[ G.R. No. 141937. March 15, 2000]

JOVENCIO F. CINCO, et al. vs. JOSE A. BERNAS, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 15 2000.

G.R. No. 141937 (Jovencio F. Cinco, et al. vs. Jose A. Bernas, et al.)

This is a petition for review from the decision, dated September 23, 1999, of the Court of Appeals dismissing the petition for certiorari filed by petitioners to annul the order, dated March 30, 1999, and the resolution, dated May 18, 1999, of the Securities and Exchange Commission (SEC).

Petitioners are stockholders of the Makati Sports Club, Inc. (MSCI), a corporation duly organized and existing under the laws of the Republic of the Philippines. The oversight committee of MSCI, which is composed of its previous presidents, sent a notice, dated December 2, 1997, to the stockholders informing them of a special meeting on December 17, 1997. The purpose of the special meeting was to decide on the removal of the current members of the board of directors and, if necessary, to elect new members thereof.

Respondents filed with the SEC a complaint for injunction, docketed as SEC Case No. R-97-5840, to enjoin the special meeting on the ground that it was improperly called. In an order, dated December 16, 1997, Hearing Officer Gerard M. Lukban denied the prayer of respondents for the issuance of a temporary order.

During the special meeting, stockholders representing 79.86% of the voting capital stock of MSCI approved the removal of the current members of the board of directors and the election of new members. Petitioners were among those elected as new members. Respondents then filed a supplemental complaint, dated January 14, 1998, praying that the special meeting be declared void and that petitioners be enjoined from assuming office as members of the board of directors.

Petitioners moved for the dismissal of SEC Case No. R-97-5840 on the ground that the same has become moot because at the annual stockholders' meeting of MSCI held on April 20, 1998, stockholders representing 71% of MSCI's voting capital stock had ratified the calling of the special meeting and the acts approved thereat. In an order, dated June 10, 1998, Hearing Officer Malthie G. Militar denied the motion to dismiss of petitioners. Petitioners filed with the SEC a petition for certiorari, docketed as SEC EB Case No. 613, to set aside the June 10, 1998 order of Hearing Officer Militar.

The SEC issued an order, dated September 11, 1998, granting the petition for certiorari of petitioners and reversing the order, dated June 10, 1998, of Hearing Officer Militar. But, on motion of respondents, the SEC reconsidered its order in another order, dated March 30, 1999. Petitioners filed a motion for reconsideration, but their motion was denied by the SEC in its resolution dated May 18, 1999.

Petitioners filed with the Court of Appeals a petition for certiorari under Rule 65, dated July 21, 1999, to annul the order, dated March 30, 1999 and the resolution, dated May 18, 1999, of the SEC which upheld the order of the hearing officer denying petitioners' motion to dismiss. In a resolution, dated September 23, 1999, the Court of Appeals dismissed the petition for certiorari of petitioners. The Court of Appeals likewise denied the petitioners' motion for reconsideration, dated October 15, 1999, in a resolution, dated February 9, 2000. The Court of Appeals ruled that petitioners chose the wrong remedy in filing a petition for certiorari under Rule 65 rather than a petition for review under Rule 43. The Court of Appeals held that even if the petition for certiorari under Rule 65 is considered to have been filed as a petition for review under Rule 43, it should nonetheless be denied for being filed late.

Hence, the instant petition.

The Court of Appeals properly dismissed the special civil action of certiorari filed under Rule 65, �1 of the Rules of Court, a petition for certiorari can be filed only of there is no appeal private respondent any plain, speedy, and adequate remedy in the ordinary course of law to annul the assailed proceedings. Under Rule 43, ��1, 3, and 5, final judgments or orders of the SEC should be brought to the Court of Appeals by petition for review. Since the SEC resolution, dated May 18, 1999, dismissed the special civil action of certiorari brought by petitioners, it was a final order and, therefore, petitioners should have filed with the Court of Appeals a petition for review under Rule 43 and not another special civil action for certiorari.

Nor can the petition for certiorari filed in the Court of Appeals under Rule 65 be treated as a petition for review under Rule 43. Since petitioners received a copy of the SEC resolution, dated May 18, 1999, on May 26, 1999, they had 15 days, until June 10, 1999, within which to file a petition for review under Rule 43. However, petitioners filed their petition only on July 23, 1999. It was filed 43 days late. It is evident that petitioners filed a petition for certiorari under Rule 65 as a substitute for a petition for review under Rule 43 which they can no longer file owing to the expiration of their period for doing so.

For the foregoing reasons, the petition is DENIED for lack of showing that the Court of Appeals committed reversible error.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court


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