Republic Vs Mega Pacific PDF

G.R. No. 184666. June 27, 2016.*

REPUBLIC OF THE PHILIPPINES, petitioner, vs. MEGA
PACIFIC ESOLUTIONS, INC., WILLY U. YU, BONNIE S.
YU, ENRIQUE T. TANSIPEK, ROSITA Y. TANSIPEK,
PEDRO O. TAN, JOHNSON W. FONG, BERNARD I.
FONG, and LAURIANO** A. BARRIOS, respondents.
Remedial Law; Provisional Remedies; Attachment; Through

the writ of attachment, the property or properties of the defendant
may be levied upon and held thereafter by the sheriff as security
for the satisfaction of whatever judgment might be secured by the
attaching creditor against the defendant.—A writ of preliminary
attachment is a provisional remedy issued upon the order of the
court where an action is pending. Through the writ, the property
or properties of the defendant may be levied upon and held
thereafter by the sheriff as security for the satisfaction of
whatever judgment might be secured by the attaching creditor
against the defendant. The provisional remedy of attachment is
available in order that the defendant may not dispose of the
property attached, and thus prevent the satisfaction of any
judgment that may be secured by the plaintiff from the former.
Same; Same; Same; The purpose and function of an
attachment or garnishment is twofold. First, it seizes upon
property of an alleged debtor in advance of final judgment and
holds it subject to appropriation, thereby preventing the loss or
dissipation of the property through fraud or other means. Second,
it subjects the property of the debtor to the payment of a creditor’s
claim, in those cases in which personal service upon the debtor
cannot be obtained.—The purpose and function of an attachment
or garnishment is twofold. First, it seizes upon property of an
alleged debtor in advance of final judgment and holds it subject to
appropriation, thereby preventing the loss or dissipation of the
property through fraud or other means. Second, it subjects the
property of the debtor to the payment of a creditor’s claim, in
those cases in which personal service upon the
_______________
* FIRST DIVISION.
** Laureano A. Barrios in some part of the records.

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Republic vs. Mega Pacific eSolutions, Inc.
debtor cannot be obtained. This remedy is meant to secure a

contingent lien on the defendant’s property until the plaintiff can,
by appropriate proceedings, obtain a judgment and have the
property applied to its satisfaction, or to make some provision for
unsecured debts in cases in which the means of satisfaction
thereof are liable to be removed beyond the jurisdiction, or
improperly disposed of or concealed, or otherwise placed beyond
the reach of creditors.
Fraud; Fraud is a generic term that is used in various senses
and assumes so many different degrees and forms that courts are
compelled to content themselves with comparatively few general
rules for its discovery and defeat.—Fraud is a generic term that is
used in various senses and assumes so many different degrees
and forms that courts are compelled to content themselves with
comparatively few general rules for its discovery and defeat. For
the same reason, the facts and circumstances peculiar to each
case are allowed to bear heavily on the conscience and judgment
of the court or jury in determining the presence or absence of
fraud. In fact, the fertility of man’s invention in devising new
schemes of fraud is so great that courts have always declined to
define it, thus, reserving for themselves the liberty to deal with it
in whatever form it may present itself. Fraud may be
characterized as the voluntary execution of a wrongful act or a
wilful omission, while knowing and intending the effects that
naturally and necessarily arise from that act or omission. In its
general sense, fraud is deemed to comprise anything calculated to
deceive — including all acts and omission and concealment
involving a breach of legal or equitable duty, trust, or confidence
justly reposed — resulting in damage to or in undue advantage
over another. Fraud is also described as embracing all
multifarious means that human ingenuity can device, and is
resorted to for the purpose of securing an advantage over another
by false suggestions or by suppression of truth; and it includes all
surprise, trick, cunning, dissembling, and any other unfair way by
which another is cheated.
Same; Concealment; Pursuant to Article 1339 of the Civil
Code, silence or concealment does not, by itself, constitute fraud,
unless there is a special duty to disclose certain facts, or unless the
communication should be made according to good faith and the
usages of commerce.—Pursuant to Article 1339 of the Civil
Code, silence or concealment does not, by itself, constitute fraud,
unless there is a

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416 SUPREME COURT REPORTS ANNOTATED

special duty to disclose certain facts, or unless the

communication should be made according to good faith and the
usages of commerce.
Criminal Law; Estafa; One (1) form of inducement is covered
within the scope of the crime of estafa under Article 315,
paragraph 2 of the Revised Penal Code (RPC), in which, any
person who defrauds another by using fictitious name, or falsely
pretends to possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or by means of
similar deceits executed prior to or simultaneously with the
commission of fraud is held criminally.—Fraud has been defined
to include an inducement through insidious machination.
Insidious machination refers to a deceitful scheme or plot with an
evil or devious purpose. Deceit exists where the party, with intent
to deceive, conceals or omits to state material facts and, by
reason of such omission or concealment, the other party was
induced to give consent that would not otherwise have been given.
One form of inducement is covered within the scope of the crime
of estafa under Article 315, paragraph 2 of the Revised Penal
Code, in which, any person who defrauds another by using
fictitious name, or falsely pretends to possess power, influence,
qualifications, property, credit, agency, business or imaginary
transactions, or by means of similar deceits executed prior to or
simultaneously with the commission of fraud is held criminally
liable.
Bids and Bidding; Words and Phrases; The word “bidding” in
its comprehensive sense means making an offer or an invitation to
prospective contractors, whereby the government manifests its
intention to make proposals for the purpose of securing supplies,
materials, and equipment for official business or public use, or for
public works or repair.—The word “bidding” in its comprehensive
sense means making an offer or an invitation to prospective
contractors, whereby the government manifests its intention to
make proposals for the purpose of securing supplies, materials,
and equipment for official business or public use, or for public
works or repair. Three principles involved in public bidding are as
follows: (1) the offer to the public; (2) an opportunity for
competition; and (3) a basis for an exact comparison of bids. A
regulation of the matter, which excludes any of these factors,
destroys the distinctive character of the system and thwarts the
purpose of its adoption.

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Corporations; Piercing the Veil of Corporate Fiction; Veil-

piercing in fraud cases requires that the legal fiction of separate
juridical personality is used for fraudulent or wrongful ends.—
Veil-piercing in fraud cases requires that the legal fiction of
separate juridical personality is used for fraudulent or wrongful
ends. For reasons discussed below, We see red flags of fraudulent
schemes in public procurement, all of which were established in
the 2004 Decision, the totality of which strongly indicate that
MPEI was a sham corporation formed merely for the purpose of
perpetrating a fraudulent scheme. The red flags are as follows: (1)
overly narrow specifications; (2) unjustified recommendations and
unjustified winning bidders; (3) failure to meet the terms of the
contract; and (4) shell or fictitious company.
Same; Fictitious Companies; Shell companies have no
significant assets, staff or operational capacity. They pose a serious
red flag as a bidder on public contracts, because they often hide the
interests of project or government officials, concealing a conflict of
interest and opportunities for money laundering.—The Handbook
regards a shell or fictitious company as a “serious red flag,” a
concept that it elaborates upon: Fictitious companies are by
definition fraudulent and may also serve as fronts for
government officials. The typical scheme involves corrupt
government officials creating a fictitious company that will serve
as a “vehicle” to secure contract awards. Often, the fictitious — or
ghost — company will subcontract work to lower cost and
sometimes unqualified firms. The fictitious company may also
utilize designated losers as subcontractors to deliver the work,
thus indicating collusion. Shell companies have no significant
assets, staff or operational capacity. They pose a serious red
flag as a bidder on public contracts, because they often hide the
interests of project or government officials, concealing a conflict of
interest and opportunities for money laundering. Also, by
definition, they have no experience. MPEI qualifies as a shell
or fictitious company. It was nonexistent at the time of the
invitation to bid; to be precise, it was incorporated only 11 days
before the bidding. It was a newly formed corporation and, as
such, had no track record to speak of.
Same; The totality of the red flags found in this case leads Us
to the inevitable conclusion that Mega Pacific eSolutions, Inc.
(MPEI) was nothing but a sham corporation formed for the
purpose of de-

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frauding petitioner.—The totality of the red flags found in

this case leads Us to the inevitable conclusion that MPEI was
nothing but a sham corporation formed for the purpose of
defrauding petitioner. Its ultimate objective was to secure the
P1,248,949,088 automation contract. The scheme was to put up a
corporation that would participate in the bid and enter into a
contract with the COMELEC, even if the former was not qualified
or authorized to do so.
Same; Piercing the Veil of Corporate Fiction; The main effect
of disregarding the corporate fiction is that stockholders will be
held personally liable for the acts and contracts of the corporation,
whose existence, at least for the purpose of the particular situation
involved, is ignored.—The main effect of disregarding the
corporate fiction is that stockholders will be held personally liable
for the acts and contracts of the corporation, whose existence, at
least for the purpose of the particular situation involved, is
ignored. We have consistently held that when the notion of legal
entity is used to defeat public convenience, justify wrong, protect
fraud, or defend crime, the law will regard the corporation as
an association of persons. Thus, considering that We find it
justified to pierce the corporate veil in the case before Us, MPEI
must, perforce, be treated as a mere association of persons whose
assets are unshielded by corporate fiction. Such persons’
individual liability shall now be determined with respect to the
matter at hand.
Remedial Law; Special Civil Actions; Certiorari; Section 1,
Rule 65 of the Rules of Court, clearly sets forth the instances when
a petition for certiorari can be used as a proper remedy.—It is
obvious that respondents are merely trying to escape the
implications or effects of the nullity of the automation contract
that they had executed. Section 1, Rule 65 of the Rules of Court,
clearly sets forth the instances when a petition for certiorari can
be used as a proper remedy: Section 1. Petition for certiorari.—
When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its jurisdiction,
or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and
justice may require.

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Same; Civil Procedure; Res Judicata; This doctrine of res

judicata which is set forth in Section 47 of Rule 39 of the Rules of
Court lays down two (2) main rules, namely: (1) the judgment or
decree of a court of competent jurisdiction on the merits concludes
the litigation between the parties and their privies and constitutes
a bar to a new action or suit involving the same cause of action
either before the same or any other tribunal; and (2) any right,
fact, or matter in issue directly adjudicated or necessarily involved
in the determination of an action before a competent court in
which a judgment or decree is rendered on the merits is
conclusively settled by the judgment therein and cannot again be
litigated between the parties and their privies whether or not the
claims or demands, purposes, or subject matters of the two suits
are the same.—Respondents appear to have misunderstood the
implications of the principle of conclusiveness of judgment on
their cause. Contrary to their claims, the factual findings
are conclusive and have been established as the controlling legal
rule in the instant case, on the basis of the principle of res
judicata — more particularly, the principle of conclusiveness of
judgment. This doctrine of res judicata which is set forth in
Section 47 of Rule 39 of the Rules of Court lays down two main
rules, namely: (1) the judgment or decree of a court of competent
jurisdiction on the merits concludes the litigation between the
parties and their privies and constitutes a bar to a new action or
suit involving the same cause of action either before the same or
any other tribunal; and (2) any right, fact, or matter in issue
directly adjudicated or necessarily involved in the determination
of an action before a competent court in which a judgment or
decree is rendered on the merits is conclusively settled by the
judgment therein and cannot again be litigated between the
parties and their privies whether or not the claims or demands,
purposes, or subject matters of the two suits are the same.
Same; Same; Same; Conclusiveness of Judgments; When a
right or fact has been judicially tried and determined by a court of
competent jurisdiction, or when an opportunity for that trial has
been given, the judgment of the court — as long as it remains
unreversed — should be conclusive upon the parties and those in
privity with them.—Under the principle of conclusiveness of
judgment, those material facts became binding and conclusive on
the parties, in this case MPEI and, ultimately, the persons that
comprised it. When a right or fact has been judicially tried and
determined by a court of competent jurisdiction, or when an
opportunity for that trial has

420

been given, the judgment of the court — as long as it remains

unreversed — should be conclusive upon the parties and
those in privity with them. Thus, the CA should not have
required petitioner to present further evidence of fraud on the
part of respondent Willy and MPEI, as it was already necessarily
adjudged in the 2004 case.
Stare Decisis; Statements made by Justices of the Supreme
Court (SC) during oral arguments are not stare decisis; what is
conclusive are the decisions reached by the majority of the Court.—
Respondents cannot argue that, from the line of questioning of
then Justice Leonardo A. Quisumbing during the oral arguments
in the 2004 case, he did not agree with the factual findings of this
Court. Oral arguments before this Court are held precisely to test
the soundness of each proponent’s contentions. The questions and
statements propounded by Justices during such an exercise are
not to be construed as their definitive opinions. Neither are they
indicative of how a Justice shall vote on a particular issue; indeed,
Justice Quisumbing clearly states in the 2004 Decision that he
concurs in the results. At any rate, statements made by Our
Members during oral arguments are not stare decisis; what is
conclusive are the decisions reached by the majority of the Court.
Civil Law; Obligations; Extinguishment of Obligations;
Loans; Under Article 1233 of the New Civil Code, a debt shall not
be understood to have been paid, unless the thing or service in
which the obligation consists has been completely delivered or
rendered.—Under Article 1233 of the New Civil Code, a debt shall
not be understood to have been paid, unless the thing or service in
which the obligation consists has been completely delivered or
rendered. In this case, respondents cannot be considered to
have performed their obligation, because the ACMs were
defective.
Estoppel; Estoppel generally finds no application against the
State when it acts to rectify mistakes, errors, irregularities, or
illegal acts of its officials and agents, irrespective of rank.—
Contrary to respondents’ contention, estoppel generally finds no
application against the State when it acts to rectify mistakes,
errors, irregularities, or illegal acts of its officials and agents,
irrespective of rank. This principle ensures the efficient conduct of
the affairs of the State without any hindrance to the
implementation of laws and regula-

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tions by the government. This holds true even if its agents’

prior mistakes or illegal acts shackle government operations and
allow others — some by malice — to profit from official error or
misbehavior, and even if the rectification prejudices parties who
have meanwhile received benefit. Indeed, in the 2004 Decision,
this Court even directed the Ombudsman to determine the
possible criminal liability of public officials and private persons
responsible for the contract, and the OSG to undertake measures
to protect the government from the ill effects of the illegal
disbursement of public funds. The equitable doctrine of estoppel
for the prevention of injustice and is for the protection of those
who have been misled by that which on its face was fair and
whose character, as represented, parties to the deception will not,
in the interest of justice, be heard to deny. It cannot therefore be
utilized to insulate from liability the very perpetrators of the
injustice complained of.
PETITION for review on certiorari of an amended decision

of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Joven Siazon Lorenzo for respondent L. Barrios.
Lazaro Law Firm for respondents Mega Pacific
eSolutions, Inc., et al.
Poblador, Bautista & Reyes for respondents W. Yu, B.
Yu, E. Tansipek and R. Tansipek.
SERENO, CJ.:

The instant case is an offshoot of this Court’s Decision
dated 13 January 2004 (2004 Decision) in a related case
entitled Information Technology Foundation of the
Philippines v. Commission on Elections.1
_______________
1 G.R. No. 159139, 464 Phil. 173; 419 SCRA 141 (2004) [the 2004 case].

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In the 2004 case, We declared void the automation

contract executed by respondent Mega Pacific eSolutions,
Inc. (MPEI) and the Commission on Elections (COMELEC)
for the supply of automated counting machines (ACMs) for
the 2004 national elections.
The present case involves the attempt of petitioner
Republic of the Philippines to cause the attachment of the
properties owned by respondent MPEI, as well as by its
incorporators and stockholders (individual respondents in
this case), in order to secure petitioner’s interest and to
ensure recovery of the payments it made to respondents for
the invalidated automation contract.
At bench is a Rule 45 Petition assailing the Amended
Decision dated 22 September 2008 (Amended Decision)
issued by the Court of Appeals (CA) in C.A.-G.R. S.P. No.
95988.2 In said Amended Decision, the CA directed the
remand of the case to the Regional Trial Court of Makati
City, Branch 59 (RTC Makati) for the reception of evidence
in relation to petitioner’s application for the issuance of a
writ of preliminary attachment. The CA had reconsidered
and set aside its previous Decision dated 31 January 2008
(First Decision)3 entitling petitioner to the issuance of said
writ.
Summarized below are the relevant facts of the case,
some of which have already been discussed in this Court’s
2004 Decision:

The Facts

Republic Act No. 8436 authorized the COMELEC to use
an automated election system for the May 1998 elections.
How-
_______________
2 Rollo, pp. 31-36; in the case entitled Republic of the Philippines v.

