Atilla Arkin vs. Frankwell Enterprises Ltd., et al.

[SEC CASE NO. 3024. October 28, 1987.] ATILLA ARKIN , complainant , vs . FRANKWELL ENTERPRISES LTD., ET AL. , respondents . O R D E R This treats of the Urgent Second Motion For Reconsideration filed by counsel for respondents on September 17, 1987, alleging among other things, that their urgent motion for reconsideration was duly accompanied by an Affidavit of Merit executed by the witness, Joy C.Y. Fong, which extensively and truthfully outlined the reason for his failure to testify in the July 16, 1987, 2:00 o'clock in the afternoon hearing, and which precipitated the Honorable Hearing Officer's July 16, 1987 Order, declaring herein respondents' right to further present evidence waived; and that respondents have a good and valid defense which could only be fully ventilated with the presentation of Mr. Fong or any other witness or witnesses. TCDHaE By way of opposition thereto, complainant through counsel, contended, inter alia, that respondents' two (2) paged Second Motion for Reconsideration was patently pro forma pleading raising identical issues, earlier contained in respondents' urgent motion for reconsideration; that respondents' counsel positively made a waiver commitment when he publicly declared several times that he would waive his presentment of evidence of his last witness, Mr. Fong would not appear on the scheduled hearing; and, that as may be observed by this Honorable Office, his waiver commitment was clear, unwavering and direct. CAScIH Upon thorough consideration of respondents' instant second motion for reconsideration, complainant's opposition thereto as well as, the records of the case at hand, the Commission resolves to deny said second motion for reconsideration. The records would show that respondents' counsel failed to appear during the July 16, 1987 hearing. Said counsel did not even bother to file his motion for postponement, if indeed, he had a valid ground for cancelling said proceedings. The minutes of the proceedings would further show that nobody appeared at any hour of the July 16, 1987 hearing, to represent respondents, otherwise, respondents' counsel should have at the least requested to sign the minutes of the proceedings of said July 16, 1987 hearing, indicating the hour he arrived, if truly he had reached the Commission at the late hour of the afternoon. aDECHI Likewise, the records of the case would reveal that respondents on several occasions requested for postponements of the scheduled hearings and the Commission gave due course to the same, despite vigorous objections on the part of the complainant's counsel. Verily, prior to July 16, 1987 hearing, the Commission at one instance declared respondents to have waived their right to present said witness, Cecille Pineda for their failure to present said witness, who was absent, despite due notice. However, upon filing of respondents' motion for reconsideration, the Commission allowed them to present their witness, Cecille Pineda. Again, respondents' counsel undertook to present as his last witness Joy C.Y. Fong. In this regard, a previously scheduled hearing was cancelled and another one particularly on July 16, 1987 was set just to afford respondents' counsel to present witness Joy C.Y. Fong. However, despite such assurances and commitment made by respondents' counsel, on July 16, 1987 scheduled hearing, both counsel for respondents and witness C.Y. Fong failed to appear despite notice. This prompted the commission to declare respondents to have waived their right to further present their evidence. CADacT To reiterate, respondents had time and again been given the opportunity to present their witnesses but despite the liberality afforded them and the commitment made by their counsel, they failed to appear on July 16, 1987 hearing despite notice and without filing appropriate motion for postponement of said hearing. Rather, he allowed the proceedings to continue and after getting adverse ruling, he chose to file written motion for reconsideration. Based on the above findings, the Commission, thus, believes that respondents' second motion for reconsideration has without basis. STcADa WHEREFORE, respondents are hereby ordered to file their formal offer of exhibits within five (5) days from receipt of this Order; and a similar period of five (5) days from receipt thereof, for petitioner to file his comment/objection thereto. Both parties, after receipt of the ruling of the Commission on respondents formal offer, shall have five (5) days within which to file their memoranda, simultaneously, after which the case would be deemed submitted for decision. SO ORDERED. DHESca (SGD.) ANTERO F. L. VILLAFLOR, JR. Hearing Officer