Abril v. Benzon

[SEC-SICD * CASE NO. 12-93-4637. December 14, 1994.] AMANCIO C. ABRIL, ET AL. , petitioners , vs . FIDELINO BENZON, ET AL. , respondents . D E C I S I O N This is a petition for the annulment of the 27 November 1993 annual election; annulment of Board Resolution No. 14-024-93 requiring the payment of Convention Fees as a condition precedent before a member can exercise his right to vote and to pay petitioners moral and exemplary damages and attorney's fees. LLphil Petitioners alleged, among others, that they are members of the Real Estate Brokers Association of the Philippines, Inc. (REBAP, for short); that on November 27, 1993, the annual election of REBAP directors was held in Olongapo City; that because of the imposition of an additional requirement-payment of P1,750.00 as embodied in Memorandum Circular No. CM 14-010-93 before a member can vote in the aforesaid election many of the qualified members were disenfranchised; that under the Amended By-laws of REBAP the only requirement before a member can vote is that he or she must be a real estate broker and must be a member of good standing; that the Amended By-laws does not provide any procedure for the annulment of an election on the basis of disenfranchisement; and that members who refuse and are unable to pay the convention fee will continue to be denied the right to vote. In their answer, respondents denied the material averments of the petition and interposed the following, to wit: That the Commission has no jurisdiction over the case because the petitioner have not exhausted all local and administrative remedies available, none of the petitioners, specially those present in the election filed any protest or complaint in accordance with the COMELEC rules; that the petitioners except Dennis Galicia and Ellen Garcia who belong to the Angeles Chapter are not members of good standing because they have not paid their annual dues for 1990, 1991, and 1992, and therefore, are not entitled to vote and be voted upon; that the National Board of Directors, in consultation with the Chapter Presidents, discussed the matter of convention fee, and it was agreed that a convention fee of P1,750.00 must be imposed to ensure the orderly conduct of the convention and election; and that with regard to petitioners Dennis Galicia, Ellen Garcia and Antonio Parali, they are estopped from questioning the result of the election because they participated and Galicia and Garcia were even candidates in said election. In the pre-trial conference on October 25, 1994, only petitioners Wilfredo Tan, Amancio Abril and Ellen Garcia appeared. Petitioners Aurelio Tapang, Josefina Henson, Jose Fajardo, Mr. Luviano Bisig, Jr., Pablito Feliciano, Cresencio Galang, Jose del Rosario, Illuminada Tayag, Mark Lumanlan, Antonio Parali, Bienvenido Mercado, Sylvia Antonio, Alicia Narciso and Dennis Galicia failed to appear despite notice, hence, they were non-suited. On the other hand, only respondents Policarpio Alberto and Jesus Birosel appeared. The other respondents, for their failure to appear despite notice on said pre-trial conference, were declared as in default. When the pre-trial conference was terminated, the parties, through their counsels, agreed that they will just submit their respective memoranda, after which, the case is deemed submitted for decision. dctai Petitioners submitted their memorandum on November 11, 1994 while respondents have submitted the same only on December 1, 1994, which was already beyond the period agreed by the parties. The issues involved in this case are as follows: 1. Whether or not the petitioners herein are members in good standing of REBAP at the time of the 27 November election of directors which would entitle them to vote during the election; 2. Whether or not the imposition of the convention fee of P1,750.00 before a member can exercise his right to vote is a violation of member's right to vote; and 3. Whether or not respondents are liable for damages being claimed by petitioners. Petitioners are licensed real estate brokers and they paid their membership dues for 1993 evidenced by PCI Bank, Angeles City Branch, Check No. 051024953A dated 28 September 1993 paid to the order of REBAP National in the amount of P8,400.00 (Petitioners' Pre-Trial Brief) which represents the amount of P400.00 membership due from each of the twenty one (21) Angeles City members as of 1993. The list of the Angeles City members and the check were accepted by REBAP National during the 29 September 1993 General Membership meeting held at the Club Filipino, Greenhills, San Juan, Metro Manila, without any condition or qualification. On the allegation of the respondent incumbent board that the membership dues for 1993 has been increased from (400.00 to P600.00, the resolution of the said board authorizing the increase did not have the ratification of the two-thirds (2/3) vote of the general membership. Clearly, an increase in the membership dues is an amendment of the existing By-Laws of REBAP since Article VIII, Section 2.A expressly provides that "regular members shall contribute an annual membership due