Thunder International, Incorporated, et al. vs. Lixiao Jiao, et al.

[SEC-SICD * CASE NO. 03-97-5593. September 10, 1997.] IN THE MATTER OF CALLING FOR AN SEC SUPERVISED STOCKHOLDERS' MEETING AND ELECTION OF DIRECTORS OF CHINA CHIANG JIANG ENERGY CORPORATION PHILS. THUNDER INTERNATIONAL, INCORPORATED, represented by Jose A. Bernas and HERMAN HO , petitioners , vs .LIXIAO JIAO, JESSE D. ALTO, CHAN BUN PEN, ZHIAN YU, LU FU WU, WANG SHU CHUN, XIE SHOU GUO, in their capacity as stockholders and/or members of the Board of Directors SANTIAGO GABIONZA and MA. RITA BONIFACIO in their capacity as corporate secretary and assistant corporate secretary of the Corporation , respondents . O R D E R This resolves the Motion to Dismiss filed by respondents Jesse D. Alto, Chan Bun Pen, Santiago T. Gabionza, Jr. and Maria Rita R. Bonifacio dated 28 April 1997, on the ground that a) the petition has been rendered moot and academic b) for lack of jurisdiction and/or lack of cause of action c) for failure to exhaust intra-corporate remedies d) for lack of personality to sue and e) forum shopping. Petitioners filed their Opposition dated May 21, 1997, refuting therein the grounds relied upon by the movants and on June 4, 1997 movants filed their Reply thereto. This Petition should indeed be dismissed because of forum shopping. The test for determining whether a party violated the rule against forum shopping has been laid down in Buan vs. Lopez, G.R. No. L-75349, October 13, 1986 and that is forum shopping exists where the elements of "litis pendencia" are present or where a final judgment in one case will amount to res judicata in the other, as: "There thus exists between the action(s) ...identity of parties, or at least such parties as represent(ing) the same interests in both actions, as well as identity of rights asserted and relief prayed for, the relief being founded on the same facts and the identity on the two preceding particulars is such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration; all the requisites, in fine, of auter action pendant." Judicial notice may be taken on the fact that SEC Case No. 05-96-5355 is a case under Section 50 of the Corporation Code wherein petitioners therein, who are the same as the petitioners in this instant case, are obviously calling for a stockholders' meeting in order to elect the members of the board of directors and officers of China Chang Jiang Energy Corporation Phils. This is also the main prayer in this case and that any judgment that may be rendered in any of these two (2) cases would constitute res judicata in the other. This Hearing Officer finds it unnecessary to resolve the other grounds as the herein above discussed ground is enough reason to dismiss this case. WHEREFORE, premises considered, the Motion to Dismiss is hereby GRANTED. LexLib SO ORDERED. (SGD.) MANOLITO S. SOLLER Hearing Officer