FIRST DIVISION
[G.R. No. 130998.
August 10, 2001]
MARUBENI CORPORATION, RYOICHI TANAKA, RYOHEI KIMURA and SHOICHI ONE, petitioners, vs. FELIX LIRAG, respondent.
D E C I S I O N
PARDO, J.:
The case is an appeal via
certiorari to annul and set aside the decision[1] of the Court of Appeals finding petitioners Ryoichi
Tanaka, Ryohei Kimura and Shoichi One, as officers of petitioner Marubeni
Corporation, jointly and severally liable with the corporation for the
commission claimed by respondent Felix Lirag in the amount of six million
(P6,000,000.00) pesos arising from an oral consultancy agreement.
Petitioner Marubeni Corporation
(hereafter, Marubeni) is a foreign corporation organized and existing under the
laws of Japan. It was doing business in
the Philippines through its duly licensed, wholly owned subsidiary, Marubeni
Philippines Corporation. Petitioners
Ryoichi Tanaka, Ryohei Kimura and Shoichi One were officers of Marubeni
assigned to its Philippine branch.[2]
On January 27, 1989, respondent
Felix Lirag filed with the Regional Trial Court, Makati a complaint[3] for specific performance and damages claiming that
petitioners owed him the sum of P6,000,000.00 representing commission pursuant
to an oral consultancy agreement with Marubeni. Lirag claimed that on February
2, 1987, petitioner Ryohei Kimura hired his consultancy group for the purpose
of obtaining government contracts of various projects. Petitioner Kimura authorized him to work on
the following projects: (1) National Telephone Project, (2) Regional
Telecommunications Project; (3) Cargo Handling Equipment; (4) Maritime
Communications; (5) Philippine National Railways Depot; and (6) Bureau of Posts
(Phase II).[4] Petitioners promised to pay him six percent (6%)
consultancy fee based on the total costs of the projects obtained.
The consultancy agreement was not
reduced into writing because of the mutual trust between Marubeni and the Lirag family.[5] Their close business and personal relationship dates
back to 1960, when respondent’s family was engaged in the textile fabric
manufacturing business, in which Marubeni supplied the needed machinery,
equipment, spare parts and raw materials.[6]
In compliance with the agreement,
respondent Lirag made representations with various government officials,
arranged for meetings and conferences, relayed pertinent information as well as
submitted feasibility studies and project proposals, including pertinent
documents required by petitioners. As
petitioners had been impressed with respondent’s performance, six (6) additional
projects were given to his group under the same undertaking.[7]
One of the projects handled by
respondent Lirag, the Bureau of Post project, amounting to P100,000,000.00 was
awarded to the “Marubeni-Sanritsu tandem.”[8] Despite respondent’s repeated formal verbal demands
for payment of the agreed consultancy fee, petitioners did not pay. In response to the first demand letter,
petitioners promised to reply within fifteen (15) days, but they did not do
so.
Pursuant to the consultancy
agreement, respondent claimed a commission of six percent (6%) of the total
contract price, or a total of P6,000,000.00, or in the alternative, that he be paid the same amount by way of
damages or as the reasonable value of the services he rendered to petitioners,
and further claimed twenty percent (20%) of the amount recoverable as
attorney’s fees and the costs of suit.
In their answer, petitioners
denied the consultancy agreement.
Petitioner Ryohei Kimura did not have the authority to enter into such
agreement in behalf of Marubeni. Only
Mr. Morihiko Maruyama, the general manager, upon issuance of a special power of
attorney by the principal office in Tokyo, Japan, could enter into any contract
in behalf of the corporation. Mr.
Maruyama did not discuss with respondent Lirag any of the matters alleged in
the complaint, nor agreed to the payment of commission. Moreover, Marubeni did not participate in
the bidding for the Bureau of Post project, nor benefited from the supposed
project. Thus, petitioners moved for
the dismissal of the complaint.
Petitioner Shoichi One submitted a
separate answer raising similar arguments.
With regard to petitioner Ryohei
Kimura, the trial court did not acquire jurisdiction over his person because he
was recalled to the principal office in Tokyo, Japan before the complaint and the
summons could be served on him.
