REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

BRANCH 1146
BAGUIO CITY

PHILIPPINE KISSET CORP,

Plaintiff,
CIVIL CASE NO. 19-00928-00
For: Unlawful Detainer
-versus- and Damages.

OTTOG AND ALL PERSONS

CLAIMING RIGHTS UNDER HIM.
Defendants.
x-------------------------------------------x

MOTION TO DISMISS
COMES NOW, defendant OTTOG INTERNATIONAL
CORPORATION, through counsel, and to the Honorable Court,
respectfully states:

ANTECEDENT EVENTS

1. During the initial cross-examination of witness Atty. Gonggong

for plaintiff, he was asked by collaborating counsel for herein
defendant if there was an authority from the Board of
Directors of plaintiff to have the instant complaint filed with
the Honorable Court and was also asked to produce the same.
The authority to file the complaint was asked upon the witness
considering that nothing on records of the case shows a
document citing the authority in the filing of the unlawful
detainer case and damages against herein defendant;

2. Witness for plaintiff answered in the affirmative and produced

through counsel for the plaintiff a Secretary’s Certificate which
was executed several years ago quoting a resolution by
plaintiff’s Board of Directors;

3. A perusal of the said Secretary’s Certificate readily shows that

it merely authorizes an unnamed President of plaintiff to sign
the verification and certification of non-forum shopping in all
pleadings but without a mention of authority to file
1
 specifically an unlawful detainer case with damages for and on
behalf of the plaintiff as a corporation against herein
defendant;

4. Herein defendant through collaborating counsel manifested its

vehement objection to the said resolution quoted in the
Secretary’s Certificate and maintained that the filing of the
complaint in the instant case was unauthorized;

5. Herein defendant maintained in open Court that the filing of

the complaint for unlawful detainer and damages against it
was unauthorized and when asked by the Honorable Court on
what it wants, an oral motion to dismiss the complaint on the
ground lack of jurisdiction by the Honorable Court over the
case was immediately made;

6. The Honorable Court advised herein defendant through its

collaborating counsel to reduce the said motion in writing and
gave the latter five (5) days from May 31, 2019 within which to
file the same;

7. Herein defendant moved for the deferment of the cross-

examination then being conducted upon plaintiff’s witness to
give way to the filing of the written motion to dismiss and its
resolution by the Honorable Court, thus, the proceedings on
May 31, 2019 in the instant case was deferred;

8. Herein defendant is now filing its Motion To Dismiss which

could be raised at any stage of the proceedings for being
grounded on lack of jurisdiction over the case.

ISSUE TO BE RESOLVED

It is humbly submitted that based on the complaint

specifically under the Verification and Certification of Non-Forum
Shopping portion thereof filed with the Honorable Court including
the Resolution by the Board of Directors of plaintiff quoted in the
Secretary’s Certificate executed several years ago as to the authority
of its unnamed President to sign verification and certification of
non-forum shopping in all pleadings, the filing of the instant
complaint for Unlawful Detainer and Damages was unauthorized
for which the Honorable Court could not acquire jurisdiction. The
Honorable Court lacks jurisdiction over the case, the complaint
being unauthorized.

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 ARGUMENTS AND DISCUSSION

The court should dismiss the

complaint on the ground that it has no
jurisdiction over the complaint and
the plaintiff.

9. Philippine Kisset, as a corporation, is the real party-in-

interest because its personality is distinct and separate
from the personalities of its stockholders. A corporation has
no power, except those expressly conferred on it by the
Corporation Code and those that are implied or incidental
to its existence. In tum, a corporation exercises said powers
through its board of directors and/or its duly-authorized
officers and agents. Thus, it has been observed that the
power of a corporation to sue and be sued in any court is
lodged with the board of directors that exercises its
corporate powers. In turn, physical acts of the corporation,
like the signing of documents, can be performed only by
natural persons duly authorized for the purpose by
corporate by-laws or by a specific act of the board of
directors. It necessarily follows that "an individual
corporate officer cannot solely exercise any corporate power
pertaining to the corporation without authority from the
board of directors.

10. Philippine Numismatic Ad Antiquarian Society v.

Aquino, et. al.1 comprehensively discoursed the basic
precept of Corporate powers exercised through board of
directors, thus:

Section 23, in relation to Sec. 25 of the

Corporation Code, clearly enunciates that
all corporate powers are exercised, all
business conducted, and all properties
controlled by the board of directors. A
corporation has a separate and distinct
personality from its directors and officers
and can only exercise its corporate
powers through the board of directors.
Thus, it is clear that an individual
corporate officer cannot solely exercise
any corporate power pertaining to the
corporation without authority from the
board of directors. Absent the said board
resolution, a petition may not be given
1
G. R. No. 206617, 30 January 2017.

3
 due course. The application of the rules
must be the general rule, and the
suspension or even mere relaxation of its
application, is the exception. This Court
may go beyond the strict application of
the rules only on exceptional cases when
there is truly substantial compliance with
the rule.

11. Applying the foregoing to the instant case, since plaintiff

is a corporation, the complaint filed with the Honorable
Court must be executed by one who is duly authorized by a
resolution of the board of directors; otherwise, the
complaint will have to be dismissed. Courts are not, after
all, expected to take judicial notice of corporate board
resolutions or a corporate officers' authority to represent a
corporation. Plaintiff's failure to submit proof that Mr.
Miguel E. Umali has been authorized by Philippine National
Construction Corporation to file the complaint is a sufficient
ground for the dismissal thereof.

