telecommunications facilities and public buildings are also potential terrorist targets. [underline supplied]

Canadian Travel Warning as of December 24, 2010

Level: high degree of caution

Bomb attacks could occur at any time in Manila and other key cities. Targets could include places frequented by foreigners such as large shopping malls and convention centres.

US Travel Warning as of November 02, 2010

Terrorist attacks could be indiscriminate and could occur not only in the southern islands but also in other areas, to include Manila.  Targeted sites may be public gathering places that are frequented by expatriates and foreign travelers, including American citizens.  Such sites could include, but are not limited to, airports, shopping malls, conference centers and other public venues. 

New Zealand Travel Advisory as of 02 November 2010

There is some risk to your security elsewhere in the Philippines, including in Manila, due to the threat from terrorism and risk of kidnapping. We continue to receive reports that terrorists are planning attacks including in places frequented by foreigners such as large shopping malls and convention centres. New Zealanders are strongly advised to exercise caution at this time.

If you were a nation’s leader and read these advisories, would you consider them unreliable because the information therein were not picked up by your local intelligence people?  And would you continue to dismiss them after all that’s happened? Which is worse - being led by the blind or by idiots?

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POWERS THAT BE: Board Resolution vs. Special Power of Attorney (Case Digest: Bank of the Philippine Islands vs. Hon. Court of Appeals, et al., G.R. No. 168313. October 6, 2010)

By Siesta-friendly

Why the Supreme Court can still be bothered with an issue as simple as that involved in this case is a failure in the system leading to unnecessary clogging of courts’ dockets and further delay in the disposition of cases with substantial issues.

Anyway, below is the condensed form of the case.

First Union Group Enterprises (First Union) borrowed from Bank of the Philippine Islands (BPI) PhP5,000,000.00 and USD123,218.32. As partial security for the loan, Spouses Linda and Eddy Tien executed a Real Estate Mortgage Agreement covering 2 condominium units.  Linda also executed a Comprehensive Surety Agreement where she agreed to be solidarily liable with First Union for its obligations to BPI.   Despite repeated demands, First Union failed to pay BPI the amounts due.

First Union’s and Linda’s continued failure to settle their outstanding obligations prompted BPI to file a complaint for collection of sum of money.  The complaint’s verification and certificate of non-forum shopping were signed by Ma. Cristina F. Asis (Asis) and Kristine L. Ong (Ong).  However, no Secretary’s Certificate or Board Resolution was attached to evidence Asis’ and Ong’s authority to file the complaint.  Instead of submitting a board resolution, BPI attached a “Special Power of Attorney” (SPA) executed by Zosimo A. Kabigting (Zosimo), Vice-President of BPI.  The SPA authorized Asis and Ong or any lawyer from the Benedicto Versoza Gealogo and Burkley Law Offices to initiate any legal action against First Union and Linda. 

First Union and Linda filed a motion to dismiss on the ground that BPI violated Rule 7, Section 5 of the Rules of Civil Procedure (Rules); BPI failed to attach to the complaint the necessary board resolution authorizing Asis and Ong to institute the collection action against First Union and Linda. 

BPI filed an “Opposition to the Motion to Dismiss,” arguing that the verification and certificate of non-forum shopping sufficiently established Asis’ and Ong’s authority to file the complaint and proof of their authority could be presented during the trial.  Further, BPI alleged that a complaint “can only be dismissed under Section 5, Rule 7 of the 1997 Rules of Civil Procedure if there was no certification against forum shopping.”  The provision, according to BPI, “does not even require that the person certifying should show proof of his authority to do so.” 

The RTC granted First Union’s and Linda’s Motion to Dismiss.

The CA affirmed.

BPI filed a petition for review on certiorari before the SC.  It contended that in Shipside v. Court of Appeals (February 20, 2001, G.R. No. 143377, 352 SCRA 334),  the SC excused Shipside’s belated submission of its Secretary’s Certificate and held that it substantially complied with the rule requiring the submission of a verification and certificate of non-forum shopping as it did, in fact, make a submission.

BPI’s cited Shipside case also involved the absence of proof – attached to the petition – that the filing officer was authorized to sign the verification and non-forum shopping certification. In the Motion for Reconsideration that followed the dismissal of the case, the movant attached a certificate issued by its board secretary stating that 10 days prior to the filing of the petition, the filing officer had been authorized by petitioner’s board of directors to file said petition.  Thus, proper authority existed but was simply not attached to the petition.  On this submission, the petitioner sought and the SC positively granted relief.

In the present case, the SC did not see a situation comparable to the cited Shipside. BPI did not submit any proof of authority in the first instance because it did not believe that a board resolution evidencing such authority was necessary. Instead of immediately submitting an appropriate board resolution – after the First Union and Linda filed their motion to dismiss – BPI argued that it was not required to submit one and even argued that: 

The Complaint can only be dismissed under Section 5, Rule 7 of the 1997 Rules of Civil Procedure if there was no certification against forum shopping.  The Complaint has.  The provision cited does not even require that the person certifying show proof of his authority to do so x x x.

In fact, BPI merely attached to its opposition a special power of attorney issued by Mr. Kabigting, a bank vice-president, granting Asis and Ong the authority to file the complaint.  Thus, no direct authority to file a complaint was initially ever given by BPI – the corporate entity in whose name and behalf the complaint was filed.  Only in its Reply to the Comment to plaintiff’s Opposition to the Motion to Dismiss did BPI “beg the kind indulgence of the Honorable Court as it inadvertently failed to submit with the Special Power of Attorney the Corporate Secretary’s Certificate which authorized Mr. Zosimo Kabigting to appoint his substitutes.”  Even this submission, however, was a roundabout way of authorizing the filing officers to file the complaint. 