During the pre-trial conferences
held on September 18 and October 16, 1989 and on January 24, March 15 and May
17, 1990, no amicable settlement was reached.
Trial on the merits ensued.
On April 29, 1993, the trial court
promulgated a decision and ruled that respondent is entitled to a
commission. Respondent was led to
believe that there existed an oral consultancy agreement. Hence, he performed his part of the
agreement and helped petitioners get the project. The dispositive portion of the decision reads:
“WHEREFORE, defendants are ordered, jointly and severally, to pay to the plaintiff: (1) the amount of P6,000,000.00, with interest at the legal rate (12% per annum) from January 10, 1989 until fully paid; (2) 20% of this amount to serve as reimbursement of plaintiff’s attorney’s fees; and (3) to pay the cost of the suit.
“SO ORDERED.
“Makati, Metro Manila, April 29, 1993.
“[Original Signed]
“SALVADOR P. DE GUZMAN, Jr.
“Pairing Judge”[9]
On May 26, 1993, petitioners
interposed an appeal from the decision to the Court of Appeals.[10]
After due proceedings, on October
9, 1997, the Court of Appeals promulgated a decision affirming the decision of
the trial court. The Court of Appeals
ruled that preponderance of evidence favored the existence of a consultancy
agreement between the parties. It
upheld the factual findings of the trial court, thus:
“Plaintiff’s evidence details the efforts he exerted after having
been extended an appointment by Marubeni as its consultant. He tendered a thanksgiving dinner for the
defendants at the Nandau Restaurant; he and Napoleon Rama visited Marubeni’s
Morihiko Maruyama in the latter’s office
during which they discussed the BOP II project. He arranged several conferences between the
Marubeni officials and Postmaster
General Angelito Banayo. In one meeting
which took place in the office of Mr. Banayo at Liwasang Bonifacio, a Mr. Ida,
the General Manager of Sanritsu, was conspicuously present. Mr. Banayo testified that Mr. Ida told him
that Sanritsu was representing Marubeni in the BOP II project (tsn., 6/11/90,
pp. 15-17; 5/15/91, pp. 10-12). At
least thirty (30) conferences between plaintiff and defendants took place at
the Marubeni offices, lasting at least two hours each meeting. Eventually, the bid was awarded by the
Bureau of Post to Sanritsu. Aware that
Sanritsu represented Marubeni, and in fact Marubeni assigned Sanritsu to enter
its bid, plaintiff sent his bill for his services to the defendants in a letter
dated April 20, 1988. This was followed
by a letter dated September 26, 1990 of plaintiff’s counsel. This time Mr. Tanaka asked for 15 days
within which to contact their Head Office to seek instructions.”[11]
The Court of Appeals relied on the
doctrine of admission by silence[12] in upholding the existence of a consultancy
agreement, noting that petitioner Tanaka’s reaction to respondent’s September
26, 1988 demand letter was not consistent with their claim that there was no
consultancy agreement. On the contrary,
it lent credence to respondent’s claim that they had an existing consultancy
agreement. Petitioner Tanaka’s response
dated October 13,
1988 to the demand letter of September 26, 1988 reads:
“Referring to your letter dated September 26, 1988, we are pleased
to inform you that the issue is currently being reviewed by us and we would
like to reply to you within fifteen (15) days.”[13]
The Court of Appeals observed that
if indeed there were no consultancy agreement, it would have been easy for
petitioners to simply deny respondent’s claim.
Yet, they did not do so. The
conglomeration of these circumstances bolstered the existence of the oral
consultancy agreement. The dispositive
portion of the decision reads:
“WHEREFORE, the decision appealed from is hereby AFFIRMED.”[14]
Hence, this appeal.[15]
In this appeal, petitioners raise
the following issues: (1) whether or not there was a consultancy agreement
between petitioners and respondent; and corollary to this, (2) whether or not
respondent is entitled to receive a commission if there was, in fact, a
consultancy agreement.[16]
We find the appeal meritorious.
