Romero D. Dalusong vs. Hernando G. Imperial

[SEC-SICD * CASE NO. 3294. March 2, 1990.] ROMERO D. DALUSONG , petitioner , vs . HERNANDO G. IMPERIAL , respondent . D E C I S I O N This is a petition initiated by Romeo Dalusong which, as culled in its allegations, prayed for the dissolution, liquidation of the assets and winding up of the affairs of K - Services Company, a partnership duly registered with this Commission. In filing this petition, petitioner invoked the provisions of Section (3) of P.D. 902-A, as amended, giving this Commission the absolute jurisdiction, supervision and control over all corporations, partnerships or associations. cdll Petitioner, in his petition, alleged inter alia, that in the light of the financial difficulties then being suffered by the partnership following the EDSA Revolution, he opted to sacrifice by voluntarily deferring drawing his salaries, allowances and bonuses beginning in the early months of 1985 up to and including the year 1986, which benefits as claimed by petitioner, amounted to about P600,000.00; that in the midst of such crisis, he claims that the respondent offered to purchase his entire rights, interests, titles and participation in the partnership. To such an offer, the petitioner alleged that he agreed, subject however to the following qualifications: (1) the consideration shall be determined and fixed only after examining the partnership books of account, including its receivables and accounts payable, as well as the goodwill and other assets of the partnership; and (2) while the foregoing examination and/or audit is in progress, petitioner shall continue to be and remain a partner. Thus, under this alleged agreement, petitioner shall cease to be a partner only upon respondent's payment of the consideration to be mutually agreed upon, as well as the petitioner's accrued salaries, allowances and bonuses. Pursuant to the foregoing agreement, petitioner claims to have signed a blank Deed of Assignment assigning entirely, all his rights and interests in the partnership. Meanwhile, petitioner avers that without his knowing it, during the period of negotiation of their respective offers and counter offers, the partnership started to recoup its losses, collected its receivables and renewed some of its contracts. Petitioner further states, that after having signed the Deed of Assignment, he reminded the respondent of their agreement regarding the payment of its consideration, and petitioner's accrued salaries, allowances and bonuses. The respondent refused to heed his demands. Hence, the petition. Respondent, in his answer, denied the material allegations of the petition and averred, among other things; that at or about the middle of the year 1986, when the partnership was experiencing its worst financial difficulties, it was the petitioner who brought up the proposition and has since then, been insisting that the partnership be dissolved; that the eagerness of the petitioner to dissolve the partnership was apparently due to his fear that he might be rendered personally liable for partnership obligations in the event of a financial loss, due to his unlimited liability as a general partner; that time and again, he would reason with his partner, the petitioner, that the firm was still very much viable and remains a worthwhile undertaking with a good chance of recovery, if only hard work is imparted by the partners; that because of petitioner's insistence to get out of the partnership, respondent alleges that he convinced his son, Rodney Imperial, to buy the shares/interest of the petitioner in the partnership; that after a series of negotiations between the petitioner, Rodney Imperial and the respondent, a Deed of Assignment consisting of three (3) pages dated December 3, 1987, was executed whereby petitioner transferred and assigned his full share in the partnership in favor of Rodney Imperial for and in consideration of the sum of P80,000.00; that thereafter, the Articles of Partnership was accordingly amended, to reflect the transfer of interest of the petitioner to Rodney Imperial as the new partner in the partnership; and that having ceased to be a partner in the K - Services Company, petitioner has no more right to inspect the partnership books of account, much less to seek its dissolution and liquidation. On the basis of the pleadings filed by the parties and the evidence, both documentary and testimonial, adduced during the trial of this case on the merits, as well as the records of the partnership on file with the Commission, the following undisputed facts were established. Petitioner Dalusong and Respondent Imperial are general partners in the firm, K - Services Company, a partnership duly registered with this Commission and engaged in the general maintenance, janitorial and porterage services. The initial capitalization of K - Services Co. was 150,000.00 of which the parties contributed in cash as follows: Hernando Imperial P100,000.00 Romeo D. Dalusong 50,000.00 Total P150,000.00 After several years of operation starting in 1975, the partnership's janitorial services grew to become a profitable business concern. Among the biggest accounts (clientele) of the partnership were government agencies, like the Government Service Insurance System (GSIS), Manila International Airport (MIA), the Domestic Airport and the National Economic and Development Authority (NEDA). Later, the petitioner and respondent, as partners of K - Services