Republic of
the
Supreme Court
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Destileria Limtuaco & |
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G.R. No. 164242 |
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CO., INC. and CONVOY |
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MARKETING
CORPORATION, |
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Petitioners, |
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Present: |
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YNARES-SANTIAGO, J., |
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Chairperson, |
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- versus - |
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AUSTRIA-MARTINEZ, |
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CHICO-NAZARIO, |
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NACHURA, and |
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REYES, JJ. |
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ADVERTISING BOARD OF |
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THE |
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Promulgated: |
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Respondent. |
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November 28, 2008 |
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D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
The present dispute focuses mainly on the power of the Advertising Board of
the
AdBoard is an umbrella non-stock, non-profit corporation
created in 1974[1]
composed of several national organizations in the advertising industry,
including: Advertising Suppliers Association of the Philippines (ASAP), Association
of Accredited Advertising Agencies Philippines (4As), Cinema Advertising
Association of the Philippines (CAAP), Independent Blocktimers
Association of the Philippines (IBA), Kapisanan
ng mga Brodkaster
ng Pilipinas (KBP),
Outer Advertising Association of the Philippines (OAAP), the Marketing &
Opinion Research Society of the Philippines (MORES), Philippine Association of
National Advertisers (PANA) and the Print Media Organization (PRIMO).
Destileria Limtuaco & Co.,
Inc. (Destileria) was formerly a member of PANA.
In
January 2004, Destileria and Convoy Marketing
Corporation (Convoy), through its advertising agency, SLG Advertising (SLG), a
member of the 4As, applied with the AdBoard for a
clearance of the airing of a radio
advertisement entitled, “Ginagabi (Nakatikim ka na ba ng Kinse
Anyos).”
AdBoard issued a clearance for said advertisement. Not long after the ad started airing, AdBoard was swept with complaints from the public. This prompted AdBoard
to ask SLG for a replacement but there was no response. With the continued complaints from the
public, AdBoard, this time, asked SLG to withdraw its
advertisement, to no avail. Thus, AdBoard decided to recall the clearance previously issued,
effective immediately.[2] Said decision to recall was conveyed to SLG
and AdBoard's members-organizations.[3]
Petitioners
protested the AdBoard's decision, after which, they
filed a Complaint which was later on amended, for Dissolution of Corporation,
Damages and Application for Preliminary Injunction with prayer for a Temporary
Restraining Order with the Regional Trial Court (RTC) of Makati,
docketed as Civil Case No. 04-277.[4] The Amended Complaint sought the
revocation/cancellation of AdBoard's registration and
its dissolution on the grounds, inter alia,
that it was usurping the functions of the Department of Trade and Industry (DTI)
and the Movie and Television Review and Classification Board (MTRCB) by
misrepresenting that it has the power to screen, review and approve all radio
and television advertisements.
Petitioners seek the nullity of AdBoard's
“Code of Ethics for Advertising” and “ACRC Manual of Procedures for Screening
and Filing of Complaints and Appeals.”[5]
On
Petitioners
then filed with the Ombudsman a complaint for misconduct and conduct
prejudicial to the best interest of the service against AdBoard's
officers.
On
Petitioners
argue that their right to advertise is a constitutionally protected right, as
well as a property right. Petitioners
believe that requiring a clearance from AdBoard
before advertisements can be aired amounts to a deprivation of property without
due process of law. They also argue that
AdBoard's regulation is an exercise of police power
which must be subject to constitutional proscriptions.
On the
other hand, AdBoard seeks the dismissal of the
petition for failure to observe the rule on hierarchy of courts and for failure
to comply with certain requirements for the filing of the petition, namely:
statement of material dates, attachment of certified true copy of ACRC Circular
No. 2004-02, and defect in the certification of non-forum shopping.
As to the merits of petitioners'
arguments, AdBoard counters that it derives its
authority from the voluntary submission of its members to its
jurisdiction. According to AdBoard, there is no law that prohibits it from assuming
self-regulatory functions or from issuing clearances prior to advertising.
The
petition is bereft of merit.