In deciding this appeal, we rely
on the rule that a party who has the burden of
proof in a civil case must establish his case by a preponderance of
evidence.[17] When the evidence of the parties is in equipoise, or
when there is a doubt as to where the preponderance of evidence lies, the party
with the burden of proof fails and the petition must thus be denied.[18]
As a general rule, factual
findings of the Court of Appeals are conclusive on the parties and are not
reviewed by the Supreme Court—and they carry even more weight when the Court of
Appeals affirmed the factual findings of the trial court. It is not the function of the Supreme Court
to weigh anew the evidence passed upon by the Court of Appeals.[19] Moreover, only questions of law may be raised before
the Supreme Court in a petition for review under Rule 45 of the Revised Rules
of Court.[20]
However, the rule is subject to
exceptions,[21] such as when the conclusion is grounded on
speculations, surmises, or conjectures,[22] as in the instant case.
An assiduous scrutiny of the
testimonial and documentary evidence extant leads us to the conclusion that the
evidence could not support a solid conclusion that a consultancy agreement,
oral or written, was agreed between petitioners and respondent. Respondent
attempted to fortify his own testimony by presenting several
corroborative witnesses. However, what
was apparent in the testimonies of these witnesses was the fact that they
learned about the existence of the consultancy agreement only because that was
what respondent told them.[23]
In civil cases, he who alleges a
fact has the burden of proving it; a mere allegation is not evidence.[24] He must establish his cause by a preponderance of
evidence,[25] which respondent failed to establish in the instant
case.
Assuming for the sake of argument that an oral consultancy
agreement has been perfected between the parties, respondent Lirag could not
still claim fees on the project that has not been awarded to Marubeni.
If respondent’s contentions were
to be taken as truth, he would be entitled to 6% consulting fee based on the
total cost of the projects obtained,[26] or on success basis.[27] However, even respondent admitted that the Bureau of
Post project was not awarded to Marubeni, but to Sanritsu.[28] Marubeni did not even join the bidding for the Bureau
of Post project.
Respondent could not claim from
Sanritsu because of the absence of any agreement between him and the
latter. When asked to clarify whether
he has an existing consultancy agreement with Sanritsu, respondent answered in
the negative, thus:
“COURT:
One clarificatory question-
Do you have any consultancy service contract with Marubeni/San Ritsu – do you have?
A: No, sir. I have only Consultancy Agreement on verbal
basis with Marubeni.”[29]
Hence, how could he be entitled to
the 6% commission, when it was not his client who won in the bidding?
Respondent tried to justify his
commission of roughly about P6,000,000.00 in the guise that Marubeni and
Sanritsu are sister corporations, thereby implying the need to pierce the veil
of corporate fiction. Respondent
claimed that Marubeni as the supplier and real contractor of the project hired
and sub-contracted the project to Sanritsu.
We believe that this line of
reasoning is too far-fetched. Not
because two foreign companies came from the same country and closely worked
together on certain projects would the conclusion arise that one was the
conduit of the other, thus piercing the veil of corporate fiction.
To disregard the separate
juridical personality of a corporation, the wrongdoing must be clearly and
convincingly established. It cannot be
presumed. The separate personality of
the corporation may be disregarded only when the corporation is used as a cloak
or cover for fraud or illegality, or to work injustice, or where necessary for
the protection of creditors.[30] We could not just rely on respondent’s testimony regarding
the existence of the “Marubeni-Sanritsu tandem” to justify his claim for
payment of commission. This conclusion
is too conjectural to be believed.
Aside from the self-serving
testimony of respondent regarding the existence of a close working relationship
between Marubeni and Sanritsu, there was nothing that would support the
conclusion that Sanritsu was an agent of Marubeni. Mr. Lito Banayo, whom respondent presented to corroborate his
testimony on this particular issue said, thus:
“ATTY. VALERO
My question is- do you know for a fact whether the impression you have about Japanese Trading Firm working through Agents was the relationship between Marubeni and San Ritsu when Mr. Iida said that they were working together?