Hon. Winlove M. Dumayas written by Associate Justice Japar B.
Dimaampao and concurred in by Associate Justices Mario L. Guariña III
and Sixto C. Marella, Jr.
3 Id., at pp. 293-302.

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VOL. 784, JUNE 27, 2016 423
ever, the automated system failed to materialize and

votes were canvassed manually during the 1998 and the
2001 elections.
For the 2004 elections, the COMELEC again attempted
to implement the automated election system. For this
purpose, it invited bidders to apply for the procurement of
supplies, equipment, and services. Respondent MPEI, as
lead company, purportedly formed a joint venture — known
as the Mega Pacific Consortium (MPC) — together with We
Solv, SK C & C, ePLDT, Election.com and Oracle.
Subsequently, MPEI, on behalf of MPC, submitted its bid
proposal to COMELEC.
The COMELEC evaluated various bid offers and
subsequently found MPC and another company eligible to
participate in the next phase of the bidding process.4 The
two companies were referred to the Department of Science
and Technology (DOST) for technical evaluation. After due
assessment, the Bids and Awards Committee (BAC)
recommended that the project be awarded to MPC. The
COMELEC favorably acted on the recommendation and
issued Resolution No. 6074, which awarded the automation
project to MPC.
Despite the award to MPC, the COMELEC and MPEI
executed on 2 June 2003 the Automated Counting and
Canvassing Project Contract (automation contract)5 for the
aggregate amount of P1,248,949,088. MPEI agreed to
supply and deliver 1,991 units of ACMs and such other
equipment and materials necessary for the computerized
electoral system in the 2004 elections. Pursuant to the
automation contract, MPEI delivered 1,991 ACMs to the
COMELEC. The latter, for its part, made partial payments
to MPEI in the aggregate amount of P1.05 billion.
The full implementation of the automation contract was
rendered impossible by the fact that, after a painstaking
legal battle, this Court in its 2004 Decision declared the
contract
_______________
4 Id., at p. 82.
5 Id., at pp. 84-106.

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null and void.6 We held that the COMELEC committed

a clear violation of law and jurisprudence, as well as a
reckless disregard of its own bidding rules and procedure.
In addition, the COMELEC entered into the contract with
inexplicable haste, and without adequately checking and
observing mandatory financial, technical, and legal
requirements. In a subsequent Resolution, We summarized
the COMELEC’s grave abuse of discretion as having
consisted of the following:7

1. By a formal Resolution, it awarded the project to
“Mega Pacific Consortium,” an entity that had not
participated in the bidding. Despite this grant,
Comelec entered into the actual Contract with “Mega
Pacific eSolutions, Inc.” (MPEI), a company that
joined the bidding process but did not meet the
eligibility requirements.
2. Comelec accepted and irregularly paid for
MPEI’s ACMs that had failed the accuracy
requirement of 99.9995 percent set up by the Comelec
bidding rules. Acknowledging that this rating
_______________
6 The dispositive portion of this Court’s Decision in the 2004 case is
stated as follows:
Wherefore, the PETITION is GRANTED. The Court hereby declares
NULL and VOID Comelec Resolution No. 6074 awarding the contract for
Phase II of the CAES to Mega Pacific Consortium (MPC). Also declared
null and void is the subject Contract executed between Comelec and Mega
Pacific eSolutions (MPEI). Comelec is further ORDERED to refrain from
implementing any other contract or agreement entered into with regard to
this project.
Let a copy of this Decision be furnished the Office of the Ombudsman
which shall determine the criminal liability, if any, of the public officials
(and conspiring private individuals, if any) involved in the subject
Resolution and Contract. Let the Office of the Solicitor General also take
measures to protect the government and vindicate public interest from the
ill effects of the illegal disbursements of public funds made by reason of
the void Resolution and Contract.
7 Resolution dated 22 August 2006; Rollo (G.R. No. 159139, Vol. V), pp.
4127-4137.

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could have been too steep, the Court nonetheless

noted that “the essence of public bidding is violated by
the practice of requiring very high standards or
unrealistic specifications that cannot be met, x x x
only to water them down after the award is
made. Such scheme, which discourages the
entry of bona fide bidders, is in fact a sure
indication of fraud in the bidding, designed to
eliminate fair competition.”
3. The software program of the counting machines
likewise failed to detect previously downloaded
precinct results and to prevent them from being
reentered. This failure, which has not been corrected
x x x, would have allowed unscrupulous persons to
repeatedly feed into the computers the results
favorable to a particular candidate, an act that would
have translated into massive election fraud by just a
few key strokes.
4. Neither were the ACMs able to print audit trails
without loss of data — a mandatory requirement
under Section 7 of Republic Act No. 8436. Audit trails
would enable the Comelec to document the identities
of the ACM operators responsible for data entry and
downloading, as well as the times when the various
data were processed, in order to forestall fraud and to
identify the perpetrators. The absence of audit trails
would have posed a serious threat to free and credible
elections.
5. Comelec failed to explain satisfactorily why it
had ignored its own bidding rules and requirements.
It admitted that the software program used to test the
ACMs was merely a “demo” version, and that the final
one to be actually used in the elections was still being
developed. By awarding the Contract and irregularly
paying for the supply of the ACMs without having
seen — much less, evaluated — the final product
being purchased, Comelec desecrated the law on
public bidding. It would have allowed the winner to
alter its bid substantially, without any public bidding.

426

All in all, Comelec subverted the essence of public

bidding: to give the public an opportunity for fair
competition and a clear basis for a precise comparison
of bids.8 (Emphasis supplied)

As a consequence of the nullification of the automation
contract, We directed the Office of the Ombudsman to
determine the possible criminal liability of persons
responsible for the contract.9 This Court likewise directed
the Office of the Solicitor General to protect the
government from the ill effects of the illegal disbursement
of public funds in relation to the automation contract.10
After the declaration of nullity of the automation
contract, the following incidents transpired:
1. Private respondents in the 2004 case moved for
reconsideration of the 2004 Decision, but the motion
was denied by this Court in a Resolution dated 17
February 2004 (2004 Resolution);11
2. The COMELEC filed a “Most Respectful Motion
for Leave to Use the Automated Counting Machines
in the Custody of the Commission on Elections for use
in the 8 August 2005 Elections in the Autonomous
Region for Muslim Mindanao” dated 9 December 2004
(Motion for Leave to Use ACMs), which was denied by
this Court in its Resolution dated 15 June 2005 (2005
Resolution);
3. Atty. Romulo B. Macalintal (Macalintal) filed an
“Omnibus Motion for Leave of Court (1) to Reopen the
Case; and (2) to Intervene and Admit the Attached
Petition-in-Intervention,” which
_______________
8 Id.
9 Supra note 6.
10 Id.
11 Rollo (G.R. No. 159139, Vol. IV), pp. 3324-3339.

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was denied by this Court in its Resolution dated 22
August 2006 (2006 Resolution); and
4. Respondent MPEI filed a Complaint for
Damages12 (Complaint) with the RTC Makati, from
which the instant case arose.

The above mentioned incidents are discussed in more
detail below.
Background Proceedings
Private respondents’ Motion

for Reconsideration

Private respondents in the 2004 case moved for
reconsideration of the 2004 Decision. Aside from reiterating
the procedural and substantive arguments they had raised,
they also argued that the 2004 Decision had exposed them
to possible criminal prosecution.13
This Court denied the motion in its 2004 Resolution and
ruled that no prejudgment had been made on private
respondents’ criminal liability. We further ruled that
although the 2004 Decision stated that the Ombudsman
shall “determine the criminal liability, if any, of the public
officials (and conspiring private individuals, if any)
involved in the subject Resolution and Contract,” We did
not make any premature conclusion on any wrongdoing,
but precisely directed the Ombudsman to make that
determination after conducting appropriate proceedings
and observing due process.
Similarly, it appears from the record that several
criminal and administrative Complaints had indeed been
filed with the Ombudsman in relation to the declaration of
nullity of the
_______________
12 Rollo, pp. 153-169; pertaining to the case entitled Mega Pacific

eSolutions, Inc. v. Republic of the Philippines, docketed as Civil Case No.
04-346.
13 Supra note 11.

428


automation contract.14 The Complaints were filed
against several public officials and the individual
respondents in this case.15
_______________
14 Rollo, pp. 822-825. The four (4) cases are as follows:

(1) “Kilosbayan Foundation and Bantay Katarungan Foundation,
represented by Atty. Emilio C. Capulong, Jr. v. Benjamin Santos Abalos,
Resurreccion Zante Borra, Florentino Aglipay Tuason, Rufino San
Buenaventura Javier, Mehol Kiram Sadain, Luzviminda Gaba Tancangco,
Pablo Ralph Cabatian Lantion, Willy U. Yu, Bonnie S. Yu, Enrique T.
Tansipek, Pedro O. Tan, Johnson W. Fong and Laureano A. Barrios,”
docketed as OMB-L-C-04-0922-J, for violation of Sec. 3(e) and (g) of R.A.
No. 3019 and Sec. 2 of R.A. No. 7080;
(2) “Sen. Aquilino Q. Pimentel, Jr., Field Investigation Office (FIO)
Office of the Ombudsman, represented by Atty. Maria Olivia Elena A.
Roxas v. Benjamin Santos Abalos, Resurreccion Zante Borra, Florentino
Aglipay Tuason, Rufino San Buenaventura Javier, Mehol Kiram Sadain,
Luzviminda Gaba Tancangco, Pablo Ralph Cabatian Lantion, Eduardo
Dulay Mejos, Gideon Gillego de Guzman, Jose Parel Balbuena, Lamberto
Posadas Llamas, Bartolome Javillonar Sinocruz, Jr., Jose Marundan
Tolentino, Jr., Jaime Zita Paz, Zita Buena-Castillon, Rolando T. Viloria,
Willy U. Yu, Bonnie S. Yu, Enrique T. Tansipek, Pedro O. Tan, Johnson
W. Fong and Laureano A. Barrios,” docketed as OMB-L-C-04-0983-J, for
violation of Sec. 3(e) and (g) of R.A. No. 3019;
(3) “Sen. Aquilino Q. Pimentel, Jr. v. Luzviminda Gaba Tancangco,
Pablo Ralph Cabatian Lantion,” docketed as OMB-C-C-04-0011-A for
violation of Sec. 3(e) and (g) of R.A. No. 3019; and
(4) “Sen. Aquilino Q. Pimentel, Jr., Field Investigation Office (FIO)
Office of the Ombudsman, represented by Atty. Maria Olivia Elena A.
Roxas v. Eduardo Dulay Mejos, Gideon Gillego de Guzman, Jose Parel
Balbuena, Lamberto Posadas Llamas, Bartolome Javillonar Sinocruz, Jr.,
Jose Marundan Tolentino, Jr., Jaime Zita Paz, Zita Buena-Castillon,
Rolando T. Viloria,” docketed as OMB-L-A-04-0706-J for dishonesty, grave
misconduct and conduct prejudicial to the best interest of service.
15 Except Rosita Y. Tansipek and Bernard I. Fong, who have not been
impleaded.

429
VOL. 784, JUNE 27, 2016 429

In a Resolution issued on 28 June 2006,16 the

Ombudsman recommended the filing of informations before
the Sandiganbayan against some of the public officials and
the individual respondents17 for violation of Section 3(e) of
Republic Act No. 3019 (the Anti-Graft and Corrupt
Practices Act). However, on 27 September 2006,18 upon
reconsideration, the Ombudsman reversed its earlier ruling
in a Supplemental Resolution (September Resolution),
directing the dismissal of the criminal
_______________
16 Rollo (G.R. No. 174777, Vol. I), pp. 88-122. The pertinent portions of
the fallo are quoted below:
WHEREFORE, premises considered, it is respectfully recommended
that:
1. An Information for Violation of Section 3(e) of Republic Act No. 3019,
be filed before the Sandiganbayan against respondents EDUARDO
MEJOS, GIDEON G. DE GUZMAN, JOSE P. BALBUENA, LAMBERTO
P. LLAMAS and BARTOLOME J. SINOCRUZ, JR. in conspiracy with
private respondents WILLY U. YU, BONNIE YU, ENRIQUE TANSIPEK,
ROSITA Y. TANSIPEK, PEDRO O. TAN, JOHNSON W. FONG,
BERNARD L. FONG and LAUREANO BARRIOS;
x x x x
5. That further fact-finding investigation be conducted by this Office on
the following matters:
a. Charges involving violation of Section 3(g) of Republic Act No. 3019
and other pertinent laws;
b. On the criminal liability of all persons who may have conspired
with public officials in the subject contract;
c. On the culpability of other individuals who were not originally
charged in the complaints, but may have participated and benefited in the
awarding of the subject Contract; and
d. The disbursement of public funds made on account of the void
Resolution and Contract.
17 Including Rosita Y. Tansipek and Bernard I. Fong.
18 Rollo, pp. 825-826.

430

cases against the public officials, as well as the

individual respondents, for lack of probable cause.19
With this development, a Petition for Certiorari was
filed with this Court on 13 October 2006 and docketed as
G.R. No. 174777.20 In the Petition, several
individuals21 assailed the September Resolution of the
Ombudsman finding no probable cause to hold respondents
criminally liable. The case remains pending with this Court
as of this date.
COMELEC’s Motion for Leave to

Use ACMs in the ARMM Elections

The COMELEC filed a motion with this Court
requesting permission to use the 1,991 ACMs previously
delivered by respondent MPEI, for the ARMM elections,
then slated to be held on 8 August 2005. In its motion, the
COMELEC claimed that automation of the ARMM
elections was mandated by Republic Act No. 9333, and
since the government had no
_______________
19 Id., at pp. 822-876. The dispositive portion states:

WHEREFORE, the Office recommends the following:
1. That the Resolution dated 28 June 2006 be REVERSED and SET
ASIDE.
2. That the criminal complaints against public and private respondents
be DISMISSED for lack of probable cause.
3. That the administrative complaint against public respondents be
DISMISSED.
4. That the matter of the editorial article appearing in the July 2006
issue of Kilosbayan by Former Senator Jovito R. Salonga be REFERRED
to the Internal Affairs Board for investigation
20 See Rollo (G.R. No. 174777, Vol. I), p. 3; entitled Sen. Aquilino Q.
Pimentel, Jr. v. Omb. Ma. Merceditas N. Gutierrez.
21 Id.; including Sen. Aquilino Q. Pimentel, Jr., Sergio L. Osmeña III,
Panfilo M. Lacson, Alfredo S. Lim, Jamby A.S. Madrigal, Luisa P.
Ejercito-Estrada, Jinggoy E. Estrada, Rodolfo G. Biazon and Richard F.
Gordon.

431
VOL. 784, JUNE 27, 2016 431

available funds to finance the automation of those

elections, the ACMs could be utilized for the 2005 elections.
This Court denied the Motion in Our 2005 Resolution.
We ruled that allowing the use of the ACMs would have the
effect of illegally reversing and subverting a final decision
We had promulgated. We further ruled that the COMELEC
was asking for permission to do what it had precisely been
prohibited from doing under the 2004 Decision. This Court
also ruled that the grant of the motion would bar or
jeopardize the recovery of government funds paid to
respondents. Considering that the COMELEC did not
present any evidence to prove that the defects had been
addressed, We held that the use of the ACMs and the
software would expose the ARMM elections to the same
electoral ills pointed out in the 2004 Decision.
Atty. Macalintal’s Omnibus Motion

Atty. Romulo Macalintal sought to reopen the 2004 case
in order that he may be allowed to intervene as a taxpayer
and citizen. His purpose for intervening was to seek
another testing of the ACMs with the ultimate objective of
allowing the COMELEC to use them, this time for the 2007
national elections.
This Court denied his motion in Our 2006 Resolution,
ruling that Atty. Macalintal failed to demonstrate that
certain supervening events and legal circumstances had
transpired to justify the reliefs sought. We in fact found
that, after Our determination that the ACMs had failed to
pass legally mandated technical requirements in 2004, they
were simply put in storage. The ACMs had remained idle
and unused since the last evaluation, at which they failed
to hurdle crucial tests. Consequently, We ruled that if the
ACMs were not good enough for the 2004 national elections
or the 2005 ARMM elections, then neither would they be
good enough for the 2007 national elections, considering
that nothing was done to correct the flaws that had been
previously underscored in the

432

2004 Decision. We held that granting the motion would

be tantamount to rendering the 2004 Decision totally
ineffective and nugatory.
Moreover, because of our categorical ruling that the
whole bidding process was void and fraudulent, the
proposal to use the illegally procured, demonstratively
defective, and fraud-prone ACMs was rendered
nonsensical. Thus:
We stress once again that the Contract entered into by the

Comelec for the supply of the ACMs was declared VOID by the
Court in its Decision, because of clear violations of law and
jurisprudence, as well as the reckless disregard by the
Commission of its own bidding rules and procedure. In addition,
the poll body entered into the Contract with inexplicable haste,
without adequately checking and observing mandatory financial,
technical and legal requirements. As explained in our Decision,
Comelec’s gravely abusive acts consisted of the following:
x x x x
To muddle the issue, Comelec keeps on saying that the
“winning” bidder presented a lower price than the only
other bidder. It ignored the fact that the whole bidding
process was VOID and FRAUDULENT. How then could
there have been a “winning” bid?22 (Emphasis supplied)

The Instant Case
Complaint for Damages filed by

respondents with the RTC Makati
and petitioner’s Answer with
Counterclaim, with an application
for a writ of preliminary attachment,
from which the instant case arose
_______________
22 Supra note 7 at pp. 4132-4134.