First of all, the petition filed in this case is one for
prohibition, i.e., to command AdBoard
to desist from requiring petitioners to secure a clearance and imposing
sanctions on any agency that will air, broadcast or publish petitioners' ads
without such clearance.[6]
Under Section 2, Rule 65 of the Rules
of Court, for petitioners to be entitled to such recourse, it must establish
the following requisites: (a) it must be directed against a tribunal,
corporation, board or person exercising functions, judicial, quasi-judicial or
ministerial; (b) the tribunal, corporation, board or person has acted without
or in excess of its/his jurisdiction, or with grave abuse of discretion; and (c) there is no
appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law.[7]
A respondent is said to be
exercising judicial function by which he has the power to determine what the
law is and what the legal rights of the parties are, and then undertakes to
determine these questions and adjudicate upon the rights of the parties. Quasi-judicial function is a term which
applies to the action and discretion of public administrative officers or
bodies, which are required to investigate facts or ascertain the existence of
facts, hold hearings, and draw conclusions from them as a basis for their
official action and to exercise discretion of a judicial nature. Ministerial function is one which an officer
or tribunal performs in the context of a given set of facts, in a prescribed
manner and without regard for the exercise of his/its own judgment upon the
propriety or impropriety of the act done.[8]
The acts sought to be prohibited in this case are not the
acts of a tribunal, board, officer, or person exercising judicial,
quasi-judicial, or ministerial functions.[9] What is at contest here is the power and
authority of a private organization, composed of several members-organizations,
which power and authority were vested to it by its own members. Obviously, prohibition will not lie in this
case. The definition and purpose of a writ
of prohibition excludes the use of the writ against any person or group of
persons acting in a purely private capacity, and the writ will not be issued
against private individuals or corporations so acting.[10]
Moreover, it
appears that petitioners already filed Civil Case No. 04-277, wherein they
sought the revocation/cancellation of AdBoard's registration
and dissolution and the nullity of AdBoard's Code of
Ethics for Advertising and ACRC Manual of Procedures for Screening and Filing
of Complaints and Appeals (ACRC Manual), with the RTC. Although dubbed differently, the present
petition is obviously an attempt on petitioners' part to have AdBoard's authority challenged in yet another forum. This is a clear act of forum shopping on
petitioners' part.
Forum
shopping has been defined as the “institution of two (2) or
more actions or proceedings grounded on the same cause on the supposition that
one or the other court would make a favorable disposition” or “the act of a
party against whom an adverse judgment has been rendered in one forum,
of seeking another (and possibly favorable) opinion in another forum
other than by appeal or the special civil action of certiorari.”[11] The test in determining the
presence of forum shopping is whether in the two or more cases pending, there
is identity of: (a) parties; (b) rights or causes of action; and (c) reliefs sought,[12] such that any judgment
rendered in the other action will, regardless of which party is successful,
amount to res adjudicata in
the action under consideration: all the requisites, in fine, of auter action pendant.[13]
Civil
Case No. 04-277 and the present petition both involve the same parties. The petitioners in this case are Destileria Limtuaco & Co.,
Inc. and Convoy Marketing Corp., while the respondent is AdBoard. On the other hand, the plaintiffs in Civil Case No. 04-277 also are petitioners,
while the defendant is still AdBoard, only with the
addition of Oscar T. Valenzuela, who is the Executive Director of AdBoard.
Both
cases also raise practically the same basic causes of action/issues and
seek the same relief.
The
test to determine whether the causes of action are identical is to ascertain
whether the same evidence will sustain both actions, or whether there is an identity in the facts essential to the maintenance of the two
actions. If the same facts or evidence would sustain both, the two actions are
considered the same, and a judgment in the first case is a bar to the
subsequent action.[14] The principle applies even if
the reliefs sought in the
two cases may be different.[15] Otherwise, a party could
easily escape the operation of res judicata by changing
the form of the action or the relief sought.[16]
There
is identity in the causes of action in Civil Case No. 04-277 and the present
petition for prohibition inasmuch as there is identity in the facts and
evidence essential to the resolution of the identical
issue raised in these cases. Both cases
were instituted after AdBoard recalled the clearance
for petitioners' Ginagabi advertisement,
and its members refused to air the same.
Also, the main issue raised in the present petition and one of the
issues raised in Civil Case No. 04-277 refer to AdBoard's
authority and the legality of the AdBoard Code of
Ethics and ACRC Manual. The determination of this issue in either case
would clearly amount to res judicata in
regard to the other. Consequently, the
present petition should be dismissed.
WHEREFORE, the petition is DISMISSED for lack of merit.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE
CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MINITA
V. CHICO-NAZARIO Associate Justice |
ANTONIO
EDUARDO B. NACHURA Associate Justice |
RUBEN T. REYES
Associate Justice
ATTESTATION
I
attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third
Division
CERTIFICATION
Pursuant to Section
13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
REYNATO S. PUNO
Chief
Justice
[1] The
AdBoard was originally named the Philippine Board of
Advertising (PBA) when it was first formed in May 1974.
[2] Rollo, pp.
128-129.
[3]
[4] Entitled
“Destileria Limtuaco
& Co., Inc. and Convoy Marketing v. Advertising Board of the Philippines,
Inc. and Oscar T. Valenzuela.”
[5] Rollo, pp.
186-187.
[6] Rollo, p. 17.
[7] Longino v. General, G.R. No. 147956,
[8] Metropolitan
Bank and Trust Co., Inc. v. National Wages and Productivity Commission, G.R. No.
144322, February 6, 2007, 514 SCRA 346, 357.
[9] Rivera v. Espiritu, 425 Phil. 169, 180 (2002).
[10] 63C Am. Jur. 2d
Prohibition § 39.
[11] Clark Development Corporation v. Mondragon Leisure and Resorts Corporation, G.R. No. 150986, March 2, 2007, 517 SCRA 203, 213.
[12] Hyrdro
Resources Contractors Corporation v. National Irrigation Administration,
G.R. No. 160215,
[13] First Philippine International Bank v. Court of Appeals, 322 Phil. 280, 306 (1996),
[14] Luzon Development Bank v. Conquilla, G.R. No. 163338,
[15] Korea Exchange Bank v. Gonzales,
G.R. Nos. 142286-87,
[16]