“A: I did not know for a fact because I did not see any contract
between Marubeni and San Ritsu presented to me.”[31]
Contrary to the trial court’s
finding that petitioners led respondent to believe that they hired respondent’s
services as consultant, the evidence proved otherwise. Petitioner Shoichi One, one of the officers
of Marubeni Phils., testified that at the onset, Marubeni Phils. informed
respondent that it had no authority to commit to anything, as it all depended
on the decision of the principal headquarters in Tokyo, Japan. However, respondent Lirag insisted on
providing assistance to Marubeni to get coveted government contracts because Marubeni might encounter
difficulties due to discrimination from the government.[32] Despite such knowledge, respondent said that “it’s
alright” with him as he “believes Marubeni was an old time friend so he wanted
to work for those projects.”[33] Hence, how could petitioners be guilty of misleading
respondent on the acceptance of the latter’s offer of consultancy service?
With regard to the Court of
Appeal’s ratiocination that petitioner Tanaka’s response dated October 13, 1988
to the demand letter of September 26, 1988, amounted to an implied admission of
the consultancy agreement, the records showed that, to the contrary, this fact
strengthened petitioners’ allegation that Marubeni Phils. lacked the requisite
authority to enter into any binding agreement.
As explained by petitioner Shoichi
One, Marubeni Phils. could enter into a consultancy agreement only after
submitting a recommendation to the principal headquarters in Tokyo, Japan. If the office in Tokyo, Japan agrees to hire
consultants, it would then give a power of attorney to its general manager in
Manila authorizing the latter to enter into such agreement.
In the instant case, the parties
did not reach the second stage as the headquarters in Tokyo, Japan did not see
it fit to hire a consultant as they decided not to participate in the
bidding. Hence, no consultancy
agreement was perfected, whether oral or written. There was no absolute acceptance of respondent’s offer of
consultancy services.
Assuming arguendo that the
petitioner accepted respondent’s offer of consultancy services, we could not
give legal imprimatur to the agreement.
The service rendered by respondent contemplated the exploitation of
personal influence and solicitation on a public officer.
Respondent said that petitioners
sought out his services because they “needed somebody who can help them
‘penetrate’ and establish goodwill” with the government.[34] Petitioners found it difficult to arrange a meeting
with Postmaster General Angelito Banayo because of petitioners’ reputation of
engaging in questionable transactions.[35] Suddenly, through the intervention of respondent, the
postmaster general became accessible to petitioners. This became possible because of respondent’s close personal
relationship with the postmaster general, his trusted and long-time friend.[36] Respondent testified, to wit:
“Q: In other words you are saying that Marubeni and San Ritsu representatives had a conference with the Post Master General Banayo in connection with this Project?
“A: Yes and I was the one
who made the arrangement.”[37]
In another instance, respondent
said, thus:
“WITNESS:
What we have done by that… first, Mr. Banayo went to Tokyo and when he was in Tokyo we were able to arrange the Marubeni representative in Tokyo to meet and talk with Mr. Banayo in Tokyo…
“COURT:
Mr…?
“A. …Banayo, the Post Master
General and representatives of Marubeni in Tokyo - this was done because of my
intervention.”[38]
Any agreement entered into because
of the actual or supposed influence which the party has, engaging him to
influence executive officials in the discharge of their duties, which
contemplates the use of personal influence and solicitation rather than an
appeal to the judgment of the official on the merits of the object sought is
contrary to public policy.[39] Consequently, the agreement, assuming that the
parties agreed to the consultancy, is null and void as against public policy.[40] Therefore, it is unenforceable before a court of
justice.[41]
In light of the foregoing, we rule
that the preponderance of evidence established no consultancy agreement between
petitioners and respondent from which the latter could anchor his claim for a
six percent (6%) consultancy fee on a project that was not awarded to
petitioners.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals[42] is hereby SET ASIDE. Civil Case No. 89-3037 filed
before the Regional Trial Court, Branch 143, Makati City is hereby DISMISSED.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.
[1] In CA-G.R. CV No.
45873, promulgated on October 9, 1997, Verzola, J., ponente, Ibay-Somera
and Demetria, JJ., concurring.; Rollo, pp. 30-39.
[2] Now closed.
