Guasis v. Imperial

[SEC-SICD * CASE NO. 03-98-5928. January 5, 1999.] PIO GUASIS, ET AL. , petitioner , vs . ROBERTO IMPERIAL , respondent . D E C I S I O N This is a complaint filed by some members of (FISTADA) FIVE STAR TAXI DRIVERS ASSOCIATION, INC., namely, Pio Guasis, Antonio Guasis, Cristino M. Divico, Estelito A. Salanguit and Romeo Sarabia against its incumbent president Roberto Imperial. Complainants allege, among others, that since respondent was elected President no election involving his position was ever held contrary to the By-Laws of the association, which mandates a yearly election; that respondent has been collecting the amount of P5,000.00 as membership/entrance fees without any official receipt being issued and without the knowledge of the Board of Directors and the other officers of the association ; that the respondent has never made a report or an accounting of the amounts collected by him including a daily collection from each member of P50.00 which is supposed to go to the funds of the association plus P10.00 for the salary of the dispatcher, in violation of the By-Laws of the association that the association has a present membership of 53 from whom the aforementioned amounts are being collected; and that respondent has been suspending and/or dismissing members from the association in violation of the By-Laws of the association. cdll For relief, the petitioners pray: that respondent be ordered to schedule an election at the soonest possible time; that respondent be ordered to make a detailed accounting of the funds and finances of the association or that an independent auditor be made to investigate and report therefor the finances of the association; and enjoining respondent from suspending and/or dismissing members of the association. Summons was served on respondent on June 8, 1998, but despite due notice, failed to file any answer to the complaint or controvert the allegations therein. Accordingly, he was declared as in default on August 10, 1998 and the complainants were allowed to present their evidence ex parte. In lieu of oral testimony, the complainants were allowed to submit their affidavits as their direct testimony. The Joint Affidavit of Guasis and Divico was marked as Exhibit "A"; their signatures as Exhibits "A-1" and "A-2", respectively; the second page of the affidavit as Exhibit "A-4"; a copy of a suspension order issued by respondent as Exhibit "A-5"; and a copy of the judgment of conviction of respondent for physical injuries. In said joint affidavit, the affiants alleged, among others: that they are members of FISTADA Taxi Drivers' Association based at the Manila Peninsula Hotel; that the association a present membership of 53; that since they joined (Guasis, 1994; Divico, 1995) the association only two elections were held but only for the Vice-President and other officials excluding the President; that contrary to By-Laws of the association, particularly Article IV thereof, respondent has been suspending and expelling members arbitrarily; that in the recruitment of members only respondent decides who may or may not join; imposing membership fees of P5,000.00 to those who are admitted most often than not remitting the amounts to the Treasurer who is supposed to be in-charge of the association's funds; that despite the clamor for respondent to make an accounting of the funds collected by him including the daily collection from members amounting to P60.00 each, respondent failed to heed such clamor; that respondent's refusal to account for such funds even resulted in a fight wherein some members were injured; that respondent was convicted of physical injuries as a result. Estelito Sanguit, another member of the association, alleged among others: that he is presently the Vice-President of the association having been elected as such in 1996 wherein no election for the presidency was held; that since he joined the association in April, 1995, he knew for a fact that respondent would collect membership dues of no less than P5,000.00 without issuing any receipt therefor and without remitting such amount to the Treasurer; that respondent would arbitrarily mete suspension orders by himself sometimes for indefinite periods; that since he joined the association only two elections were held except for the presidency one in 1995 wherein he was elected Board Member and the other in 1996 where he won his present position as Vice -President. Honorio Ancheta, also a member of the association alleged in brief, among others; that he is a member of FISTADA wherein he was Treasurer between 1991 and 1993 and respondent was already president of the association; that during such period respondent collected the daily collections from members without remitting the collection to him (Ancheta) as Treasurer, that neither did respondent issue any receipts for the amounts collected; that during such time there were already 30 to 40 members of the association; that as far as he can recall respondent failed to remit his collections amounting to P12,000.00, more or less. In the absence of any controverting evidence, the Commission is left with no option but to rule in favor of complainants. From the statement of Honorio Ancheta, respondent, as early as 1991 was already president of the association, which position he holds up to this time. Of the witness for the complainants, except for Honorio Ancheta, they are one in saying that since they joined the association (Guasis being the earliest to join in 1994) the presidency was never subject of an election. A reading of the association's By-Laws (Section 2, Article III) shows that officers of the association are to hold office for one year until their successors are duly elected and qualified. There can only be one implication for this provision and that is an election should be held every year for those holding elective positions. The exception of the presidency from the annual election adverted to constitute a violation of the By-Laws of the association. To prove the claim that respondent sometimes resorted to suspension and/or dismissal of members, complainants submitted in evidence Exhibit "A-5" which is a copy of a suspension order purportedly issued by respondent. Such an order does not indicate the concurrence of any other member contrary to the By-Laws of the association, particularly Article IV, which requires the affirmative vote of 1/3 of all the members of the association to expel such erring member. The arbitrariness of the order is thus established. TIHCcA By far, the most serious of the charges leveled at the respondent is his unauthorized collection of membership fees from incoming members and the daily collections from members and respondent's failure to remit the amounts thus collected. Honorio Ancheta, a treasurer of the association between 1991 and 1993, claims that during his term respondent collected the daily collections from members without issuing any receipt therefor. Neither did respondent remit the amounts collected to him as treasurer. This allegation is further corroborated by the other witnesses who claim that other members of the association clamored for respondent to make an accounting of the funds he collected but without success. WHEREFORE, judgment is hereby rendered as follows: 1. Directing the Board Secretary to call for a membership meeting within thirty (30) days from finality of this decision for the purpose of electing the new board of directors and officers of the FISTADA. 2. Ordering the respondent to render an accounting of all funds collected by him under the supervision of an external auditor acceptable to the complainants and respondent without prejudice to the filing of appropriate criminal charges against respondent; and 3. Enjoining respondent to cease and desist from collecting any dues or fees from the members of the association and from suspending and/or dismissing any member from the association. IaESCH SO ORDERED. (SGD.) SIMEON P. BADILLO, JR. Hearing Officer