433
VOL. 784, JUNE 27, 2016 433

Upon the finality of the declaration of nullity of the

automation contract, respondent MPEI filed a Complaint
for Damages before the RTC Makati, arguing that,
notwithstanding the nullification of the automation
contract, the COMELEC was still bound to pay the amount
of P200,165,681.89. This amount represented the difference
between the value of the ACMs and the support services
delivered on one hand, and on the other, the payment
previously made by the COMELEC.23
Petitioner filed its Answer with Counterclaim24 and
argued that respondent MPEI could no longer recover the
unpaid balance from the void automation contract, since
the payments made were illegal disbursements of public
funds. It contended that a null and void contract vests no
rights and creates no obligations, and thus produces no
legal effect at all. Petitioner further posited that
respondent MPEI could not hinge its claim upon the
principles of unjust enrichment and quasi-contract, because
such presume that the acts by which the authors thereof
become obligated to each other are lawful, which was not
the case herein.25
By way of a counterclaim, petitioner demanded from
respondents the return of the payments made pursuant to
the automation contract.26 It argued that individual
respondents, being the incorporators of MPEI, likewise
ought to be impleaded and held accountable for MPEI’s
liabilities. The creation of MPC was, after all, merely an
ingenious scheme to feign eligibility to bid.27
Pursuant to Section 1(d) of Rule 57 of the Rules of Court,
petitioner prayed for the issuance of a writ of preliminary
attachment against the properties of MPEI and individual
respondents. The application was grounded upon the
fraudu-
_______________
23 Rollo, pp. 161-163.

24 Id., at pp. 170-195.
25 Id., at pp. 185-187.
26 Id., at pp. 190-192.
27 Id., at pp. 191-192 & 196-200.

434

lent misrepresentation of respondents as to their

eligibility to participate in the bidding for the COMELEC
automation project and the failure of the ACMs to comply
with mandatory technical requirements.28
Subsequently, the trial court denied the prayer for the
issuance of a writ of preliminary attachment,29 ruling that
there was an absence of factual allegations as to how the
fraud was actually committed.
The allegations of petitioner were found to be unreliable,
as the latter merely copied from the declarations of the
Supreme Court in Information Technology Foundation of
the Phils. v. COMELEC the factual allegations of MPEI’s
lack of qualification and noncompliance with bidding
requirements. The trial court further ruled that the
allegations of fraud on the part of MPEI were not
supported by the COMELEC, the office in charge of
conducting the bidding for the election automation
contract. It was likewise held that there was no evidence
that respondents harbored a preconceived plan not to
comply with the obligation; neither was there any evidence
that MPEI’s corporate fiction was used to perpetrate fraud.
Thus, it found no sufficient basis to pierce the veil of
corporate fiction or to cause the attachment of the
properties owned by individual respondents.
Petitioner moved to set aside the trial court’s Order
denying the writ of attachment,30 but its motion was
denied.31
Appeal before the CA

and the First Decision

Aggrieved, petitioner filed an appeal with the CA,
arguing that the trial court had acted with grave abuse of
discretion in denying the application for a writ of
attachment.
_______________
28 Id., at pp. 201-211.

29 Order dated 28 March 2006; id., at pp. 213-214.
30 Id., at pp. 215-226.
31 Id., at p. 227.

435
VOL. 784, JUNE 27, 2016 435

As mentioned earlier, the CA in its First

Decision32 reversed and set aside the trial court’s Orders
and ruled that there was sufficient basis for the issuance of
a writ of attachment in favor of petitioner.
The appellate court explained that the averments of
petitioner in support of the latter’s application actually
reflected pertinent conclusions reached by this Court in its
2004 Decision. It held that the trial court erred in
disregarding the following findings of fact, which remained
unaltered and unreversed: (1) COMELEC bidding rules
provided that the eligibility and capacity of a bidder may be
proved through financial documents including, among
others, audited financial statements for the last three
years; (2) MPEI was incorporated only on 27 February
2003, or 11 days prior to the bidding itself; (3) in an
attempt to disguise its ineligibility, MPEI participated in
the bidding as lead company of MPC, a putative
consortium, and submitted the incorporation papers and
financial statements of the members of the consortium; and
(4) no proof of the joint venture agreement, consortium
agreement, memorandum of agreement, or business plan
executed among the members of the purported consortium
was ever submitted to the COMELEC.33
According to the CA, the foregoing were glaring indicia
or badges of fraud, which entitled petitioner to the issuance
of the writ. It further ruled that there was sufficient reason
to pierce the corporate veil of MPEI. Thus, the CA allowed
the attachment of the properties belonging to both MPEI
and individual respondents.34 The CA likewise ruled that
even if the COMELEC committed grave abuse of discretion
in capriciously disregarding the rules on public bidding,
this should not preclude or deter petitioner from pursuing
its claim
_______________
32 Id., at pp. 293-302.

33 Id., at pp. 299-300.
34 Id., at p. 300.

436

against respondents. After all, the State is not estopped

by the mistake of its officers and employees.35
Respondents moved for reconsideration36 of the First
Decision of the CA.
Motion for Reconsideration before

the CA and the Amended Decision

Upon review, the CA reconsidered its First
Decision37 and directed the remand of the case to the RTC
Makati for the reception of evidence of allegations of fraud
and to determine whether attachment should necessarily
issue.38
The CA explained in its Amended Decision that
respondents could not be considered to have fostered a
fraudulent intent to dishonor their obligation, since they
had delivered 1,991 units of ACMs.39 It directed petitioner
to present proof of respondents’ intent to defraud
COMELEC during the execution of the automation
contract.40 The CA likewise emphasized that the Joint
Affidavit submitted in support of petitioner’s application
for the writ contained allegations that needed to be
substantiated.41 It added that proof must likewise be
adduced to verify the requisite fraud that would justify the
piercing of the corporate veil of respondent MPEI.42
The CA further clarified that the 2004 Decision did not
make a definite finding as to the identities of the persons
responsible for the illegal disbursement or of those who
par-
_______________
35 Id., at p. 301.
36 Id., at pp. 303-330 & 331-352.
37 Id., at pp. 31-36.
38 Id., at p. 36.
39 Id., at p. 32.
40 Id., at p. 33.
41 Id.
42 Id.

437
VOL. 784, JUNE 27, 2016 437

ticipated in the fraudulent dealings.43 It instructed the

trial court to consider, in its determination of whether the
writ of attachment should issue, the illegal, imprudent and
hasty acts in awarding the automation contract by the
COMELEC. In particular, these acts consisted of: (1)
awarding the automation contract to MPC, an entity that
did not participate in the bidding; and (2) signing the
actual automation contract with respondent MPEI, the
company that joined the bidding without meeting the
eligibility requirement.44
Rule 45 Petition before Us

Consequently, petitioner filed the instant Rule 45
Petition,45 arguing that the CA erred in ordering the
remand of the case to the trial court for the reception of
evidence to determine the presence of fraud. Petitioner
contends that this Court’s 2004 Decision was sufficient
proof of the fraud committed by respondents in the
execution of the voided automation contract.46 Respondents
allegedly committed fraud by securing the automation
contract, although MPEI was not qualified to bid in the
first place.47 Their claim that the members of MPC bound
themselves to the automation contract was an indication of
bad faith as the contract was executed by MPEI
alone.48 Neither could they deny that the software
submitted during the bidding process was not the same one
that would be used on election day.49 They could not
dissociate themselves from telltale signs such as
purportedly supplying software that later turned out to be
nonexistent.50
_______________
43 Id.
44 Id., at p. 34.
45 Id., at pp. 10-30.
46 Id., at p. 19.
47 Id., at p. 22.
48 Id., at p. 23.
49 Id., at p. 24.
50 Id.

438

In their respective Comments, respondents Willy Yu,

Bonnie Yu, Enrique Tansipek, and Rosita Tansipek
counter51 that this Court never ruled that individual
respondents were guilty of any fraud or bad faith in
connection with the automation contract, and that it was
incumbent upon petitioner to present evidence on the
allegations of fraud to justify the issuance of the
writ.52 They likewise argue that the 2004 Decision cannot
be invoked against them, since petitioner and MPEI were
corespondents in the 2004 case and not adverse parties
therein.53 Respondents further contend that the allegations
of fraud are belied by their actual delivery of 1,991 units of
ACMs to the COMELEC, which they claim is proof that
they never had any intention to evade performance.54
They further allege that this Court, in its 2004 Decision,
even recognized that it had not found any wrongdoing on
their part, and that the Ombudsman had already made a
determination that no probable cause existed with respect
to charges of violation of Anti-Graft and Corrupt Practices
Act.55
Echoing the other respondents’ arguments on the lack of
particularity in the allegations of fraud,56 respondents
MPEI, Johnson Wong, Bernard Fong, Pedro Tan, and
Lauriano Barrios likewise argue that they were not parties
to the 2004 case; thus, the 2004 Decision thereon is not
binding on them.57 Individual respondents likewise argue
that the findings of fact in the 2004 Decision were not
conclusive,58 considering that eight (8) of the fifteen (15)
justices allegedly refused to go along with the factual
findings as stated in the
_______________
51 Id., at pp. 793-821.

52 Id., at pp. 795-796.
53 Id., at pp. 801-803.
54 Id., at pp. 817-819.
55 Id., at pp. 807-808.
56 Id., at pp. 884-886.
57 Id., at pp. 906-915.
58 Id., at pp. 897-903.

439
VOL. 784, JUNE 27, 2016 439

majority opinion.59 Thereafter, petitioner filed its Reply

to the Comments.60
Based on the submissions of both parties, the following
issues are presented to this Court for resolution:
1. Whether petitioner has sufficiently established
fraud on the part of respondents to justify the
issuance of a writ of preliminary attachment in its
favor; and
2. Whether a writ of preliminary attachment may
be issued against the properties of individual
respondents, considering that they were not parties to
the 2004 case.

The Court’s Ruling

The Petition is meritorious. A writ of preliminary
attachment should issue in favor of petitioner over the
properties of respondents MPEI, Willy Yu (Willy) and the
remaining individual respondents, namely: Bonnie S. Yu
(Bonnie), Enrique T. Tansipek (Enrique), Rosita Y.
Tansipek (Rosita), Pedro O. Tan (Pedro), Johnson W. Fong
(Johnson), Bernard I. Fong (Bernard), and Lauriano
Barrios (Lauriano). The bases for the writ are the
following:
1. Fraud on the part of respondent MPEI was
sufficiently established by the factual findings of this
Court in its 2004 Decision and subsequent
pronouncements.
2. A writ of preliminary attachment may issue over
the properties of the individual respondents using the
doctrine of piercing the corporate veil.
_______________
59 Id., at p. 902.
60 Id., at pp. 924-934.

440

3. The factual findings of this Court that have

become final cannot be modified or altered, much less
reversed, and are controlling in the instant case.
4. The delivery of 1,991 units of ACMs does not
negate fraud on the part of respondents MPEI and
Willy.
5. Estoppel does not lie against the state when it
acts to rectify mistakes, errors or illegal acts of its
officials and agents.
6. The findings of the Ombudsman are not
controlling in the instant case.

Discussion

I.
Fraud on the part of respondent MPEI was

sufficiently established by the factual findings of
this Court in the latter’s 2004 Decision and
subsequent pronouncements.
Petitioner argues that the findings of this Court in the
2004 Decision serve as sufficient basis to prove that, at the
time of the execution of the automation contract, there was
fraud on the part of respondents that justified the issuance
of a writ of attachment. Respondents, however, argue the
contrary. They claim that fraud had not been sufficiently
established by petitioner.
We rule in favor of petitioner. Fraud on the part of
respondents MPEI and Willy, as well as of the other
individual respondents — Bonnie, Enrique, Rosita, Pedro,
Johnson, Bernard, and Lauriano — has been established.
A writ of preliminary attachment is a provisional
remedy issued upon the order of the court where an action
is pending. Through the writ, the property or properties of
the defendant may be levied upon and held thereafter by
the sheriff as security for the satisfaction of whatever
judgment might be se-

441
VOL. 784, JUNE 27, 2016 441

cured by the attaching creditor against the defendant.61

The provisional remedy of attachment is available in order
that the defendant may not dispose of the property
attached, and thus prevent the satisfaction of any
judgment that may be secured by the plaintiff from the
former.62
The purpose and function of an attachment or
garnishment is twofold. First, it seizes upon property of an
alleged debtor in advance of final judgment and holds it
subject to appropriation, thereby preventing the loss or
dissipation of the property through fraud or other means.
Second, it subjects the property of the debtor to the
payment of a creditor’s claim, in those cases in which
personal service upon the debtor cannot be obtained.63 This
remedy is meant to secure a contingent lien on the
defendant’s property until the plaintiff can, by appropriate
proceedings, obtain a judgment and have the property
applied to its satisfaction, or to make some provision for
unsecured debts in cases in which the means of satisfaction
thereof are liable to be removed beyond the jurisdiction, or
improperly disposed of or concealed, or otherwise placed
beyond the reach of creditors.64
Petitioner relied upon Section 1(d), Rule 57 of the Rules
of Court as basis for its application for a writ of preliminary
attachment. This provision states:

Section 1. Grounds upon which attachment may
issue.—At the commencement of the action or at any
time before entry of judgment, a plaintiff or any
proper party may have the property of the adverse
party attached as security for the satisfaction of any
judgment that may be recovered in the following
cases:
x x x x
_______________
61 Virata v. Aquino, 152 Phil. 405; 53 SCRA 24 (1973).

62 Adlawan v. Tomol, 262 Phil. 893; 184 SCRA 31 (1990).
63 Id.
64 Id.

442

(d) In an action against a party who has been
guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is
brought, or in the performance thereof. (Emphasis
supplied)

For a writ of preliminary attachment to issue under the
above quoted rule, the applicant must sufficiently show the
factual circumstances of the alleged fraud.65 In Metro, Inc.
v. Lara’s Gift and Decors, Inc.,66 We explained:
To sustain an attachment on this ground, it
must be shown that the debtor in contracting
the debt or incurring the obligation intended to
defraud the creditor. The fraud must relate to
the execution of the agreement and must
have been the reason which induced the
other party into giving consent which he
would not have otherwise given. To
constitute a ground for attachment in Section
1(d), Rule 57 of the Rules of Court, fraud should
be committed upon contracting the obligation
sued upon. A debt is fraudulently contracted if
at the time of contracting it the debtor has a
preconceived plan or intention not to pay, as it is
in this case. x x x.
The applicant for a writ of preliminary attachment
must sufficiently show the factual circumstances of
the alleged fraud because fraudulent intent cannot be
inferred from the debtor’s mere nonpayment of the
debt or failure to comply with his obligation.
(Emphasis supplied)
_______________
65 Metro, Inc. v. Lara’s Gifts and Decors, Inc., 621 Phil. 162; 606 SCRA
175 (2009).
66 Id., citing Liberty Insurance Corporation v. Court of Appeals, G.R.
No. 104405, 13 May 1993, 222 SCRA 37, 45.