[3] Docketed as Civil
Case No. 89-3037; Petition for Review, Annex “D”, Rollo, pp. 46-51.
[4] Complaint, Regional
Trial Court Records, pp. 1-6, at p. 2.
[5] TSN, May 21, 1990,
p. 38.
[6] Ibid., pp.
24-29.
[7] The additional
projects were as follows: (A) JICA PROJECTS - (1) Soil Research Laboratory; (2)
Learning Resource Center; (3) Provincial Hospitals; and (4) Hydrographic &
Oceangraphic Slip; (B) OECF PROJECTS - (1) Metro Manila Pumping Station/ Flood
Control; and (2) Metro Manila Traffic.; Complaint, Regional Trial Court
Records, at p. 3; Rollo, p. 48.
[8] TSN, May 21, 1990,
p. 42.
[9] Rollo, p.
118.
[10] Rollo, p.
119.
[11] Court of Appeals
Decision, Rollo, pp. 34-35.
[12] Rule 130, Section
23. Admission by silence.- Any
act or declaration made in the presence and within the observation of a
party who does or says nothing when the act or declaration is such as naturally
to call for action or comment if not true, may be given in evidence against
him.
[13] Court of Appeals
Decision, Rollo, p. 36.
[14] TSN, May 21, 1990,
p. 61; Court of Appeals Decision, Rollo, p. 38.
[15] Petitioner’s
Memorandum, Rollo, pp. 310-332, at pp. 312-313; On October 21, 1998, the
Court gave due course to the petition, Rollo, p. 274.
[16] Petition for Review,
filed on December 1, 1997, Rollo, pp. 8-24.
[17] Rivera v.
Court of Appeals, 348 Phil. 734, 742 [1998].
[18] Ibid., p.
743.
[19] Gold Loop
Properties, Inc. v. Court of Appeals, 306 SCRA 639, 652 [1999].
[20] Tinio v. Manzano,
307 SCRA 460, 469 [1999].
[21] In Sta. Maria v.
Court of Appeals, 285 SCRA 351 [1998], the Court enumerated some of the
instances when the factual findings of the Court of Appeals are not deemed
conclusive, to wit: (1) when the findings are grounded entirely on speculation,
surmises, or conjectures; (2) when the
inference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when
the judgment is based on a misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings are
contrary to those of the trial court;
(8) when the findings are conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the petition as well as
in the petitioner’s main and reply briefs are not disputed by the respondent;
and (10) when the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record.
[22] Castilex Industrial
Corporation v. Vasquez, Jr., 321 SCRA 393, 403 [1999].
[23] TSN, May 28, 1990,
p. 125; TSN, June 4, 1990, p. 7; TSN, June 11, 1990, pp. 202-203.
[24] Luxuria Homes, Inc. v.
Court of Appeals, 302 SCRA 315, 325 [1999].
[25] Ceremonia v.
Court of Appeals, 314 SCRA 731, 736 [1999].
[26] Complaint, Regional
Trial Records, p. 2.
[27] TSN, July 6, 1990,
p. 290.
[28] TSN, May 21, 1990,
p. 64.
[29] TSN, May 21, 1990, pp.
45-46.
[30] Luxuria Homes, Inc. v.
Court of Appeals, supra, Note 22, 328-329 [1999].
[31] TSN, June 11, 1990,
p. 209.
[32] TSN, July 6, 1990,
p. 279.
[33] TSN, July 6, 1990,
p. 281.
[34] Annex “F,” Petition
for Review, p. 62.
[35] Annex “F,” Petition
for Review, p. 63.
[36] Annex “F,” Petition
for Review, p. 58.
[37] TSN, May 21, 1990,
pp. 67-68.
[38] TSN, May 21, 1990,
p. 33.
[39] International
Harvester Macleod, Inc. v. Court of Appeals, 90 SCRA 512, 522 [1979].
[40] Tee v.
Tacloban Electric and Ice Plant Co, Inc., 105 Phil. 168 [1959].
[41] International
Harvester Macleod, Inc. v. Court of Appeals, supra, Note 37, at
p. 523.
[42] In CA-G. R. CV No.
45873.