BPI, interestingly, never elaborated nor explained it’s belatedly claimed inadvertence in failing to submit a corporate secretary’s certificate directly authorizing its representatives to file the complaint; it particularly failed to specify the circumstances that led to the claimed inadvertence. Under the given facts, rather than an inadvertence, there was an initial unwavering stance that the submission of a specific authority from the board was not necessary.  In blunter terms, the omission of the required board resolution in the complaint was neither an excusable deficiency nor an omission that occurred through inadvertence.  In the usual course in the handling of a case, the failure was a mistake of counsel that BPI never cared to admit but which nevertheless bound it as a client.  From this perspective, BPI’s case is different from Shipside so that the ruling in this cited case cannot apply. 

The SC held that the dismissal of the case is appropriate without prejudice to its refiling as the Rules allow.

It bears mention that under the Corporation Code, the “corporate powers of all corporations xxx shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors xxx (Section 23).” No corporate officer can just execute an SPA to delegate corporate authority. 

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HIS IS HERS AND VICE-VERSA (Buying real property from spouses)

By Obiter07

Buyers better beware when dealing with real property that’s conjugally owned.   Not only should a buyer inquire into the title of vendor-spouses, he should also inquire into the authority to sell the property if only one of the spouses is transacting the same with the use of a special power of attorney (“SPA”).

In Spouses Aggabao vs. Parulan, et al. G.R. No. 165803, 1 September 2010, the buyers sought to purchase 2 lots which was owned by estranged spouses.   The wife presented a purported SPA from her husband.

The buyers allege that they acted in good faith in relying on the SPA.  They inquired with the Register of Deeds on the status of the properties and found that it had been encumbered on at least 2 occasions by the wife utilizing SPAs executed by her husband. 

The buyers proceeded to buy the properties.  They were able to secure 1 TCT and transferred the title in their name.  Subsequently, they learned that the other TCT was with a brother of the husband.   This brother sought to negotiate a sale of the property separately.  The property was offered for P800,000 but the buyers made a counter-offer of  P250,000 which was declined.  The buyers would later on insist that the sale had already been consummated with the wife.

 

The husband then brought suit against the buyers to annul the sale of both properties while the buyers sought specific performance.

The court ruled against the buyers.

The court relied on the provisions of the Family Code when it invalidated the sale entered into by the wife with a forged SPA.   The buyers were obliged to “exercise the necessary prudence to inquire into the wife’s authority to sell and that “the sale of conjugal property without the consent of the husband was not merely voidable but void; hence, it could not be ratified.”

The court further stated that a “purchaser in good faith is one who buys the property of another, without notice that some other person has a right to, or interest in, such property, and pays the full and fair price for it at the time of such purchase or before he has notice of the claim or interest of some other persons in the property.  He buys the property with the belief that the person from whom he receives the thing was the owner and could convey title to the property.  He cannot close his eyes to facts that should put a reasonable man on his guard and still claim he acted in good faith. The status of a buyer in good faith is never presumed but must be proven by the person invoking it.” And that diligence extends not only to verifying the status of the title but also to the authority of the transacting spouse.

The buyers’ insistence that they performed due diligence in verifying the status of the TCTs is unavailing. Article 124 of the Family Code ”requires the consent of both spouses before the conjugal property may be disposed of by sale, mortgage, or other modes of disposition. In Bautista v. Silva, the Court erected a standard to determine the good faith of the buyers dealing with a seller who had title to and possession of the land but whose capacity to sell was restricted, in that the consent of the other spouse was required before the conveyance, declaring that in order to prove good faith in such a situation, the buyers must show that they inquired not only into the title of the seller but also into the seller’s capacity to sell. Thus, the buyers of conjugal property must observe two kinds of requisite diligence, namely: (a) the diligence in verifying the validity of the title covering the property; and (b) the diligence in inquiring into the authority of the transacting spouse to sell conjugal property in behalf of the other spouse.”

The buyers, knowing the requirements of the law, should have inquired into the SPA purportedly executed by the husband. They would have discovered that the spouses had “been estranged from each other and were under de facto separation, and that they probably held conflicting interests that would negate the existence of an agency between them. To lift this doubt, they must, of necessity, further inquire into the SPA of Ma. Elena.  The omission to inquire indicated their not being buyers in good faith xxx.”

The “unquestioning reliance” on the SPA “without first taking precautions to verify its authenticity was not a prudent buyer’s move.”  The court found that the notary of the document was not even authorized to act as such for the period in question.  

Moreover, making payment despite the absence of one TCT shows a “lack of precaution.” The court noted their “passivity” in not insisting on a copy of the title which “reflected their lack of due care.” 

Their good faith is also called into question by their failing to take immediate action against the seller when they found one of the titles to be in the possession of another. Instead, they even met with this third party in order to negotiate.  In this case, it was further established that the signature of the husband had been forged, since he was out of the country at the time and the notary was not authorized.

Apart from checking the title with the Register of Deeds, a buyer should now also check the authenticity of an SPA - or better yet get both spouses to sign the deed of sale - including the credentials of the notary public in order to prove good faith and the exercise of due diligence, specially when dealing with spouses.  It is only what the spouses have sold together that the courts will not put asunder.

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