443
VOL. 784, JUNE 27, 2016 443

An amendment to the Rules of Court added the phrase

“in the performance thereof” to include within the scope of
the grounds for issuance of a writ of preliminary
attachment those instances relating to fraud in the
performance of the obligation.67
Fraud is a generic term that is used in various senses
and assumes so many different degrees and forms that
courts are compelled to content themselves with
comparatively few general rules for its discovery and
defeat. For the same reason, the facts and circumstances
peculiar to each case are allowed to bear heavily on the
conscience and judgment of the court or jury in
determining the presence or absence of fraud. In fact, the
fertility of man’s invention in devising new schemes of
fraud is so great that courts have always declined to define
it, thus, reserving for themselves the liberty to deal with it
in whatever form it may present itself.68
Fraud may be characterized as the voluntary execution
of a wrongful act or a wilful omission, while knowing and
intending the effects that naturally and necessarily arise
from that
_______________
67 Liberty Insurance Corporation v. Court of Appeals, id., citing Old

Sec. 1(d), Rule 57 of the Rules of Court:
“In an action against a party who has been guilty of fraud in
contracting the debt or incurring the obligation upon which the action is
brought, Section 1(d) of Rule 57 authorizes the plaintiff or any proper
party to have the property of the adverse party attached as security for
the satisfaction of any judgment that may be recovered therein. Thus:
‘Rule 57, Sec. 1. Grounds upon which attachment may issue.—
(d) In an action against a party who has been guilty of a fraud in
contracting the debt or incurring the obligation upon which the action is
brought, or in concealing or disposing of the property for the taking,
detention or conversion of which the action is brought.”’
68 37 Am. Jur. 2d Fraud and Deceit § 1 (1968).

444

act or omission.69 In its general sense, fraud is deemed

to comprise anything calculated to deceive — including all
acts and omission and concealment involving a breach of
legal or equitable duty, trust, or confidence justly reposed
— resulting in damage to or in undue advantage over
another.70 Fraud is also described as embracing all
multifarious means that human ingenuity can device, and
is resorted to for the purpose of securing an advantage over
another by false suggestions or by suppression of truth; and
it includes all surprise, trick, cunning, dissembling, and
any other unfair way by which another is cheated.71
While fraud cannot be presumed, it need not be proved
by direct evidence and can well be inferred from attendant
circumstances.72 Fraud by its nature is not a thing
susceptible of ocular observation or readily demonstrable
physically; it must of necessity be proved in many cases by
inferences from circumstances shown to have been involved
in the transaction in question.73
In the case at bar, petitioner has sufficiently discharged
the burden of demonstrating the commission of fraud by
respondent MPEI in the execution of the automation
contract in the two ways that were enumerated earlier and
discussed below:
A. Respondent MPEI had perpe-

trated a scheme against petitioner
to secure the automation contract
by using MPC as supposed bidder
and eventually succeeding in sign-
_______________
69 International Corporate Bank v. Gueco, 404 Phil. 353; 351 SCRA

516 (2001).
70 Ortega v. People, 595 Phil. 1103; 575 SCRA 519 (2008).
71 Republic v. Estate of Alfonso Lim, Sr., 611 Phil. 37; 593 SCRA 404
(2009).
72 Godinez v. Alano, 362 Phil. 597; 303 SCRA 259 (1999).
73 37 Am. Jur. 2d Fraud and Deceit § 439 (1968).

445
VOL. 784, JUNE 27, 2016 445

ing the automation contract as

MPEI alone, an entity which was
ineligible to bid in the first place.

To avoid any confusion relevant to the basis of fraud, We
quote herein the pertinent portions of this Court’s 2004
Decision with regard to the identity, existence, and
eligibility of MPC as bidder:74

On the question of the identity and the existence of
the real bidder, respondents insist that, contrary to
petitioners’ allegations, the bidder was not Mega
Pacific eSolutions, Inc. (MPEI), which was
incorporated only on February 27, 2003, or 11
days prior to the bidding itself. Rather, the bidder
was Mega Pacific Consortium (MPC), of which MPEI
was but a part. As proof thereof, they point to the
March 7, 2003 letter of intent to bid, signed by the
president of MPEI allegedly for and on behalf of MPC.
They also call attention to the official receipt issued to
MPC, acknowledging payment for the bidding
documents, as proof that it was the “consortium” that
participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed
by only one signatory — “Willy U. Yu, President,
Mega Pacific eSolutions, Inc., (Lead
Company/Proponent) For: Mega Pacific Consortium”
— and without any further proof, does not by itself
prove the existence of the consortium. It does not
show that MPEI or its president have been duly pre-
authorized by the other members of the putative
consortium to represent them, to bid on their
collective behalf and, more important, to commit them
jointly and severally to the bid undertakings. The
letter is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC,
acknowledging payment for the bidding documents,
constitute proof that it was the purported consortium
that par-
_______________
74 Information Technology Foundation of the Philippines v.

Commission on Elections, supra note 1 at pp. 209-226; pp. 164-180.

446

ticipated in the bidding. Such receipts are issued

by cashiers without any legally sufficient inquiry as to
the real identity or existence of the supposed payor.
To assure itself properly of the due existence (as
well as eligibility and qualification) of the putative
consortium, Comelec’s BAC should have examined the
bidding documents submitted on behalf of MPC. They
would have easily discovered the following fatal flaws.
x x x x
The Eligibility Envelope was to contain legal
documents such as articles of incorporation, x x x to
establish the bidder’s financial capacity.
In the case of a consortium or joint venture
desirous of participating in the bidding, it goes
without saying that the Eligibility Envelope would
necessarily have to include a copy of the joint venture
agreement, the consortium agreement or
memorandum of agreement — or a business plan or
some other instrument of similar import —
establishing the due existence, composition and scope
of such aggrupation. Otherwise, how would Comelec
know who it was dealing with, and whether these
parties are qualified and capable of delivering the
products and services being offered for bidding?
In the instant case, no such instrument was
submitted to Comelec during the bidding
process. x x x
x x x x
However, there is no sign whatsoever of any
joint venture agreement, consortium
agreement, memorandum of agreement, or
business plan executed among the members of
the purported consortium.
The only logical conclusion is that no such
agreement was ever submitted to the Comelec
for its consideration, as part of the bidding
process.
It thus follows that, prior the award of the
Contract, there was no documentary or other
basis for Comelec to conclude that a consortium
had

447
VOL. 784, JUNE 27, 2016 447

actually been formed amongst MPEI, SK C&C

and WeSolv, along with Election.com and
ePLDT. Neither was there anything to indicate the
exact relationships between and among these firms;
their diverse roles, undertakings and prestations, if
any, relative to the prosecution of the project, the
extent of their respective investments (if any) in the
supposed consortium or in the project; and the precise
nature and extent of their respective liabilities with
respect to the contract being offered for bidding. And
apart from the self-serving letter of March 7, 2003,
there was not even any indication that MPEI was the
lead company duly authorized to act on behalf of the
others.
x x x x
Hence, had the proponent MPEI been
evaluated based solely on its own experience,
financial and operational track record or lack
thereof, it would surely not have qualified and
would have been immediately considered
ineligible to bid, as respondents readily admit.
x x x x
At this juncture, one might ask: What, then, if
there are four MOAs instead of one or none at all?
Isn’t it enough that there are these corporations
coming together to carry out the automation project?
Isn’t it true, as respondent aver, that nowhere in the
RFP issued by Comelec is it required that the
members of the joint venture execute a single written
agreement to prove the existence of a joint venture.
x x x
x x x x
The problem is not that there are four agreements
instead of only one. The problem is that Comelec never
bothered to check. It never based its decision on
documents or other proof that would concretely
establish the existence of the claimed consortium or
joint venture or agglomeration.
x x x x

448

True, copies of financial statements and

incorporation papers of the alleged “consortium”
members were submitted. But these papers did not
establish the existence of a consortium, as they could
have been provided by the companies concerned for
purposes other than to prove that they were part of a
consortium or joint venture.
x x x x
In brief, despite the absence of competent
proof as to the existence and eligibility of the
alleged consortium (MPC), its capacity to
deliver on the Contract, and the members’ joint
and several liability therefor, Comelec
nevertheless assumed that such consortium
existed and was eligible. It then went ahead and
considered the bid of MPC, to which the
Contract was eventually awarded, in gross
violation of the former’s own bidding rules and
procedures contained in its RFP. Therein lies
Comelec’s grave abuse of discretion.

Sufficiency of the Four Agreements

Instead of one multilateral agreement executed by,
and effective and binding on, all the five “consortium
members” — as earlier claimed by Commissioner
Tuason in open court — it turns out that what was
actually executed were four (4) separate and distinct
bilateral Agreements. Obviously, Comelec was
furnished copies of these Agreements only after
the bidding process had been terminated, as
these were not included in the Eligibility
Documents. x x x
x x x x
At this point, it must be stressed most
vigorously that the submission of the four
bilateral Agreements to Comelec after the end of
the bidding process did nothing to eliminate the
grave abuse of discretion it had already
committed on April 15, 2003.

449
VOL. 784, JUNE 27, 2016 449

Deficiencies Have Not Been “Cured”

In any event, it is also claimed that the automation
Contract awarded by Comelec incorporates all
documents executed by the “consortium” members,
even if these documents are not referred to therein.
x x x
x x x x
Thus, it is argued that whatever perceived
deficiencies there were in the supplementary
contracts — those entered into by MPEI and the other
members of the “consortium” as regards their joint
and several undertakings — have been cured. Better
still, such deficiencies have supposedly been
prevented from arising as a result of the above quoted
provisions, from which it can be immediately
established that each of the members of MPC
assumes the same joint and several liability as the
other members.
The foregoing argument is unpersuasive. First,
the contract being referred to, entitled “The
Automated Counting and Canvassing Project
Contract,” is between Comelec and MPEI, not
the alleged consortium, MPC. To repeat, it
is MPEI — not MPC — that is a party to the
Contract. Nowhere in that Contract is there any
mention of a consortium or joint venture, of
members thereof, much less of joint and several
liability. Supposedly executed sometime in May
2003, the Contract bears a notarization date of
June 30, 2003, and contains the signature of
Willy U. Yu signing as president of MPEI (not
for and on behalf of MPC), along with that of
the Comelec chair. It provides in Section 3.2
that MPEI (not MPC) is to supply the
Equipment and perform the Services under the
Contract, in accordance with the appendices
thereof; nothing whatsoever is said about any
consortium or joint venture or partnership.
x x x x

Eligibility of a Consortium Based on the Collective
Qualifications of Its Members

450
Respondents declare that, for purposes of assessing

the eligibility of the bidder, the members of MPC
should be evaluated on a collective basis. Therefore,
they contend, the failure of MPEI to submit
financial statements (on account of its recent
incorporation) should not by itself disqualify
MPC, since the other members of the
“consortium” could meet the criteria set out in
the RFP.
x x x x
Unfortunately, this argument seems to assume
that the “collective” nature of the undertaking of the
members of MPC, their contribution of assets and
sharing of risks, and the “community” of their interest
in the performance of the Contract entitle MPC to be
treated as a joint venture or consortium; and to be
evaluated accordingly on the basis of the members’
collective qualifications when, in fact, the evidence
before the Court suggest otherwise.
x x x x
Going back to the instant case, it should be
recalled that the automation Contract with
Comelec was not executed by the “consortium”
MPC — or by MPEI for and on behalf of MPC —
but by MPEI, period. The said Contract contains
no mention whatsoever of any consortium or
members thereof. This fact alone seems to
contradict all the suppositions about a joint
undertaking that would normally apply to a
joint venture or consortium: that it is a
commercial enterprise involving a community
of interest, a sharing of risks, profits and losses,
and so on.
x x x x
To the Court, this strange and beguiling
arrangement of MPEI with the other companies does
not qualify them to be treated as a consortium or joint
venture, at least of the type that government agencies
like the Comelec should be dealing with. With more
reason is it unable to agree to the proposal to evaluate
the members of MPC on a collective basis. (Emphases
supplied)

451
VOL. 784, JUNE 27, 2016 451

These findings found their way into petitioner’s

application for a writ of preliminary attachment,75 in which
it claimed the following as bases for fraud: (1) respondents
committed fraud by securing the election automation
contract and, in order to perpetrate the fraud, by
misrepresenting the actual bidder as MPC and MPEI as
merely acting on MPC’s behalf; (2) while knowing that
MPEI was not qualified to bid for the automation contract,
respondents still signed and executed the contract; and (3)
respondents acted in bad faith when they claimed that they
had bound themselves to the automation contract, because
it was not executed by MPC — or by MPEI on MPC’s behalf
— but by MPEI alone.76
_______________
75 Rollo, pp. 201-211.

76 Id., at pp. 203-205, 211; Petitioner’s allegations in its application for
the issuance of a writ of preliminary attachment are as follows:
4. Indeed, plaintiff and defendants-in-counterclaim committed fraud
by securing the election automation contract even if MPEI (plaintiff) was
not qualified to bid for the said contract. To perpetrate the said fraud,
plaintiff and defendants-in-counterclaim misrepresented that the actual
bidder was Mega Pacific Consortium, and that MPEI (plaintiff) was only
acting on behalf of MPC. x x x. Anent plaintiff’s claim that the MPC
members bound themselves under the election automation contract,
suffice it to say that the Supreme Court held that “the automation
Contract with Comelec was not executed by the ‘consortium’ MPC — or by
MPEI (plaintiff) for and in behalf of MPC — but by MPEI (plaintiff),
period. The said Contract contains no mention whatsoever of any
consortium or members thereof.”
5. Both plaintiff and defendants-in-counterclaim knew that
plaintiff was not qualified to bid for the election automation
contract. In fact, the Supreme Court clearly declared that “had the
proponent MPEI (plaintiff) been evaluated based solely on its own
experience, financial and operational track record or lack thereof, it would
surely not have qualified and would have been immediately considered
ineligible to bid, as respondents readily admit.” This notwithstanding,
plaintiff still bidded for the elec-

452

We agree with petitioner that respondent MPEI

committed fraud by securing the election automation
contract; and, in order to perpetrate the fraud, by
misrepresenting that the actual bidder was MPC and not
MPEI, which was only acting on behalf of MPC. We
likewise rule that respondent MPEI has defrauded
petitioner, since the former still executed the automation
contract despite knowing that it was not qualified to bid for
the same.
The established facts surrounding the eligibility,
qualification and existence of MPC — and of MPEI for that
matter — and the subsequent execution of the automation
contract with the latter, when all taken together, constitute
badges of fraud that We simply cannot ignore. MPC was
considered an illegitimate entity, because its existence as a
joint venture had not been established. Notably, the
essential document/s that would have shown its eligibility
as a joint venture/consortium were not presented to the
COMELEC at the most opportune time, that is, during the
qualification stage of the bidding process. The concealment
by respondent MPEI of the essential documents showing
its eligibility to bid as part a joint venture is too obvious to
be missed. How could it not have known that the very
document showing MPC as a joint venture should have
been included in their eligibility envelope?
Likewise notable is the fact that these supposed
agreements, allegedly among the supposed consortium
members, were belatedly provided to the
COMELEC after the bidding
_______________
tion automation contract; signed the same; and implemented,

albeit partially, the provisions thereof.
x x x x
4. Plaintiff Mega Pacific eSolutions, Inc. and defendants-in-
counterclaim Willy Yu, et al. committed fraud in securing the
automation contract even if the bid for the same was not awarded
to them, but to an ineligible consortium Mega Pacific Consortium;
and that said plaintiff, while it was the one which signed the
voided automation contract, was ineligible to bid for the same.
(Emphases supplied)

453
VOL. 784, JUNE 27, 2016 453

process had been terminated; these were not included in
the Eligibility Documents earlier submitted by MPC.
Similarly, as found by this Court, these documents did not
prove any joint venture agreement among the parties in
the first place, but were actually individual agreements
executed by each member of the supposed consortium with
respondent MPEI.
More startling to the dispassionate mind is the
incongruence between the supposed actual bidder MPC, on
one hand, and, on the other, respondent MPEI, which
executed the automation contract. Significantly,
respondent MPEI was not even eligible and qualified to bid
in the first place; and yet, the automation contract itself
was executed and signed singly by respondent MPEI, not
on behalf of the purported bidder MPC, without any
mention whatsoever of the members of the supposed
consortium.
From these established facts, We can surmise that in
order to secure the automation contract, respondent MPEI
perpetrated a scheme against petitioner by using MPC as
supposed bidder and eventually succeeding in signing the
automation contract as MPEI alone. Worse, it was
respondent MPEI alone, an entity that was ineligible to bid
in the first place, that eventually executed the automation
contract.
To a reasonable mind, the entire situation reeks of
fraud, what with the misrepresentation of identity and
misrepresentation as to creditworthiness. It is in these
kinds of fraudulent instances, when the ability to abscond
is greatest, to which a writ of attachment is precisely
responsive.
Further, the failure to attach the eligibility documents is
tantamount to failure on the part of respondent MPEI to
disclose material facts. That omission constitutes fraud.

