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[ G.R. No. 137238. March 24, 1999]

AMBON-AMBON CO., INC. vs. CA & DE GUZMAN

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 24, 1999.

G.R. No. 137238 (Ambon-Ambon Company, Inc. vs. The Court of Appeals and Clarita H. de Guzman.)

Petitioner assails the resolution of the Court of Appeals reversing the decision of the regional trial court, thus dismissing the case for unlawful detainer filed by petitioner on the ground of lack of authority of its president to sue and be sued in behalf of petitioner-corporation by reason of the absence of any board resolution authorizing the president to act in its behalf.

The present controversy stemmed from an action for unlawful detainer filed by petitioner against private respondent, wherein petitioner failed to attach to said complaint a copy of a board resolution authorizing its president to file an ejectment case, together with the secretary's certificate attesting to the existence of such board resolution.

The municipal trial court dismissed the case for lack of cause of action on the ground that there is a pending case for the cancellation of petitioner's title over the subject premises and for failure of petitioner to establish a cause of action against private respondent.

Upon appeal, the regional trial court reversed. Private respondent then filed a petition for review wherein the Court of Appeals rendered the decision now being assailed.

Initially, the Court notes that petitioner failed to submit the required proof of service of petition on the Court of Appeals. Then too, no explanation was given why service was not done personally as required by Section 11, Rule 13 in relation to Section 3, Rule 45 and Section 5, Rule 56 of the Rules of Court.

Over and above these technical flaws is the fact that the Court finds nothing erroneous in the assailed decision. Petitioner's contention that the issue of the failure to attach the board resolution authorizing its president to sue and be sued in behalf of petitioner corporation was raised too late because this was done only on appeal, is unavailing. As correctly ruled by the Court of Appeals, although the issue of the authority of the president of petitioner-corporation to sue was not raised by private respondent in her Amended Answer, the same was nonetheless included in the Pre-trial Order as one of the issues to be resolved by the municipal trial court.

We can thus but quote the Court of Appeals when it declared, to wit:

The incorporation of the aforestated issue in the pre-trial order takes precedence over the failure of the petitioner/defendant to raise the same in her Answer and Amended Answer. This is so since "if at the pre-trial conference a party states an issue which is not within the pleadings, the court may incorporate the issue in the pre-trial order without requiring an amendment of the pleading, because the pre-trial order supersedes the pleadings and governs the subsequent course of the trial (Borja vs. Roxas, 73 Phil. 647 [1942]).

(p. 31, Rollo)

WHEREFORE, petition is hereby denied due course.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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