Company, likewise decided to diversify operations, to include the deployment of overseas workers to Middle East countries. However, beginning 1983, the partners slowly started encountering some signs of financial reverses, becoming worse by 1986, immediately after the EDSA Revolution, which catapulted into office a new government under President Corazon C. Aquino. With the resulting change of the heads of office of the different government agencies, the partnership began losing several of its major clients, and found difficulties in collecting its receivables from the others. With the position taken by respondent Imperial, to the effect the petitioner Dalusong no longer possesses any right or prerogative to demand dissolution and liquidation of the affairs of the partnership, since petitioner had already transferred and assigned all his entire interest and/or shall thereat to Rodney Imperial, by virtue of a 3-page Deed of Assignment date December 3, 1987, and petitioner's claim that while he may have signed the third page of the said Deed of Assignment, his alleged signatures on the margins of page 1 and 2 thereof are forgeries, the only logical issue which needs resolution is the genuineness and due execution of the aforesaid 3 page Deed of Assignment. The resulting conclusion, should the signatures on the first two (2) pages of the Deed of Assignment turn out to be forgeries, the petitioner still remains to be a partner of K - Services Company and as such, would be entitled to the prayers sought in his petition. On the other hand, if the same are genuine and authentic signatures of petitioner, then he shall be bound by all the specific terms, condition and stipulations therein, which effectively transferred, ceded and assigned all his shares in the partnership, to Rodney Imperial. Petitioner, therefore, no longer possess any right or prerogative, to seek the dissolution of K - Services Company. Hence, dismissal of the petition would be the necessary consequence. In support of his case, petitioner presented only one witness himself. Petitioner testified that the Deed of Assignment in question, particularly pages 1 and 2 thereof, is spurious. He claims that only his signature on page three (3) is genuine while those appearing on the left margin of pages one (1) and two (2) are both forgeries. Petitioner also declared that he could not have signed the Deed of Assignment dated December 3, 1987 on said date, because at that time he was at the office of the Securities and Exchange Commission where he secured the certified Xerox copy of the Articles of Incorporation of K - Services Co., after which, at around 2:00 P.M., he went straight to the office of his counsel Atty. Cabaltera (TSN, page 5, November 28, 1988). However, no evidence was adduced to establish his presence at this Commission and Atty. Cabaltera was never presented as witness in this case to corroborate the other fact, his presence in Atty. Cabaltera's office. On the other hand, the respondent called to the witness stand, two (2) witnesses: 1. Alex Aquisa, who testified that he was one of the witnesses to the execution and signing of the Deed of Assignment in question. He categorically stated that he saw the petitioner affixing his signature on all the pages of the document in question. LLjur 2. Cristeta Casilao, who was presented as an expert in handwriting and who testified that the signature of the petitioner, Atty. Romeo Dalusong appearing on the Deed of Assignment in question were all genuine as contained in her final report, which was submitted and marked as Exhibit "21". Aside from these two witnesses, it was established that three (3) other persons who were parties to the execution of the Deed of Assignment, and who executed a sworn statement relative to a perjury case filed by the petitioner against Alex Aquisa in the Office of the Provincial Prosecutor in Pasig, Metro Manila. That these three (3) persons attested to the fact that petitioner signed all the pages of the Deed of Assignment, when he was in the office of the respondent in the afternoon of December 3, 1987.(TSN, pages 18 to 20, November 28, 1988). By sheer preponderance of evidence alone, this Commission is inclined to sustain the stand taken by the respondent. And while it may be true that the number of witnesses alone should not by itself determine the weight of evidence, in case of conflicting testimonies of witnesses however, the numerical factor may be given substantial weight (Caluna vs. Vicente, C.A.-G.R. No. 3911-R, February 17, 1951; Lirios vs. Lirios, C.A.-G.R. No. 19610-R, December 22, 1961). More importantly, in the law on evidence, a significant distinction exist between positive evidence and a negative one. The importance of this distinction lies in the legal principle that positive testimony is entitled to be afforded greater weight (2 Regalado, Remedial Law, 261). Applying the foregoing to the present case, in weighing the contradictory declarations and statements, greater weight must be given to the positive testimony of the respondent's witnesses that the petitioner did in fact sign all the pages of the Deed of Assignment in question, as against the self-serving denial of petitioner Atty. Dalusong. It is also important to take note that Atty. Cabaltera, who was actually the counsel on record of the petitioner, could have readily, positively and categorically confirmed the allegations of Atty. Dalusong, and yet he never took the witness