454

Pursuant to Article 1339 of the Civil Code,77 silence or

concealment does not, by itself, constitute fraud, unless
there is a special duty to disclose certain facts, or unless
the communication should be made according to good faith
and the usages of commerce.78
Fraud has been defined to include an inducement
through insidious machination. Insidious machination
refers to a deceitful scheme or plot with an evil or devious
purpose. Deceit exists where the party, with intent to
deceive, conceals or omits to state material facts and,
by reason of such omission or concealment, the other party
was induced to give consent that would not otherwise have
been given.79
One form of inducement is covered within the scope of
the crime of estafa under Article 315, paragraph 2 of the
Revised Penal Code, in which, any person who defrauds
another by using fictitious name, or falsely pretends to
possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of
similar deceits executed prior to or simultaneously with the
commission of fraud is held criminally liable. In Joson v.
People,80 this Court explained the element of defraudation
by means of deceit, by giving a definition of fraud and
deceit, in this wise:
What needs to be determined therefore is whether

or not the element of defraudation by means of deceit
has been established beyond reasonable doubt.
In the case of People v. Menil, Jr., the Court has
defined fraud and deceit in this wise:
_______________
77 Art. 1339. Failure to disclose facts, when there is a duty to reveal

them, as when the parties are bound by confidential relations, constitutes
fraud. (New Civil Code, Art. 1339)
78 Rural Bank of Sta. Maria, Pangasinan v. Court of Appeals, 373
Phil. 27; 314 SCRA 255 (1999).
79 Cathay Pacific Airways, Ltd. v. Vasquez, 447 Phil. 306; 399 SCRA
207 (2003).
80 581 Phil. 612; 559 SCRA 638 (2008).

455
VOL. 784, JUNE 27, 2016 455

Fraud, in its general sense, is deemed to

comprise anything calculated to deceive,
including all acts, omissions, and concealment
involving a breach of legal or equitable duty,
trust, or confidence justly reposed, resulting in
damage to another, or by which an undue and
unconscientious advantage is taken of another.
It is a generic term embracing all multifarious
means which human ingenuity can devise, and
which are resorted to by one individual to secure
an advantage over another by false suggestions
or by suppression of truth and includes all
surprise, trick, cunning, dissembling and any
unfair way by which another is cheated. On the
other hand, deceit is the false
representation of a matter of fact, whether
by words or conduct, by false or misleading
allegations, or by concealment of that
which should have been disclosed which
deceives or is intended to deceive another
so that he shall act upon it to his legal
injury. (Emphases supplied)

For example, in People v. Comila,81 both accused-
appellants therein represented themselves to the
complaining witnesses to have the capacity to send them to
Italy for employment, even as they did not have the
authority or license for the purpose. It was such
misrepresentation that induced the complainants to part
with their hard-earned money for placement and medical
fees. Both accused-appellants were criminally held liable
for estafa.
In American jurisprudence, fraud may be predicated on
a false introduction or identification.82 In Union Co. v.
Cobb,83
_______________
81 545 Phil. 755; 517 scra 153 (2007).

82 37 Am. Jur. 2d Fraud and Deceit § 50, citing Union Co. v. Cobb, 73
Ohio L. Abs. 155, 136 N.E. 2d 429 (Ct. App. 10th Dist.

456

the defendant therein procured the merchandise by

misrepresenting that she was Mrs. Taylor Ray and at
another time she was Mrs. Ben W. Chiles, and she forged
their name on charge slips as revealed by the exhibits of
the plaintiff. The sale of the merchandise was induced by
these representations, resulting in injury to the plaintiff.
In Raser v. Moomaw,84 it was ruled that the essential
elements necessary to constitute actionable fraud and
deceit were present in the complaint. It was alleged that, to
induce plaintiff to procure a loan, defendant introduced
him to a woman who was falsely represented to be Annie L.
Knowles of Seattle, Washington, the owner of the property,
and that plaintiff had no means of ascertaining her true
identity. On the other hand, defendant knew, or in the
exercise of reasonable caution should have known, that she
was an impostor, and that plaintiff relied on the
representations, induced his client to make the loan, and
had since been compelled to repay it. In the same case, the
Court ruled that false representations as to the identity of
a person are actionable, if made to induce another to act
thereon, and such other does so act thereon to his
prejudice.85
In this case, analogous to the fraud and deceit exhibited
in the above mentioned circumstances, respondent MPEI
had no excuse not to be forthright with the documents
showing MPC’s eligibility to bid as a joint venture. The
Invitation to Bid, as quoted in our 2004 Decision, could not
have been any clearer when it stated that only bids from
qualified entities, such as a joint venture, would be
entertained:
_______________
Franklin County 1955) and Raser v. Moomaw, 78 Wash. 653, 139 P.

622 (1914).
83 Union Co. v. Cobb, id.
84 Raser v. Moomaw, supra note 82.
85 Id.

457
VOL. 784, JUNE 27, 2016 457

INVITATION TO APPLY FOR ELIGIBILITY AND

TO BID
The Commission on Elections (COMELEC),
pursuant to the mandate of Republic Act Nos. 8189
and 8436, invites interested offerers, vendors,
suppliers or lessors to apply for eligibility and to bid
for the procurement by purchase, lease, lease with
option to purchase, or otherwise, supplies, equipment,
materials and services needed for a comprehensive
Automated Election System, consisting of three (3)
phases: (a) registration/verification of voters, (b)
automated counting and consolidation of votes, and (c)
electronic transmission of election results, with an
approved budget of TWO BILLION FIVE HUNDRED
MILLION Pesos (Php2,500,000,000).
Only bids from the following entities shall be
entertained:
x x x x
d. Manufacturers, suppliers and/or
distributors forming themselves into a joint
venture, i.e., a group of two (2) or more
manufacturers, suppliers and/or distributors
that intend to be jointly and severally
responsible or liable for a particular contract,
provided that Filipino ownership thereof shall
be at least sixty percent (60%); and
e. Cooperatives duly registered with the
Cooperatives Development Authority.86 (Emphases
supplied)
No reasonable mind would argue that documents

showing the very existence of a joint venture need not be
included in the bidding envelope showing its existence,
qualification, and eligibility to undertake the project,
considering that the purpose of prequalification in any
public bidding is to determine, at the earliest opportunity,
the ability of the bidder to undertake the project.87
_______________

Commission on Elections, supra note 1 at pp. 193-194; p. 151.
87 Agan, Jr. v. Philippine International Air Terminals Co., Inc., 450
Phil. 744; 402 SCRA 612 (2003).

458

As found by this Court in its 2004 Decision, it appears

that the documents that were submitted after the bidding,
which respondents claimed would prove the existence of
the relationship among the members of the consortium,
were actually separate agreements individually executed
by the supposed members with MPEI. We had ruled that
these documents were highly irregular, considering that
each of the four different and separate bilateral
Agreements was valid and binding only between MPEI and
the other contracting party, leaving the other “consortium”
members total strangers thereto. Consequently, the other
consortium members had nothing to do with one another,
as each one dealt only with MPEI.88
Considering that they merely showed MPEI’s individual
agreements with the other supposed members, these
agreements confirm to our mind the fraudulent intent on
the part of respondent MPEI to deceive the relevant
officials about MPC. The intent was to cure the deficiency
of the winning bid, which intent miserably failed. Said this
Court:89

We are unconvinced, PBAC was guided by the
rules, regulations or guidelines existing before the bid
proposals were opened on November 10, 1989. The
basic rule in public bidding is that bids should
be evaluated based on the required documents
submitted before and not after the opening of
bids. Otherwise, the foundation of a fair and
competitive public bidding would be defeated.
Strict observance of the rules, regulations, and
guidelines of the bidding process is the only
safeguard to a fair, honest and competitive
public bidding.
In underscoring the Court’s strict application of the
pertinent rules, regulations and guidelines of the
public bidding process, We have ruled in C & C
Commercial v.
_______________

COMELEC, supra note 1 at pp. 215-216; pp. 171-172.
89 Republic v. Capulong, 276 Phil. 136, 152-153; 199 SCRA 134, 146-
147 (1991).

459
VOL. 784, JUNE 27, 2016 459

Menor (L-28360, January 27, 1983, 120 SCRA 112),

that Nawasa properly rejected a bid of C & C
Commercial to supply asbestos cement pressure
which bid did not include a tax clearance certificate as
required by Administrative Order No. 66 dated June
26, 1967. In Caltex (Phil.) Inc., et al. v. Delgado
Brothers, Inc., et al. (96 Phil. 368, 375), We stressed
that public biddings are held for the protection of the
public and the public should be given the best possible
advantages by means of open competition among the
bidders.
x x x x
INTER TECHNICAL’s failure to comply with
what is perceived to be an elementary and
customary practice in a public bidding process,
that is, to enclose the Form of Bid in the
original and eight separate copies of the
bidding documents submitted to the bidding
committee is fatal to its cause. All the four
prequalified bidders which include INTER
TECHNICAL were subject to Rule IB 2.1 of the
Implementing Rules and Regulations of P.D. No. 1594
in the preparation of bids, bid bonds, and
prequalification statement and Rule IB 2.8 which
states that the Form of Bid, among others, shall form
part of the contract. INTER TECHNICAL’s
explanation that its bid form was inadvertently left in
the office (p. 6, Memorandum for Private Respondent,
p. 355, Rollo) will not excuse compliance with such a
simple and basic requirement in the public bidding
process involving a multimillion project of the
Government. There should be strict application
of the pertinent public bidding rules, otherwise
the essential requisites of fairness, good faith,
and competitiveness in the public bidding
process would be rendered meaningless.
(Emphases supplied)

All these circumstances, taken together, reveal a scheme
on the part of respondent MPEI to perpetrate fraud against
the government. The purpose of the scheme was to ensure
that MPEI, an entity that was ineligible to bid in the first
place, would eventually be awarded the contract. While re-

460

spondent argues that it was merely a passive participant

in the bidding process, We cannot ignore its cavalier
disregard of its participation in the now voided automation
contract.
B. Fraud on the part of respondent

MPEI was further shown by the fact
that despite the failure of its ACMs
to pass the tests conducted by the
DOST, respondent still acceded
to being awarded the automation
contract.

Another token of fraud is established by Our findings in
relation to the failure of the ACMs to pass the tests of the
DOST. We quote herein the pertinent portions of this
Court’s 2004 Decision in relation thereto:

After respondent “consortium” and the other
bidder, TIM, had submitted their respective bids on
March 10, 2003, the Comelec’s BAC — through its
Technical Working Group (TWG) and the DOST —
evaluated their technical proposals.
x x x x
According to respondents, it was only after the
TWG and the DOST had conducted their separate
tests and submitted their respective reports that the
BAC, on the basis of these reports formulated its
comments/recommendations on the bids of the
consortium and TIM.
The BAC, in its Report dated April 21, 2003,
recommended that the Phase II project involving the
acquisition of automated counting machines be
awarded to MPEI. x x x
x x x x
The BAC, however, also stated on page 4 of its
Report: “Based on the 14 April 2003 report
(Table 6) of the DOST, it appears that both
Mega-Pacific

461
VOL. 784, JUNE 27, 2016 461

and TIM (Total Information Management

Corporation) failed to meet some of the
requirements. x x x
x x x x

Failure to Meet the Required Accuracy Rating

The first of the key requirements was that the
counting machines were to have an accuracy rating of
at least 99.9995 percent. The BAC Report
indicates that both Mega Pacific and TIM failed
to meet this standard.
The key requirement of accuracy rating
happens to be part and parcel of the Comelec’s
Request for Proposal (RFP). x x x
x x x x
x x x Whichever accuracy rating is the right
standard — whether 99.995 or 99.9995 percent — the
fact remains that the machines of the so-called
“consort him” failed to even reach the lesser of the
two. On this basis alone, it ought to have been
disqualified and its bid rejected outright.
At this point, the Court stresses that the
essence of public bidding is violated by the
practice of requiring very high standards or
unrealistic specifications that cannot be met —
like the 99.9995 percent accuracy rating in this
case — only to water them down after the bid
has been award. [sic] Such scheme, which
discourages the entry of prospective bona
fide bidders, is in fact a sure indication of fraud
in the bidding, designed to eliminate fair
competition. Certainly, if no bidder meets the
mandatory requirements, standards or
specifications, then no award should be made
and a failed bidding declared.
x x x x

462

Failure of Software to Detect Previously

Downloaded Data

Furthermore, on page 6 of the BAC Report, it
appears that the “consortium” as well as TIM
failed to meet another key requirement — for
the counting machine’s software program to
be able to detect previously downloaded precinct
results and to prevent these from being entered
again into the counting machine. This same
deficiency on the part of both bidders reappears on
page 7 of the BAC Report, as a result of the
recurrence of their failure to meet the said key
requirement.
That the ability to detect previously downloaded
data at different canvassing or consolidation levels is
deemed of utmost importance can be seen from the
fact that it is repeated three times in the RFP. x x x
Once again, though, Comelec chose to ignore this
crucial deficiency, which should have been a cause for
the gravest concern. x x x.
x x x x

Inability to Print the Audit Trail

But that grim prospect is not all. The BAC Report,
on pages 6 and 7, indicate that the ACMs of both
bidders were unable to print the audit trail without
any loss of data. In the case of MPC, the audit trail
system was “not yet incorporated” into its ACMs.
x x x x
Thus, the RFP on page 27 states that the ballot
counting machines and ballot counting software must
print an audit trail of all machine operations
for documentation and verification purposes.
Furthermore, the audit trail must be stored on the
internal storage device and be available on demand
for future printing and verifying. On pages 30-31, the
RFP also requires that the city/municipal canvassing
system software be able to print an audit trail of
the canvassing operations, including therein such
data as the date and time the canvassing program
was started, the log-in of the authorized

463
VOL. 784, JUNE 27, 2016 463

users (the identity of the machine operators), the

date and time the canvass data were downloaded into
the canvassing system, and so on and so forth. On
page 33 of the RFP, we find the same audit trail
requirement with respect to
the provincial/district canvassing system software;
and again on pages 35-36 thereof, the same audit trail
requirement with respect to the national canvassing
system software.
x x x x
The said provision which respondents have quoted
several times, provides that ACMs are to possess
certain features divided into two classes: those that
the statute itself considers mandatory and other
features or capabilities that the law deems
optional. Among those considered mandatory are
“provisions for audit trails.” x x x.
In brief, respondents cannot deny that the
provision requiring audit trails is indeed
mandatory, considering the wording of Section
7 of RA 8436. Neither can Respondent Comelec deny
that it has relied on the BAC Report, which indicates
that the machines or the software was deficient in
that respect. And yet, the Commission simply
disregarded this shortcoming and awarded the
Contract to private respondent, thereby violating the
very law it was supposed to implement.90 (Emphases
supplied)

The above mentioned findings were further echoed by
this Court in its 2006 Resolution with a categorical
conclusion that the bidding process was void and
fraudulent.91
_______________
90 Information Technology Foundation of the Philippines, Inc. v.

Commission on Elections, supra note 1 at pp. 227, 232-238; pp. 181, 186-
191.
91 We stress once again that the Contract entered into by the Comelec
for the supply of the ACMs was declared VOID by the Court in its
Decision because of clear violations of law and jurisprudence, as well as
the reckless disregard by the Commission of its own bidding rules and
procedure:

464

Again, these factual findings found their way into the

application of petitioner for a writ of preliminary
attachment,92 as it claimed that respondents could not
dissociate themselves from their telltale acts of supplying
defective machines and nonexistent software.93 The latter
offered no defense in relation to these claims.
We see no reason to deviate from our finding of fraud on
the part of respondent MPEI in the 2004 Decision and 2006
Resolution. Despite its failure to meet the mandatory
requirements set forth in the bidding procedure,
respondent still acceded to being awarded the contract.
These circumstances reveal its ploy to gain undue
advantage over the other bidders in general, even to the
extent of cheating the government.
The word “bidding” in its comprehensive sense means
making an offer or an invitation to prospective contractors,
whereby the government manifests its intention to make
proposals for the purpose of securing supplies, materials,
and equipment for official business or public use, or for
public works or repair.94 Three principles involved in public
bidding are as follows: (1) the offer to the public; (2) an
opportunity for competition; and (3) a basis for an exact
comparison of bids. A regulation of the matter, which
excludes any of these factors, destroys the distinctive
character of the system and thwarts the purpose of its
adoption.95
_______________
“To muddle the issue, Comelec keeps on saying that the ‘winning’
bidder presented a lower price than the only other bidder. It ignored the
fact that the whole bidding process was VOID and FRAUDULENT. How
then could there have been a ‘winning’ bid? x x x” (Supra note 7 at pp.
4132-4134)
92 Rollo, pp. 201-211.
93 Id., at p. 208.
94 JG Summit Holdings, Inc. v. Court of Appeals, 458 Phil. 581; 412
SCRA 10 (2003).
95 Malaga v. Penachos, Jr., G.R. No. 86695, 3 September 1992, 213
SCRA 516.

