Mr. Farid S.K. Nassr

August 6, 1984 Mr. Farid S.K. Nassr Director, 2nd Vice President Manila Polo Club McKinley Road, Forbes Park Makati, Metro Manila Sir : This has reference to your letter dated July 30, 1984, requesting for the opinion of this Commission on the query posed therein. cdlex It appears therein that the forthcoming election of directors of the Manila Polo Club, Inc. is scheduled on August 27, 1984. The point at issue centers on the provision of Section 6 of Article V of the Amended By-Laws of the Club as applied to the Special Power of Attorney prepared and circulated to the members by a group of candidates in the election. You opine that there are two salient points required by the provision of said Sec. 6 for a proxy instrument to be valid, namely: 1) It shall contain the names of the qualified nominees for directors. 2) The member must indicate his choice from among the list of nominees by affixing his signature. It likewise appears therein that a group vying for membership in the Board of Directors has circulated a document entitled "Special Power of Attorney" containing the names of only eight (8) candidates/nominees for directors when actually there are fifteen (15) candidates/nominees for directors out of which nine (9) are to be elected. Moreover, the said document designates a person (Antonio G. Cumagun) as his proxy, not as an Attorney-in-Fact. You contend that said document is invalid and defective inasmuch as the same does not contain the names of the qualified nominees for Directors wherein the member must indicate his choice, as required by said Sec. 6. You now request for the opinion of this Commission on the validity of the said Special Power of Attorney in the list of our opinion dated August 18, 1983. As a matter of policy, this Commission refrains from giving its opinion on hypothetical cases. However, for purposes of general information only, the following observations pertinent to your query may be given. Section 47 of the Corporation Code provides, and we quote: "SECTION 47. Contents of By-Laws . Subject to the provision of the Constitution, this Code, other special laws, and the articles of incorporation, a private corporation may provide in its by-laws for: xxx xxx xxx 4. The form for proxies of stockholders and members and the manner of voting them;" From the foregoing, it is clear that a corporation can include in its by-laws provision on the form for proxies of members and the manner of voting them. In your case, Sec. 6 of Article V of your Amended By-Laws would be controlling insofar as it provides for the form for proxies and the manner of voting them. The pertinent provision of said Sec. 6 is hereunder quoted: "SECTION 6. Manner of Voting . Voting members shall be entitled to one vote in person or by proxy appointed in writing by the member himself or his duly empowered attorney. The proxy instrument for the annual meeting of members at which the directors are to be elected, shall contain the names of the qualified nominees for directors, in accordance with Section 4, Article IV of this By-Laws. The members must indicate his choice from among the list of nominees by affixing his signature after each of the names of the nominees of his choice on the proxy instrument. ..." The aforequoted provision requires that the proxy instrument shall contain the names of the qualified nominees for Directors, which shall not be less than twelve nor more than fifteen candidates pursuant to Sec. 4 of Article IV of said By-Laws. LibLex The Special Power of Attorney which contains the names of only eight (8) candidates for directors when actually there are fifteen (15) candidates/nominees for directors is therefore defective as a proxy instrument. It must be noted that our opinion dated August 18, 1983, on the query as to whether or not the Special Power of Attorney quoted therein is sufficient for the purpose of meeting the requirement of the By-Laws was based on said Sec. 6 insofar as substantial compliance with the said provision is concerned and on the basis of a sample Power of Attorney which merely provided blank spaces in lieu of the names of the nominees. This Commission, in such case, would have no legal basis in determining compliance with Sec. 4 of Article IV of your by-laws. Please be advised accordingly. Very truly yours, (SGD.) MANUEL G. ABELLO Chairman