12. The complaint is filed for and in behalf of the plaintiff

who is not authorized to do so, the complaint is not deemed
filed. An unauthorized complaint does not produce any legal
effect. Hence, the court should dismiss the complaint on the
ground that it has no jurisdiction over the complaint and
the plaintiff. Accordingly, since Mr. Umali was not duly
authorized by the Corporation to file the complaint, the
complaint is considered not filed and ineffectual, and, as a
necessary consequence, is dismissable due to lack of
jurisdiction.

13. Indeed, there was no proof submitted that Mr. Umali was
duly authorized by the plaintiff to file the complaint. If
courts will allow a complaint filed in behalf of a corporation
sans any approval of the board of directors, it will be
subject to abuse by anyone to file in behalf of the
corporation. As a consequence, it opens itself to a
counterclaim notwithstanding the lack of authority
of the corporate officer to commence the suit.

14. While a Secretary Certificate dated March 2019 of a

Board Resolution held on August 29, 2013 was attached in
the complaint, authorizes the unnamed President and CEO
to sign any and all verification and certification but without
a mention of authority to file specifically an unlawful
detainer case with damages for and on behalf of the plaintiff
as a corporation against herein defendant. Noteworthy to
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 mention, on its letter denying the request for extension
dated 22 February 2018 and Notice to Vacate dated 26
April 2018 was signed by its President and CEO, kenchu
Kumar and not by its President Pepe E. Uki.

15. In the case of Perkin Elmer Singapore Pte. Ltd. v.

Dakila Trading Corporation2. To wit:

Jurisdiction is the power with which

courts are invested for administering
justice; that is, for hearing and deciding
cases. In order for the court to have
authority to dispose of the case on the
merits, it must acquire jurisdiction over
the subject matter and the parties.
Courts acquire jurisdiction over the
plaintiffs upon the filing of the complaint,
and to be bound by a decision, a party
should first be subjected to the court's
jurisdiction

16. In the case of Figueroa v. People3, where the Supreme

Court held:

Since the court has no jurisdiction over

the complaint and respondent, petitioner
is not estopped from challenging the trial
court's jurisdiction, even at the pre-trial
stage of the proceedings. This is so
because the issue of jurisdiction may be
raised at any stage of the proceedings,
even on appeal, and is not lost by waiver
or by estoppel.

17. Clearly, since no valid complaint was ever filed with the
uioMeTC, Branch 1146, Bagy City, the same did not acquire
jurisdiction over the complaint and over the person of the
Plaintiff.

18. “Procedural rules are not to be disdained as mere

technicalities that may be ignored at will to suit the
convenience of a party. Adjective law is important in
ensuring the effective enforcement of substantive rights
through the orderly and speedy administration of justice.
These rules are not intended to hamper litigants or

2
G.R. No. 172242, August 14, 2007
3 G.R. No. 147406, July 14, 2008

5
 complicate litigation but, indeed to provide for a system
under which a suitor may be heard in the correct form and
manner and at the prescribed time in a peaceful
confrontation before a judge whose authority they
acknowledge”4.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed

that judgment be rendered, DISMISSING the case for lack of
jurisdiction over the Complaint and over the person of the Plaintiff.

Manila for Pasay City, Metro Manila

June 3, 2019

BIGBOY AND ASSOCIATES

LAW OFFICE
Counsel for the Defendant Pekpek Distribution.
Ground Floor, UKI. Building
29 norlinos Street corner Maria Clara Street
Sta. Miguel, Manila

By:

GONGOND G. KURIMAW
Roll No. 33461
IBP-LIFETIME No. 00065/1-31-2001
PTR No. 8072/1-14-2019/Manila
MCLE Compliance Cert. No. VI-0010005
Certificate Issued on October 9, 2018
Tel. No. 0917620000
[email protected]

4
Bank of the Philippine Islands v. Court of Appeals, et al., 646 Phil. 617, 627 (2010)

6
 NOTICE OF HEARING

The Branch Clerk

Metropolitan Trial Court
Branch 46
Pasay City

Office of the okI

Corporate Counsel
Atty. Fraf lslsl msmma
Counsel for Plaintiff
8th Floor, WSS Bldg., Kayu Road, Balara, Quezon City

Greetings:

Please include in your calendar for hearing the foregoing

Motion To Dismiss on June 4, 2012 at 8:30 o’clock in the
morning for the kind consideration of the Honorable Court

BOMMNN G. NEMI CAIIIIUDDIN A. POJI

Copy furnished:

By LBC EXPRESS

Office of the Government

LOPE
Atty. ElpHUE J. HEME
Counsel for Plaintiff

7
5TH Floor, WSS Bldg., HIE Road, MEara, Quezon City

EXPLANATION AS TO MODE OF SERVICE

Copy of this Motion To Dismiss is being served to counsel for

plaintiff as its/his given address through LBC Express, a private
courier for expediency and lack of material time to effect personal
service.

JSJEN G. CJEJEJ KEKKEUDDIN U. HEHEL