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VOL. 784, JUNE 27, 2016 465

In the instant case, We infer from the circumstances

that respondent MPEI welcomed and allowed the award of
the automation contract, as it executed the contract despite
the full knowledge that it had not met the mandatory
requirements set forth in the RFP. Respondent acceded to
and benefitted from the watering down of these mandatory
requirements, resulting in undue advantage in its favor.
The fact that there were numerous mandatory
requirements that were simply set aside to pave the way
for the award of the automation contract does not escape
the attention of this Court. Respondent MPEI, through
respondent Willy, signed and executed the automation
contract with COMELEC. It is therefore preposterous for
respondent argue that it was a “passive participant” in the
whole bidding process.
We reject the CA’s denial of petitioner’s plea for the
ancillary remedy of preliminary attachment, considering
that the cumulative effect of the factual findings of this
Court establishes a sufficient basis to conclude that fraud
had attended the execution of the automation contract.
Such fraud is deducible from the 2004 Decision and further
upheld in the 2006 Resolution. It was incongruous,
therefore, for the CA to have denied the application for a
writ of preliminary attachment, when the evidence on
record was the same that was used to demonstrate the
propriety of the issuance of the writ of preliminary
attachment. This was the same evidence that We had
already considered and passed upon, and on which We
based Our 2004 Decision to nullify the automation
contract. It would not be right for this Court to ignore these
illegal transactions, as to do so would be tantamount to
abandoning its constitutional duty of safeguarding public
interest.

II.
Application of the piercing doctrine justifies the
issuance of a writ of preliminary attachment over the
properties of the individual respondents.

466

Individual respondents argue that since they were not

parties to the 2004 case, any factual findings or conclusions
therein should not be binding upon them.96 Since they were
strangers to that case, they are not bound by the judgment
rendered by this Court.97 They claim that their
fundamental right to due process would be violated if their
properties were to be attached for a purported corporate
debt on the basis of a court ruling in a case in which they
were not given the right or opportunity to be heard.98
We cannot subscribe to this argument. In the first place,
it could not be reasonably expected that individual
respondents would be impleaded in the 2004 case. As
admitted by respondents, the issues resolved in the 2004
Decision were limited to the following: (1) whether to
declare Resolution No. 6074 of the COMELEC null and
void; (2) whether to enjoin the implementation of any
further contract that may have been entered into by
COMELEC with MPC or MPEI; and (3) whether to compel
COMELEC to conduct a rebidding of the project. To
implead individual respondents then was improper,
considering that the automation contract was entered into
by respondent MPEI. This Court even acknowledged this
fact by directing that the liabilities of persons responsible
for the nullity of the contract be determined in another
appropriate proceeding and by directing the OSG to
undertake measures to protect the interests of the
government.
At any rate, individual respondents have been fully
afforded the right to due process by being impleaded and
heard in the subsequent proceedings before the courts a
quo. Finally, they cannot argue violation of due process, as
respondent MPEI, of which they are
incorporators/stockholders, remains vulnerable to the
piercing of its corporate veil.
_______________
96 Rollo, pp. 797-801 & 906-915.

97 Id., at p. 798.
98 Id., at p. 800.

467
VOL. 784, JUNE 27, 2016 467

A. There are red flags indicating

that MPEI was used to perpetrate
the fraud against petitioner, thus
allowing the piercing of its corpo-
rate veil.

Petitioner seeks the issuance of a writ of preliminary
attachment over the personal assets of the individual
respondents, notwithstanding the doctrine of separate
juridical personality.99 It invokes the use of the doctrine of
piercing the corporate veil, to which the canon of separate
juridical personality is vulnerable, as a way to reach the
personal properties of the individual respondents.
Petitioner paints a picture of a sham corporation set up by
all the individual respondents for the purpose of securing
the automation contract.
We agree with petitioner.
Veil-piercing in fraud cases requires that the legal
fiction of separate juridical personality is used for
fraudulent or wrongful ends.100 For reasons discussed
below, We see red flags of fraudulent schemes in public
procurement, all of which were established in the 2004
Decision, the totality of which strongly indicate that MPEI
was a sham corporation formed merely for the purpose of
perpetrating a fraudulent scheme.
_______________
99 The general rule is that a corporation has a separate juridical

personality distinct from the persons composing it. Remo, Jr. v.
Intermediate Appellate Court, 254 Phil. 409, 411; 172 SCRA 405, 411
(1989) One implication of the doctrine is that corporate creditors may not
reach the personal assets of the shareholders, who are liable only to the
extent of their subscription under the related doctrine of limited liability.
(Philippine National Bank v. Hydro Resources Contractors Corporation,
G.R. Nos. 167530, 167561, 167603, 13 March 2013, 693 SCRA 294)
100 See Black’s Law Dictionary, pp. 1147-1148 (6th ed., 2008). See
also Kukan International Corporation v. Reyes, 646 Phil. 210; 631 SCRA
596 (2010) and Villanueva, Cesar Lapuz and Villanueva-Tiansay, Teresa
S., Philippine Corporate Law, p. 105 (2013).

468

The red flags are as follows: (1) overly narrow

specifications; (2) unjustified recommendations and
unjustified winning bidders; (3) failure to meet the terms of
the contract; and (4) shell or fictitious company. We shall
discuss each in detail.
Overly Narrow Specifications

The World Bank’s Fraud and Corruption Awareness
Handbook: A Handbook for Civil Servants Involved in
Public Procurement (Handbook), identifies an assortment
of fraud and corruption indicators and relevant schemes in
public procurement.101 One of the schemes recognized by
the Handbook is rigged specifications:
Scheme: Rigged specifications. In a competitive

market for goods and services, any specifications that
seem to be drafted in a way that favors a
particular company deserve closer scrutiny. For
example, specifications that are too narrow can
be used to exclude other qualified bidders or justify
improper sole source awards. Unduly vague or
broad specifications can allow an unqualified
bidder to compete or justify fraudulent change orders
after the contract is awarded. Sometimes, project
officials will go so far as to allow the favored bidder to
draft the specifications.102
In Our 2004 Decision, We identified a red flag of rigged

bidding in the form of overly narrow specifications. As
already discussed, the accuracy requirement of 99.9995
percent was
_______________
101 International Bank for Reconstruction and Development/The

World Bank, 2013, Fraud and Corruption Awareness Handbook: A
Handbook for Civil Servants Involved in Public Procurement, p. 1 (last
visited 15 November 2015) <http://www-
wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2014/04/25/000456286_20140425150639/Rendered/PDF/877290PUB0Frau00Box382l47B00PUB
(Fraud and Corruption Awareness Handbook).
102 Id., at pp. 17-18.

469
VOL. 784, JUNE 27, 2016 469

set up by COMELEC bidding rules. This Court

recognized that this rating was “too high and was a sure
indication of fraud in the bidding, designed to
eliminate fair competition.”103 Indeed, “the essence of
public bidding is violated by the practice of requiring very
high standards or unrealistic specifications that cannot be
met. . .only to water them down after the bid has been
award(ed).”104
Unjustified Recommendations
and Unjustified Winning Bidders

Questionable evaluation in a Bid Evaluation Report
(BER) is an indicator of bid rigging. The Handbook
expounds:
Questionable evaluation and unusual bid

patterns may emerge in the BER. After the
completion of the evaluation process, the Bid
Evaluation Committee should present to the
implementing agency its BER, which describes
the results and the process by which the BEC
has evaluated the bids received. The BER may
include a number of indicators of bid rigging,
e.g., questionable disqualifications, and unusual
bid patterns.105
The Handbook lists unjustified recommendations and

unjustified winning bidders as red flags of a rigged
bidding.106
The red flags of questionable recommendation and
unjustified awards are raised in this case. As earlier
discussed, the project was awarded to MPC, which proved
to be a nonentity. It was MPEI that actually participated in
the bidding process, but it was not qualified to be a bidder
in the first place. More-
_______________
103 Supra note 7.

Commission on Elections, supra note 1.
105 Supra note 101 at p. 30.
106 Id.

471
VOL. 784, JUNE 27, 2016 471

over, its ACMs failed the accuracy requirement set by

COMELEC. Yet, MPC — the nonentity — obtained a
favorable recommendation from the BAC, and the
automation contract was awarded to the former.
Failure to Meet Contract Terms

Failure to meet the terms of a contract is regarded as a
fraud by the Handbook:
Scheme: Failure to meet contract terms. Firms may

deliberately fail to comply with contract
requirements. The contractor will attempt to conceal
such actions often by falsifying or forging supporting
documentation and bill for the work as if it were done
in accordance with specifications. In many cases, the
contractors must bribe inspection or project personnel
to accept the substandard goods or works, or
supervision agents are coerced to approve
substandard work. x x x107

As mentioned earlier, this Court already found the
ACMs to be below the standards set by the COMELEC. We
reiterated their noncompliant status in Our 2005 and 2006
Resolutions.
As early as 2005, when the COMELEC sought
permission from this Court to utilize the ACMs in the then
scheduled ARMM elections, We declared that the proposed
use of the machines would expose the ARMM elections to
the same dangers of massive electoral fraud that would
have been inflicted by the projected automation of the 2004
national elections. We based this pronouncement on the
fact that the COMELEC failed to show that the
deficiencies had been cured.108 Yet again, this Court in
2006 blocked another
_______________
107 Id., at p. 39.

108 This Court in its 2005 Resolution in 2004 case ruled as follows:

471
VOL. 784, JUNE 27, 2016 471

attempt to use the ACMs, this time for the 2007

elections. We reiterated that because the ACMs had merely
remained idle and unused since their last evaluation, in
which they failed to hurdle the crucial tests, then their
defects and deficiencies could not have been cured by
then.109
_______________
The Motion has not at all demonstrated that these technical

requirements have been addressed from the time our Decision was issued
up to now. In fact, Comelec is merely asking for leave to use the machines,
without mentioning any specific manner in which the foregoing
requirements have been satisfactorily met.
Equally important, we stressed in our Decision that “[n]othing was said
or done about the software — the deficiencies as to detection and
prevention of downloading and entering previously downloaded data, as
well as the capability to print an audit trail. No matter how many times
the machines were tested and retested, if nothing was done about the
programming defects and deficiencies, the same danger of massive
electoral fraud remains.”
Other than vaguely claiming that its four so-called “experts” have
“unanimously confirmed that the software development which the
Comelec undertook, [was] in line with the internationally accepted
standards (ISO/IEC 12207) [for] software life cycle processes,” the present
Motion has not shown that the alleged “software development” was indeed
extant and capable of addressing the “programming defects and
deficiencies” pointed out by this Court.
At bottom, the proposed use of the ACMs would subject the ARMM
elections to the same dangers of massive electoral fraud that would have
been inflicted by the projected automation of the 2004 national elections.
109 This Court in its 2006 Resolution in 2004 case ruled thus:
Like the earlier Comelec Motion, however, the present one of Atty.
Macalintal utterly fails to demonstrate — nay, even slightly indicate —
what “certain supervening and legal circumstances [have] transpired” to
justify the reliefs it seeks. In fact, after the Court had ruled, among
others, that the ACMs had failed to pass legally mandated
technical requirements, they have admittedly been simply stored.
In other words, they have merely remained idle and
unused since their last evaluation in which they failed to hurdle
the crucial tests. Thus, again we say, the ACMs were

472

Based on the foregoing, the ACMs delivered were

plagued with defects that made them fail the requirements
set for the automation project.
Shell or fictitious company

The Handbook regards a shell or fictitious
company as a “serious red flag,” a concept that it
elaborates upon:
Fictitious companies are by

definition fraudulent and may also serve as fronts
for government officials. The typical scheme involves
corrupt government officials creating a fictitious
company that will serve as a “vehicle” to secure
contract awards. Often, the fictitious — or ghost —
company will subcontract work to lower cost and
sometimes unqualified firms. The fictitious company
may also utilize designated losers as subcontractors to
deliver the work, thus indicating collusion.
Shell companies have no significant assets, staff or
operational capacity. They pose a serious red flag as
a bidder on public contracts, because they often hide
the interests of project or government officials,
concealing a conflict of interest and opportunities for
money laundering. Also, by definition, they have
no experience.110
MPEI qualifies as a shell or fictitious company. It was

nonexistent at the time of the invitation to bid; to be
precise, it was incorporated only 11 days before the
bidding. It was a
_______________
not good enough for either the 2004 national elections or for the
2005 ARMM polls; why should they be good enough for the 2007
elections, considering that nothing has been done to correct the
legal, jurisprudential and technical flaws underscored in our final
and executory Decision? Likewise, we repeat that no matter how many
times the machines were retested, if nothing was done about the
programming defects and deficiencies, the same danger of massive
electoral fraud remains. (Emphases supplied)
110 Supra note 101 at p. 40.

473
VOL. 784, JUNE 27, 2016 473

newly formed corporation and, as such, had no track

record to speak of.
Further, MPEI misrepresented itself in the bidding
process as “lead company” of the supposed joint venture.
The misrepresentation appears to have been an attempt to
justify its lack of experience. As a new company, it was not
eligible to participate as a bidder. It could do so only by
pretending that it was acting as an agent of the putative
consortium.
The timing of the incorporation of MPEI is particularly
noteworthy. Its close nexus to the date of the invitation to
bid and the date of the bidding (11 days) provides a strong
indicium of the intent to use the corporate vehicle for
fraudulent purposes. This proximity unmistakably
indicates that the automation contract served as
motivation for the formation of MPEI: a corporation had to
be organized so it could participate in the bidding by
claiming to be an agent of a pretended joint venture.
The timing of the formation of MPEI did not escape the
scrutiny of Justice Angelina Sandoval-Gutierrez, who made
this observation in her Concurring Opinion in the 2004
Decision:

At this juncture, it bears stressing that MPEI was
incorporated only on February 27, 2003 as evidenced
by its Certificate of Incorporation. This goes to show
that from the time the COMELEC issued its
Invitation to Bid (January 28, 2003) and Request for
Proposal (February 17, 2003) up to the time it
convened the Pre-bid Conference (February 18, 2003),
MPEI was literally a non-existent entity. It came into
being only on February 27, 2003 or eleven (11) days
prior to the submission of its bid, i.e., March 10,
2003. This poses a legal obstacle to its eligibility
as a bidder. The Request for Proposal requires the
bidder to submit financial documents that will
establish to the BAC’s satisfaction its financial
capability which include:

474

(1) audited financial statements of the

Bidder’s firm for the last three (3) calendar
years, stamped “RECEIVED” by the appropriate
government agency, to show its capacity to
finance the manufacture and supply of Goods
called for and a statement or record of volumes of
sales;
(2) Balance Sheet;
(3) Income Statement; and
(4) Statement of Cash Flow.
As correctly pointed out by petitioners, how could
MPEI comply with the above requirement of audited
financial statements for the last three (3) calendar
years if it came into existence only eleven (11) days
prior to the bidding?
To do away with such complication, MPEI asserts
that it was MP CONSORTIUM who submitted the bid
on March 10, 2003. It pretends compliance with the
requirements by invoking the financial capabilities
and long time existence of the alleged members of the
MP CONSORTIUM, namely, Election.Com, WeSolv,
SK CeC, ePLDT and Oracle. It wants this Court to
believe that it is MP CONSORTIUM who was
actually dealing with the COMELEC and that its
(MPEI) participation is merely that of a “lead
company and proponent” of the joint venture. This is
hardly convincing. For one, the contract for the supply
and delivery of ACM was between COMELEC and
MPEI, not MP CONSORTIUM. As a matter of fad,
there cannot be found in the contract any reference to
the MP CONSORTIUM or any member thereof for
that matter. For another, the agreements among the
alleged members of MP CONSORTIUM do not show
the existence of a joint-venture agreement. Worse,
MPEI cannot produce the agreement as to the “joint
and several liability” of the alleged members of the
MP CONSORTIUM as required by this Court in its
Resolution dated October 7, 2003.111
_______________

Commission on Elections, supra note 1 at pp. 277-278; pp. 224-225.