stand to make such corroboration, and because of the non-production of Atty. Cabaltera, the testimony of the petitioner had suffered further. As enunciated in the case of People vs. Abonales, G.R. No. L-12152, September 22, 1959 (60 O.G. 179), the failure to produce a material and corroborative witness, without any legitimate explanation being given why he was not so produced, considerably weakens the testimony of the witness, who named the corroborating witness in his testimony. Respondent's evidence, on the other hand, finds strength on the straight-forward testimony of an actual eye-witness to the execution and signing, by petitioner, of all the pages of the Deed of Assignment in question. Witness Alex Aquisa was most positive in his declaration about the petitioner affixing his signatures on the margins of page 1 and 2 thereof, as he, himself was present and a signing witness to the same document. And witness Aquisa's testimony is ably supported by the second witness for the respondent the expert witness in the person of Cristeta Casilao. As to the probative value of the testimony of Cristeta Casilao and her conclusions as contained in her report (Exhibit "21"), we find no cogent reason not to give substantial weights to the testimony of Mrs. Casilao. Especially so in this case where her findings stands unrebutted. It must be noted that petitioner have manifested before the Commission that he was going to present his own expert in handwriting, to rebut Casilao's testimony No such rebuttal witness was ever presented. And no reason was given We also considered the very impressive credentials of Mrs. Casilao (Exhibit "18"), where it is shown that she boasts of over 39 years of continuous service at the P.C. Crime Laboratory, retiring therefrom on September 30, 1985, as Chief of the Criminalistics. (TSN, pages 7-8, February 9, 1989) Her credentials would also reveal that she had extensive training in handwriting examination. (Exhibit "18" and TSN, pages 9 to 11, February 9, 1989) Mrs. Casilao, likewise, testified that she has attended about 500 to 600 cases not only before the various courts of justice, but even hearings before Military Tribunals, as well. Also established, is the fact that Mrs. Casilao, in the course of the exercise of her profession had received a good number of citation from the courts of all levels and from the various military establishments. (TSN, pages 12-13, February 9, 1989) While on the witness stand, Mrs. Casilao testified that the questioned signatures of the petitioner (denied by petitioner as his), (Exhibit "1-B", "2-B" and the signatures appearing on Exhibit "4" and "5") are all genuine; predicating her findings on technical comparisons made on petitioner's admitted authentic signatures. All in all, the expert witness used fourteen (14) standard (admitted authentic) signatures (Exhibits "6", "7", "8", "9", "10", "11", "12", "13", "14", "15", "16", "17", and "20"). Mrs. Casilao, likewise, testified that antecedent to the preparation of her final report (Exhibit "21"), she thoroughly conducted a detailed technical examination, consisting of three (3) stages, namely: (1) a preliminary analysis of the questioned signatures and specimen (standard) signatures of petitioner referring to the analysis, interpretation and determination of valid constituents found in both the questioned and the specimen signatures; (2) a photographic comparative examination of the same questioned and standard signatures, to find out in a magnified scale, the specific hidden qualities and features that may be prominent in the questioned and specimen signatures; and (3) the confirmatory examination of the common and uncommon characteristics found during the photo-micrographic comparison to determine their individual values and genuineness or authenticity (TSN, page 23, February 9, 1989) To prove the extensive examination conducted by expert witness Cristeta Casilao, the respondent submitted Exhibits "22" to "25", inclusive, containing the enlarged and blow-up photographs of both the questioned and the standard signatures of the petitioner. After conducting such examination, Mrs. Casilao declared that: ". . . After a thorough analysis, interpretation and evaluation of the values of this mentioned characteristics which are the basis for the handwriting analysis, we found out that they contain inconspicuous characteristics present in both, namely: the style of writing per pressure, the manner and continuity of the strokes, the alignment, speed, the proportion, the rhythm found in all of these signatures which prove that there is a free and careless indifferent attitude of writing which call careless abandon and indifference and individual caprice with no significant dissimilarities, all indicative of genuineness, I concluded that those writings or signatures were made by the same person". LLphil Over and above the foregoing consideration, it must be stated here that the theory espoused by the petitioner as borne out by the evidence adduced in his behalf, is rather difficult to sustain. Unlike the position of the respondent, petitioner's version of the controversy appears to be "in conflict with the experience of common life and of the ordinary instincts and promptings of human nature". (Champagne Vs. Ilamey, 1889 Mo. 709, S.W. 92; cited in Revised Rules of Court Annotated Vicente J. Fransisco, p. 1067) There are three (3) relevant points which would make the above observation, most