of four hundred (P400.00) pesos . . . ." The amendment of the By-Laws should likewise be approved by the Securities and Exchange Commission (SEC). This, the respondent incumbent board has failed to do. During the 29 September 1994 General membership meeting, Mr. Conrad Garcia, a member of the Pampanga Chapter and a past national President of the Angeles City Chapter members appealed to the respondent incumbent board to accept their 1993 membership dues and condone their 1990-1992 past dues for the reason that they were affected by the eruption of Mt. Pinatubo. This was admitted by respondent Policarpio Alberto during his cross-examination (TSN, 17 January 1994, pp. 10-11). The respondent incumbent board decided to accept their 1993 membership dues without demanding that they first pay their past dues. And, therefore, the petitioners are considered to have paid not only their 1993 membership dues but also the dues corresponding to 1990-1992. Article 1235 of the New Civil Code will find application in the present case. It provides: "When the obligee accepts the performance, knowing its incompleteness or irregularity, and without expressing any protest or objection, the obligation is deemed fully complied with." The respondent incumbent board allowed four (4) members from Angeles City Chapter to vote only upon their payment of the P1,750.00 convention fee. Amelia V. Lao, Felix Loy Lao, Atty. Ernesto Dintalig and Antonio Paroli were able to vote when they only paid P400.00 membership dues for 1993 and they never paid their 1990-1992 past dues. These four (4) members were in the same position as the petitioners before opting to pay the convention fee to be able to vote. The petitioners, had they been able and willing to pay the convention fee of P1,750.00 could have voted too, in the same manner that their co-four (4) members were allowed to vote. However, the petitioners chose not to as a sign of protest to the unreasonable P1,750.00 convention fee; the imposition of the same is unauthorized if not illegal. A REBAP member who might not even chose to avail of the hotel accommodation will have to pay the whole amount just to be able to vote. What could have been done was to give the breakdown of P1,750.00 and give the member the option whether to stay at the SBMA or not. A lump sum of P1,750.00 is not an easy amount to raise especially for the petitioners who were victimized by the eruption of Mt. Pinatubo. The violation of the petitioners right consists in the imposition of the convention fee of P1,750.00 by reason of said imposition, the petitioners and many REBAP members were disenfranchised. Whether the reason for failure to vote is because of refusal or inability to pay the amount of P1,750.00 is immaterial. What remains undisputed is that such imposition amounted to a properly qualification before a member can exercise his right to vote. The immediate effect of this imposition is that the right of a REBAP member became dependent upon his wealth which, accidentally or intentionally, disenfranchised a member of regular members who refused or could not afford the P1,750.00 convention fee. There is no question that the respondent incumbent board can pass a resolution or impose a convention fee in any amount it may please. But it can not be used or made use as a condition precedent before any member can vote because this will be in violation of the By-laws which only require that before a member can vote, he or she must be a duly licensed real estate broker who is qualified and accepted and is a member of good standing. That petitioners are not members of REBAP in good standing because they failed to pay their membership dues for year 1990-1992 cannot hold water. Firstly, they accepted the membership dues of petitioners for the 1993 without any qualification and condition; and secondly, they allowed four (4) members of the Angeles City Chapter who only paid for their 1993 membership, meaning they are similarly situated as herein petitioners, but were allowed to vote because they opted to pay the convention fee. Respondents, therefore, cannot now claim and/or are estopped in alleging that petitioners are not members in good standing. As to the claim of respondents that petitioners failed or did not pay the additional P200.00 membership due, this cannot be done because this is again in violation of the By-laws which specifically require only the payment of P400.00 membership due. As correctly pointed out by petitioners, the same needs the 2/3 votes of all the membership of REBAP and the corresponding amendment to the By-laws be made. WHEREFORE, judgment is hereby rendered annulling Board Resolution No. 14-024-93 requiring the payment of convention fees as a condition precedent before a member can exercise his right to vote; ordering an election of the members of the board be called in accordance with the By-Laws; and annulling the additional P200.00 membership dues which is in violation of the By-laws. There being no evidence to substantiate petitioners' claim for damages, the same is hereby DISMISSED. SO ORDERED. (SGD.) MACARIO P. MALLARI Hearing Officer