475
VOL. 784, JUNE 27, 2016 475

Respondent MPEI was formed to

perpetrate the fraud against peti-
tioner.

The totality of the red flags found in this case leads Us
to the inevitable conclusion that MPEI was nothing but a
sham corporation formed for the purpose of defrauding
petitioner. Its ultimate objective was to secure the
P1,248,949,088 automation contract. The scheme was to
put up a corporation that would participate in the bid and
enter into a contract with the COMELEC, even if the
former was not qualified or authorized to do so.
Without the incorporation of MPEI, the defraudation of
the government would not have been possible. The
formation of MPEI paved the way for its participation in
the bid, through its claim that it was an agent of a
supposed joint venture, its misrepresentations to secure
the automation contract, its misrepresentation at the time
of the execution of the contract, its delivery of the defective
ACMs, and ultimately its acceptance of the benefits under
the automation contract.
The foregoing considered, veil-piercing is justified in this
case.
We shall next consider the question of whose assets
shall be reached by the application of the piercing doctrine.
B. Because all the individual

respondents actively participated
in the perpetration of the fraud
against petitioner, their personal
assets may be subject to a writ of
preliminary attachment by piercing
the corporate veil.

A corporation’s privilege of being treated as an entity
distinct and separate from the stockholders is confined to
legitimate uses, and is subject to equitable limitations to
prevent

476

its being exercised for fraudulent, unfair, or illegal

purposes.112 As early as the 19th century, it has been held
that:

The general proposition that a corporation is to be
regarded as a legal entity, existing separate and apart
from the natural persons composing it, is not
disputed; but that the statement is a mere fiction,
existing only in idea, is well understood, and not
controverted by any one who pretends to accurate
knowledge on the subject. It has been introduced for
the convenience of the company in making contracts,
in acquiring property for corporate purposes, in suing
and being sued, and to preserve the limited liability of
the stockholder by distinguishing between the
corporate debts and property of the company and of
the stockholders in their capacity as individuals. All
fictions of law have been introduced for the
purpose of convenience, and to subserve the
ends of justice. It is in this sense that the maxim in
fictione juris subsistit aequitas is used, and the
doctrine of fictions applied. But when they are
urged to an intent and purpose not within the
reason and policy of the fiction, they have
always been disregarded by the courts. Broom’s,
Legal Maxims 130. “It is a certain rule,” says Lord
Mansfield, C.J., “that a fiction of law never be
contradicted so as to defeat the end for which it was
invented, but for every other purpose it may be
contradicted.” Johnson v. Smith, 2 Burr, 962.113
The main effect of disregarding the corporate fiction is

that stockholders will be held personally liable for the acts
and contracts of the corporation, whose existence, at least
for the purpose of the particular situation involved, is
ignored.114
_______________
112 Campos, Jr., Jose C., and Lopez-Campos, Maria Clara, The
Corporation Code, Volume I, p. 149 (1990).
113 State ex rel. Attorney General v. Standard Oil Co., Supreme Court
of Ohio, 49 Ohio St., 137, N.E. 279 (1892), cited in Campos, Jr. id., at p.
154. (Emphases supplied)
Commission on Elections, supra note 1.

477
VOL. 784, JUNE 27, 2016 477

We have consistently held that when the notion of legal

entity is used to defeat public convenience, justify wrong,
protect fraud, or defend crime, the law will regard the
corporation as an association of persons.115 Thus,
considering that We find it justified to pierce the corporate
veil in the case before Us, MPEI must, perforce, be treated
as a mere association of persons whose assets are
unshielded by corporate fiction. Such persons’ individual
liability shall now be determined with respect to the matter
at hand.
Contrary to respondent Willy’s claims, his participation
in the fraud is clearly established by his unequivocal
agreement to the execution of the automation contract with
the COMELEC, and his signature that appears on the
voided contract. As far back as in the 2004 Decision, his
participation as a signatory’ to the automation contract was
already established:

The foregoing argument is unpersuasive. First, the
contract being referred to, entitled “The Automated
Counting and Canvassing Project Contract,” is
between Comelec and MPEI, not the alleged
consortium, MPC. To repeat, it is MPEI — not MPC
— that is a party to the Contract. Nowhere in that
Contract is there any mention of a consortium or joint
venture, of members thereof much less of joint and
several liability. Supposedly executed sometime in
May 2003, the Contract bears a notarization date of
June 30, 2003, and contains the signature of
Willy U. Yu signing as president of MPEI (not
for and on behalf of MPC), along with that of
the Comelec chair. It provides in Section 3.2 that
MPEI (not MPC) is to supply the Equipment and
perform the Services under the Contract, in
accordance with the appendices thereof; nothing
whatsoever is said about any
_______________
115 Koppel (Philippines), Inc. v. Yatco, No. 47673, 10 October 1946, 77

Phil. 496; Laguna Transportation Co., Inc. v. Social Security System, No.
L-14606, 28 April 1960, 107 Phil. 833; Francisco v. Mejia, G.R. No.
141617, 14 August 2001, 362 SCRA 738; Yao, Sr. v. People, 552 Phil. 195;
525 SCRA 108 (2007).

478

consortium or joint venture or partnership. x x x

(Emphasis supplied)

That his signature appears on the automation contract
means that he agreed and acceded to its terms.116 His
participation in the fraud involves his signing and
executing the voided contract.
The execution of the automation contract with a non-
eligible entity and the subsequent award of the contract
despite the failure to meet the mandatory requirements
were “badges of fraud” in the procurement process that
should have been recognized by the CA to justify the
issuance of the writ of preliminary attachment against the
properties of respondent Willy.
With respect to the other individual respondents,
petitioner, in its Answer with Counterclaim, alleged:
30. Also, inasmuch as MPEI is in truth a mere shell

corporation with no real assets in its name,
incorporated merely to feign eligibility for the bidding
of the automated contract when it in fact had none, to
the great
_______________
116 See Traders Royal Bank v. Cuison Lumber Co., Inc., 606 Phil. 700;
588 SCRA 690 (2009), citing People’s Industrial and Commercial Corp. v.
Court of Appeals, 346 Phil. 189; 281 SCRA 206 (1997):
“The clear and neat principle is that the offer must be certain and
definite with respect to the cause or consideration and object of the
proposed contract, while the acceptance of this offer — express or implied
— must be unmistakable, unqualified, and identical in all respects to the
offer. The required concurrence, however, may not always be
immediately clear and may have to be read from the attendant
circumstances; in fact, a binding contract may exist between the
parties whose minds have met, although they did not affix their
signatures to any written document.” (Emphasis supplied)

479
VOL. 784, JUNE 27, 2016 479

prejudice of the Republic, plaintiff’s individual

incorporators should likewise be made liable
together with MPEI for the automated contract
amount paid to and received by the latter. The
following circumstances altogether manifest that the
individual incorporators merely cloaked themselves
with the veil of corporate fiction to perpetrate a fraud
and to eschew liability therefor, thus:
x x x x
f. From the time it was incorporated until
today, MPEI has not complied with the
reportorial requirements of the Securities and
Exchange Commission;
g. Individual incorporators, acting
fraudulently through MPEI, and in
violation of the bidding rules, then
subcontracted the automation contract to
four (4) other corporations, namely: WeSolve
Corporation, SK C&C, ePLDT and election.com,
to comply with the capital requirements,
requisite five (5)-year corporate standing and
the technical qualifications of the Request for
Proposal.
x x x x 117

In response to petitioner’s allegations, respondents Willy
and Bonnie stated in their Reply and Answer (Re: Answer
with Counterclaim dated 28 June 2004):118

3.3 As far as plaintiff MPEI and defendants-in-
counterclaim are concerned, they dealt with the
COMELEC with full transparency and in utmost
good faith. All documents support its eligibility to bid for
the supply of the ACMs and their peripheral services, were
submitted to the COMELEC for its evaluation in full
transparency. Pertinently, neither plaintiff MPEI nor any
of its directors, stockholders, officers or employees
_______________
117 Rollo, pp. 181-182.

118 Records (Vol. II), pp. 866-884.

480

had any participation in the evaluation of the bids

and eventual choice of the winning bidder.119
Respondents Johnson’s and Bernard’s denials were
made in paragraphs 2.17 and 3.3 of their Answer with
Counterclaim to the Republic’s Counterclaim, to wit:120
2.17 The erroneous conclusion of fact and law in

paragraph 30(f) and (g) of the Republic’s answer is
denied, having been pleaded in violation of the
requirement, that only ultimate facts arc to be stated
in the pleadings and they are falsehoods. The truth of
the matter is that there could not have been fraud, as
these agreements were submitted to the COMELEC
for its evaluation and assessment, as to the
qualification of the Consortium as a bidder, a showing
of transparency in plaintiff’s dealings with the
Republic.121
3.3 As far as plaintiff MPEI and defendants-in-
good faith. All documents support its eligibility to
bid for the supply of the automated counting
machines and its peripheral services, were submitted
to the COMELEC for its evaluation in full
transparency. Pertinently, the plaintiff or any of its
directors, stockholders, officers or employees had no
participation in the evaluation of the bids and
eventual choice of the winning bidder.122

As regards Enrique and Rosita, the relevant paragraphs
in the Answer with Counterclaim to the Republic’s
Counterclaim123 are quoted below:
_______________
119 Id., at p. 877.

120 Id., at pp. 853-865.
121 Id., at p. 889.
122 Id., at p. 877.
123 Id., at pp. 885-897.

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VOL. 784, JUNE 27, 2016 481

2.17. The erroneous conclusion of fact and law in

paragraph 30(f) and (g) of the Republic’s answer is
denied, having been pleaded in violation of the
requirement, that only ultimate facts are to be stated
in the pleadings and they are falsehoods. The truth of
the matter is that there could not have been fraud, as
these agreements were submitted to the COMELEC
for its evaluation and assessment, as to the
qualification of the Consortium as a bidder, a showing
of transparency in plaintiff’s dealings with the
Republic.124
3.3. As far as the plaintiff and herein
answering defendants-in-counterclaim are
concerned, they dealt with the Commission on
Elections with full transparency and in utmost
good faith. All documents in support of its eligibility
to bid for the supply of the automated counting
machines and its peripheral services were submitted
to the Commission on Elections for its evaluation in
full transparency. Pertinently, the plaintiff or any of
its directors, stockholders, officers or employees had
no participation in the evaluation of the bids and
eventual choice of the winning bidder.125

Pedro and Laureano offer a similar defense in paragraph
3.3 of their Reply and Answer with Counterclaim to the
Republic’s Counterclaim126 dated 28 June 2004, which
reads:
3.3. As far as plaintiff MPEI and defendants-in-

good faith. All documents support its eligibility to
bid for the supply of the ACMs and their peripheral
services, were submitted to the COMELEC for its
evaluation in full transparency. Pertinently, neither
plaintiff MPEI nor any of its directors, stockholders,
officers or employees
_______________
124 Id., at p. 889.

125 Id., at p. 892.
126 Id., at pp. 900-918.

482

had any participation in the evaluation of the bids

and eventual choice of the winning bidder.127

It can be seen from the above quoted paragraphs that
the individual respondents never denied their participation
in the questioned transactions of MPEI, merely raising the
defense of good faith and shifting the blame to the
COMELEC. The individual respondents have, in effect,
admitted that they had knowledge of and participation in
the fraudulent subcontracting of the automation contract to
the four corporations.
It bears stressing that the remaining individual
respondents, together with respondent Willy, incorporated
MPEI. As incorporators, they are expected to be involved in
the management of the corporation and they are charged
with the duty of care. This is one of the reasons for the
requirement of ownership of at least one share of stock by
an incorporator:

The reason for this, as explained by the
lawmakers, is to avoid the confusion and/or
ambiguities arising in a situation under the old
corporation law where there exists one set of
incorporators who are not even shareholders and
another set of directors/incorporators who must
all be shareholders of the corporation. The
people who deal with said corporation at such an
early stage are confused as to who are the persons or
group really authorized to act in behalf of the
corporation. (Proceedings of the Batasan Pambansa
on the Proposed Corporation Code). Another reason
may be anchored on the presumption that when
an incorporator has pecuniary interest in the
corporation, no matter how minimal, he will be
more involved in the management of corporate
affairs and to a greater degree, be concerned
with the welfare of the corporation.128
_______________
127 Id., at p. 911.

128 Lopez, Rosario N., The Corporation Code of the Philippines
(Annotated), Volume I, p. 170 (1994).

483
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As incorporators and businessmen about to embark on a

new business venture involving a sizeable capital (P300
million), the remaining individual respondents should have
known of Willy’s scheme to perpetrate the fraud against
petitioner, especially because the objective was a billion
peso automation contract. Still, they proceeded with the
illicit business venture.
It is clear to this Court that inequity would result if We
do not attach personal liability to all the individual
respondents. With a definite finding that MPEI was used to
perpetrate the fraud against the government, it would be a
great injustice if the remaining individual respondents
would enjoy the benefits of incorporation despite a clear
finding of abuse of the corporate vehicle. Indeed, to allow
the corporate fiction to remain intact would not subserve,
but instead subvert, the ends of justice.

III.
The factual findings of this Court that have become
final cannot be modified or altered, much less
reversed, and are controlling in the instant case.

Respondents argue that the 2004 Decision did not
resolve and could not have resolved the factual issue of
whether they had committed any fraud, as the Supreme
Court is not a trier of facts; and the 2004 case, being a
certiorari case, did not deal with questions of fact.129
Further, respondents argue that the findings of this
Court ought to be confined only to those issues actually
raised and resolved in the 2004 case, in accordance with
the principle of conclusiveness of judgment.130 They explain
that the issues resolved in the 2004 Decision were only
limited to the following: (1) whether to declare COMELEC
Resolution No. 6074
_______________
129 Rollo, pp. 892-897.

130 Id., at p. 804.

484

null and void; (2) whether to enjoin the implementation of

any further contract that may have been entered into by
COMELEC with MPC or MPEI; and (3) whether to compel
COMELEC to conduct a rebidding of the project.131
It is obvious that respondents are merely trying to
escape the implications or effects of the nullity of the
automation contract that they had executed. Section 1,
Rule 65 of the Rules of Court, clearly sets forth the
instances when a petition for certiorari can be used as a
proper remedy:

Section 1. Petition for certiorari.—When any
tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its
jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there
is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law
and justice may require.

The term “grave abuse of discretion” has a specific
meaning. An act of a court or tribunal can only be
considered to have been committed with grave abuse of
discretion when the act is done in a “capricious or
whimsical exercise of judgment as is equivalent to lack of
jurisdiction.”132 The abuse of discretion must be so patent
and gross as to amount to an “evasion of a positive duty or
to a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic
_______________
131 Id., at pp. 803-804.

132 Ganaden v. Court of Appeals, 665 Phil. 261; 650 SCRA 117 (2011).

485
VOL. 784, JUNE 27, 2016 485

manner by reason of passion and

hostility.”133 Furthermore, the use of a petition for
certiorari is restricted only to “truly extraordinary cases
wherein the act of the lower court or quasi-judicial body is
wholly void.”134 From the foregoing definition, it is clear
that the special civil action of certiorari under Rule 65 can
only strike down an act for having been done with grave
abuse of discretion if the petitioner could manifestly show
that such act was patent and gross.135
We had to ascertain from the evidence whether the
COMELEC committed grave abuse of discretion, and in the
process, were justified in making some factual findings.
The conclusions derived from the factual findings are
inextricably intertwined with this Court’s determination of
grave abuse of discretion. They have a direct bearing and
are in fact necessary to illustrate that the award of the
automation contract was done hastily and in direct
violation of law. This Court has indeed made factual
findings based on the evidence presented before it; in turn,
these factual findings constitute the controlling legal rule
between the parties that cannot be modified or amended by
any of them. This Court is bound to consider the factual
findings made in the 2004 Decision in order to declare that
there is fraud for the purpose of issuing the writ of
preliminary attachment.
Respondents appear to have misunderstood the
implications of the principle of conclusiveness of judgment
on their cause. Contrary to their claims, the factual
findings are conclusive and have been established as the
controlling legal rule in the instant case, on the basis of the
principle of res judicata — more particularly, the principle
of conclusiveness of judgment.
_______________
133 Yu v. Reyes-Carpio, 667 Phil. 474; 652 SCRA 341 (2011), citing
Feria, Jose Y. & Noche, Maria Concepcion S., Civil Procedure Annotated,
Vol. II, p. 463 (2001).
134 J.L. Bernardo Construction v. Court of Appeals, 381 Phil. 25; 324
scra 24 (2000).
135 Yu v. Reyes-Carpio, supra.