applicable to the stance by the petitioner. Firstly, is the petitioner's admission that he did in fact sign and execute a blank Deed of Assignment. Such would immediately negate his subsequent claim of forgery. Then, petitioner did not hesitate to accept as genuine and authentic, his signature as contained on page 3 of the questioned Deed of Assignment. And only the signatures on the margins of pages 1 and 2 of the Deed, were disclaimed by petitioner. However, one finds it illogical if not uncommon, for a person especially so, if he is a lawyer, like the herein petitioner, to accede to two material aspects his having signed in blank and his affixing his signature of the third of a 3-page document only to refute and deny his glaringly similar signatures on the first two (2) pages of the same document. Secondly, in the course of evaluation of the evidence adduced, and the arguments in this case, one fact stands out as the most significant. That the alleged "buy-out" of the interests of the petitioner took place in the midst of the partnership suffering from a grave and serious financial crisis. Under such circumstances, it is very unlikely and most illogical and unnatural for one to seek the ouster of his business partner who is supposed to bear with him the burdens and difficulties that the company is encountering. Unless there are other overriding and compelling reasons such as irreconcilable differences of positions/opinions, among the partners, such is definitely not an opportune time to initiate a "buy-out" as impressed by petitioner. Rather, under such prevailing circumstances, a buy-out is normally motivated or occasioned by the desire of a partner to bail out of such a tight financial difficulty, to avoid further assumption of risks. Especially so in this case, where the parties are both general partners and therefore, liable over up to the extent of their own respective personal funds, petitioner Atty. Romeo Dalusong, being a lawyer, should only be well-aware of this. It is worthwhile mentioning that Atty. Dalusong testified that as early as 1983, there were already signs of financial difficulties partly because "of the financial mismanagement of the President and General Manager, Mr. Imperial who has absolute control of the finances of the company". (TSN, page 27, March 10, 1988) And when asked whether he called the attention of Mr. Imperial, herein respondent, regarding such financial mismanagement, Atty. Dalusong testified that initially he did call the respondent's attention regarding the matter but it only led to very serious arguments between them. And in order to avoid such arguments, the petitioner testified that he simply kept quiet just to maintain the harmony "after all I (petitioner) am the minority and he (respondent) is the majority and managing partner". (TSN, page 26, March 10, 1988) Such circumstance would only attest to the fact that petitioner was definitely not very happy with the arrangement in the partnership. From all these facts, it would appear that the intended assignment of petitioner's rights was initiated at the instance of the petitioner himself, contrary to his claim that respondent commenced with the offer to buy-out. Thirdly, when the Amended Articles of Partnership of K - Services Co. was presented to the Securities and Exchange Commission, for the replacement of petitioner by Rodney Imperial as a new partner in the partnership, based on the Deed of Assignment dated December 3, 1987, petitioner did not complain and/or question the said Amended Articles of Partnership, which was approved by the Commission on December 17, 1987. It appears that the questioned Deed of Assignment, which was the basis of the Commission's approval was authentic and genuine. With the foregoing, the petitioner, therefore, was never in such position as to be able to impose onerous conditions for the transfer which he now avers. There is no doubt in our mind that the respondent was determined to continue with the partnership, but considering the precarious financial state that it has, we are not disposed to subscribe to the theory, of the petitioner that the respondent offered to buy petitioner out and agree to (1) pay him such amounts as may be mutually determined depending upon the total assets of the partnership; (2) plus his accrued salaries, allowances, bonuses in the exorbitant amount of P600,000.00 more or less, on top of the amount of P80,000.00 actually paid. Such conditions are just too much given the actual financial status of the partnership at that point in time. On the other hand, I find and so hold that respondent's position is credible. A physical examination of the Deed of Assignment in question show that it is genuine. It does not show any signs of alteration and appears to be complete in all its features when signed by the parties. The claim of the petitioner that the phrase "and other valuable considerations" was omitted is highly improbable. In view of all the foregoing, I am of the opinion, and so hold that the petitioner, having assigned all his rights and interests in the partnership, K - Services Company, has lost all rights thereto, including among other things, the right to seek its dissolution, liquidation of its assets and winding up its affairs. WHEREFORE, the above-entitled case should be, as it is hereby DISMISSED, with prejudice. No pronouncement as to costs and attorney's fees. SO ORDERED. (SGD.) JUANITO B. ALMOSA, JR. Hearing Officer