486

This doctrine of res judicata which is set forth in Section

47 of Rule 39 of the Rules of Court136 lays down two main
rules, namely: (1) the judgment or decree of a court of
competent jurisdiction on the merits concludes the
litigation between the parties and their privies and
constitutes a bar to a new action or suit involving the same
cause of action either before the same or any other
tribunal; and (2) any right, fact, or matter in issue directly
adjudicated or necessarily involved in the determination of
an action before a competent court in which a judgment or
decree is rendered on the merits is conclusively settled by
the judgment therein and cannot again be litigated
between the parties and their privies whether or not the
claims or demands, purposes, or subject matters of the two
suits are the same.137
These two main rules mark the distinction between the
principles governing the two typical cases in which a
judgment may operate as evidence.138 The first general rule
stated above and corresponding to the aforequoted
paragraph (b) of
_______________
136 Sec. 47. Effect of judgments or final orders.—The effect of a

judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as follows:
x x x x
(b) In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have been
raised in relation thereto, conclusive between the parties and their
successors-in-interest by title subsequent to the commencement of the
action or special proceeding, litigating for the same thing and under the
same title and in the same capacity; and
(c) In any other litigation between the same parties or their
successors-in-interest, that only is deemed to have been adjudged in a
former judgment or final order which appears upon its face to have been
so adjudged, or which actually and necessarily included therein or
necessary thereto.
137 Reforzado v. Lopez, 627 Phil. 294; 613 SCRA 481 (2010).
138 Alamayri v. Pabale, 576 Phil. 146; 553 SCRA 146 (2008).

487
VOL. 784, JUNE 27, 2016 487

Section 47, Rule 39 of the Rules of Court, is referred to
as “bar by former judgment”; while the second general rule,
which is embodied in paragraph (c) of the same section and
rule, is known as “conclusiveness of judgment.”139
In Calalang v. Register of Deeds of Quezon City,140 We
discussed the concept of conclusiveness of judgment as
pertaining even to those matters essentially connected with
the subject of litigation in the first action. This Court
explained therein that the bar on relitigation extends to
those questions necessarily implied in the final judgment,
although no specific finding may have been made in
reference thereto, and although those matters were directly
referred to in the pleadings and were not actually or
formally presented. If the record of the former trial shows
that the judgment could not have been rendered without
deciding a particular matter, it will be considered as having
settled that matter as to all future actions between the
parties; and if a judgment necessarily presupposes certain
premises, they are as conclusive as the judgment itself:
The second concept — conclusiveness of

judgment — states that a fact or question which
was in issue in a former suit and was there
judicially passed upon and determined by a
court of competent jurisdiction, is conclusively
settled by the judgment therein as far as the
parties to that action and persons in privity
with them are concerned and cannot be again
litigated in any future action between such
parties or their privies, in the same court or any
other court of concurrent jurisdiction on either
the same or different cause of action, while the
judgment remains unreversed by proper
authority. It has been held that in order that a
judgment in one action can be conclusive as to a
particular matter in another action between the same
parties or
_______________
139 Noceda v. Arbizo-Directo, 639 Phil. 483; 625 SCRA 472 (2010).
140 G.R. Nos. 76265 and 83280, 11 March 1994, 231 SCRA 88.

488

their privies, it is essential that the issue be

identical. If a particular point or question is in
issue in the second action, and the judgment
will depend on the determination of that
particular point or question, a former judgment
between the same parties or their privies will
be final and conclusive in the second if that
same point or question was in issue and
adjudicated in the first suit. (Nabus v. Court of
Appeals, 193 SCRA 732 [1991]) Identity of cause of
action is not required but merely identity of issue.
Justice Fcliciano, in Smith Bell & Company
(Phils.), Inc. v. Court of Appeals (197 SCRA 201, 210
[1991]), reiterated Lopez v. Reyes (76 SCRA 179
[1977]) in regard to the distinction between bar by
former judgment which bars the prosecution of a
second action upon the same claim, demand, or cause
of action, and conclusiveness of judgment which bars
the relitigation of particular facts or issues in another
litigation between the same parties on a different
claim or cause of action.
The general rule precluding the
relitigation of material facts or questions
which were in issue and adjudicated in
former action are commonly applied to all
matters essentially connected with the
subject matter of the litigation. Thus, it
extends to questions necessarily implied in
the final judgment, although no specific
finding may have been made in reference
thereto and although such matters were
directly referred to in the pleadings and
were not actually or formally presented.
Under this rule, if the record of the former
trial shows that the judgment could not
have been rendered without deciding the
particular matter, it will be considered as
having settled that matter as to all future
actions between the parties and if a
judgment necessarily presupposes certain
premises,

489
VOL. 784, JUNE 27, 2016 489

they are as conclusive as the judgment

itself.141 (Emphases supplied)

The foregoing disquisition finds application to the case
at bar.
Undeniably, the present case is merely an adjunct of the
2004 case, in which the automation contract was declared
to be a nullity. Needless to say, the 2004 Decision has since
become final. As earlier explained, this Court arrived at
several factual findings showing the illegality of the
automation contract; in turn, these findings were used as
basis to justify the declaration of nullity.
A closer scrutiny of the 2004 Decision would reveal that
the judgment could not have been rendered without
deciding particular factual matters in relation to the
following: (1) identity, existence and eligibility of MPC as a
bidder; (2) failure of the ACMs to pass DOST technical
tests; and (3) remedial measures undertaken by the
COMELEC after the award of the automation contract.
Under the principle of conclusiveness of judgment, We are
precluded from relitigating these facts, as these were
essential to the question of nullity. Otherwise stated, the
judgment could not have been rendered without necessarily
deciding on the above enumerated factual matters.
Thus, under the principle of conclusiveness of judgment,
those material facts became binding and conclusive on the
parties, in this case MPEI and, ultimately, the persons that
comprised it. When a right or fact has been judicially tried
and determined by a court of competent jurisdiction, or
when an opportunity for that trial has been given, the
judgment of the court — as long as it remains unreversed
— should be conclusive upon the parties and those in
privity with
_______________
141 Id., at pp. 99-100.

490

them.142 Thus, the CA should not have required

petitioner to present further evidence of fraud on the part
of respondent Willy and MPEI, as it was already
necessarily adjudged in the 2004 case.
To allow respondents to argue otherwise would be
violative of the principle of immutability of judgment.
When a final judgment becomes executory, it becomes
immutable and unalterable and may no longer undergo any
modification, much less any reversal.143 In Navarro v.
Metropolitan Bank & Trust Company,144 this Court
explained that the underlying reason behind this principle
is to avoid delay in the administration of justice and to
avoid allowing judicial controversies to drag on
indefinitely, viz.:
No other procedural law principle is indeed

more settled than that once a judgment
becomes final, it is no longer subject to change,
revision, amendment or reversal, except only
for correction of clerical errors, or the making
of nunc pro tunc entries which cause no
prejudice to any party, or where the judgment
itself is void. The underlying reason for the rule is
twofold: (1) to avoid delay in the administration of
justice and thus make orderly the discharge of judicial
business, and (2) to put judicial controversies to an
end, at the risk of occasional errors, inasmuch as
controversies cannot be allowed to drag on
indefinitely and the rights and obligations of every
litigant must not hang in suspense for an indefinite
period of time. As the Court declared in Yau v.
Silverio:
Litigation must end and terminate sometime
and somewhere, and it is essential to an
effective and efficient administration of justice
that, once a judgment has become fi-
_______________
142 Malayang Samahan ng Manggagawa sa Balanced Food v.

Pinakamasarap Corporation, 464 Phil. 998; 420 SCRA 84 (2004).
143 AAG Trucking v. Yuag, 675 Phil. 108; 659 SCRA 91 (2011).
144 612 Phil. 462, 471; 595 SCRA 149, 159 (2009).

491
VOL. 784, JUNE 27, 2016 491

nal, the winning party be, not through a mere

subterfuge, deprived of the fruits of the verdict.
Courts must therefore guard against any
scheme calculated to bring about that result.
Constituted as they are to put an end to
controversies, courts should frown upon any
attempt to prolong them.
Indeed, just as a losing party has the right to file
an appeal within the prescribed period, the winning
party also has the correlative right to enjoy the
finality of the resolution of his case by the execution
and satisfaction of the judgment. Any attempt to
thwart this rigid rule and deny the prevailing litigant
his right to savor the fruit of his victory must
immediately be struck down.145 x x x. (Emphasis
supplied)

In the instant case, adherence to respondents’ position
would mean a complete disregard of the factual findings
We made in the 2004 Decision, and would certainly be
tantamount to reversing the same. This would invariably
cause further delay in the efforts to recover the amounts of
government money illegally disbursed to respondents back
in 2004.
Next, respondents argue that the findings of fact in the
2004 Decision are not conclusive146 considering that eight
(8) of the fifteen (15) justices of this Court refused to go
along with the factual findings as stated in the majority
opinion.147 This argument fails to convince.
Fourteen (14) Justices participated in the promulgation
of the 2004 Decision. Out of the fourteen (14) Justices,
three (3) Justices registered their dissent,148 and two (2)
Justices wrote their Separate Opinions, each
recommending the dismissal of
_______________
145 Id., at p. 471; pp. 159-160.

146 Rollo, pp. 897-903.
147 Id., at p. 902.
148 Justices Renato C. Corona, Adolfo S. Azcuna and Dante O. Tinga
registered their dissent. Justice Dante O. Tinga wrote a dissenting
opinion.

492

the Petition.149 Of the nine (9) Justices who voted to

grant the Petition, four (4) joined the ponente in his
disposition of the case,150 and two (2) Justices wrote
Separate Concurring Opinions.151 As to the remaining two
(2) Justices, one (1) Justice152 merely concurred in the
result, while the other joined another Justice in her
Separate Opinion.153
Contrary to the allegations of respondents, an
examination of the voting shows that nine (9) Justices
voted in favor of the majority opinion, without any
qualification regarding the factual findings made therein.
In fact, the two (2) Justices who wrote their own
Concurring Opinions echoed the lack of eligibility of MPC
and the failure of the ACMs to pass the mandatory
requirements.
Finally, respondents cannot argue that, from the line of
questioning of then Justice Leonardo A. Quisumbing
during the oral arguments in the 2004 case, he did not
agree with the factual findings of this Court. Oral
arguments before this Court are held precisely to test the
soundness of each proponent’s contentions. The questions
and statements propounded by Justices during such an
exercise are not to be construed as their definitive opinions.
Neither are they indicative of how a Justice shall vote on a
particular issue; indeed, Justice Quisumbing clearly states
in the 2004 Decision that he concurs in the results. At any
rate, statements made by Our Members during oral
arguments are not stare decisis; what is conclusive are the
decisions reached by the majority of the Court.
_______________
149 Justices Hilario G. Davide, Jr. and Jose C. Vitug wrote their
separate opinions voting for dismissal of the Petition.
150 The 2004 Decision was penned by Justice Artemio V. Panganiban,
with Justices Antonio T. Carpio, Ma. Alicia Austria-Martinez, Conchita
Carpio-Morales and Romeo J. Callejo, Sr., concurring therein.
151 Justices Consuelo Ynares-Santiago and Justice Angelina
Sandoval-Gutierrez.
152 Justice Leonardo A. Quisumbing.
153 Justice Reynato S. Puno joins in opinion of Justice Consuelo
Ynares-Santiago.

493
VOL. 784, JUNE 27, 2016 493

IV.
The delivery of 1,991 units of ACMs does not negate
fraud on the part of respondents Willy and MPEI.

The CA in its Amended Decision explained that
respondents could not be considered to have fostered a
fraudulent intent to not honor their obligation, since they
delivered 1,991 units of ACMs.154 In turn, respondents
argue that respondent MPEI had every intention of
fulfilling its obligation, because it in fact delivered the
ACMs as required by the automation contract.155
We disagree with the CA and respondents. The fact that
the ACMs were delivered cannot induce this Court to
disregard the fraud respondent MPEI had employed in
securing the award of the automation contract, as
established above. Furthermore, they cannot cite the fact of
delivery in their favor, considering that the ACMs
delivered were substandard and noncompliant with the
requirements initially set for the automation project.
In Our 2004 Decision, We already found the ACMs to be
below the standards set by the COMELEC. The
noncompliant status of these ACMs was reiterated by this
Court in its 2005 and 2006 Resolutions. The CA therefore
gravely erred in considering the delivery of 1,991 ACMs as
evidence of respondents’ willingness to perform the
obligation (and thus, their lack of fraud) considering that,
as exhaustively discussed earlier, the ACMs delivered were
plagued with defects and failed to meet the requirements
set for the automation project.
Under Article 1233 of the New Civil Code, a debt shall
not be understood to have been paid, unless the thing or
service in which the obligation consists has been completely
delivered or rendered. In this case, respondents cannot be
considered to have performed their obligation, because the
ACMs were defective.
_______________
154 Rollo, p. 32.

155 Id., at pp. 306-307.

494

V.
Estoppel does not lie against the State when it acts to
rectify the mistakes, errors or illegal acts of its
officials
and agents.

Respondents claim that the 2004 Decision may not be
invoked against them, since the petitioner and the
respondents were corespondents and not adverse parties in
the 2004 case. Respondents further explain that since
petitioner and respondents were on the same side at the
time, had the same interest, and took the same position on
the validity and regularity of the automation contract,
petitioner cannot now invoke the 2004 Decision against
them.156
Contrary to respondents’ contention, estoppel generally
finds no application against the State when it acts to
rectify mistakes, errors, irregularities, or illegal acts of its
officials and agents, irrespective of rank. This principle
ensures the efficient conduct of the affairs of the State
without any hindrance to the implementation of laws and
regulations by the government. This holds true even if its
agents’ prior mistakes or illegal acts shackle government
operations and allow others — some by malice — to profit
from official error or misbehavior, and even if the
rectification prejudices parties who have meanwhile
received benefit.157 Indeed, in the 2004 Decision, this Court
even directed the Ombudsman to determine the possible
criminal liability of public officials and private persons
responsible for the contract, and the OSG to undertake
measures to protect the government from the ill effects of
the illegal disbursement of public funds.158
The equitable doctrine of estoppel for the prevention of
injustice and is for the protection of those who have been
misled
_______________
156 Id., at pp. 801-803.
157 Secretary of Finance v. Ora Maura Shipping Lines, 610 Phil. 419;
593 SCRA 14 (2009).
158 Supra note 6.

495
VOL. 784, JUNE 27, 2016 495


by that which on its face was fair and whose character,
as represented, parties to the deception will not, in the
interest of justice, be heard to deny.159 It cannot therefore
be utilized to insulate from liability the very perpetrators of
the injustice complained of.

VI.
The findings of the Office of the Ombudsman are not
controlling in the instant case.

Respondents further claim that this Court has
recognized the fact that it did not determine or adjudge any
fraud that may have been committed by individual
respondents. Rather, it referred the matter to the
Ombudsman for the determination of criminal
liability.160 The Ombudsman in fact made its own
determination that there was no probable cause to hold
individual respondents criminally liable.161
Respondents miss the point. The main issue in the
instant case is whether respondents are guilty of fraud in
obtaining and executing the automation contract, to justify
the issuance of a writ of preliminary attachment in
petitioner’s favor. Meanwhile, the issue relating to the
proceedings before the Ombudsman (and this Court in G.R.
No. 174777) pertains to the finding of lack of probable
cause for the possible criminal liability of respondents
under the Anti-Graft and Corrupt Practices Act.
The matter before Us involves petitioner’s application
for a writ of preliminary attachment in relation to its
recovery of the expended amount under the voided
contract, and not the determination of whether there is
probable cause to hold respondents liable for possible
criminal liability due to the nullification of the automation
contract. Whether or not the Ombuds-
_______________
159 31 C.J.S. Estoppel §1 (1964).

160 Rollo, pp. 893-897.
161 Id., at pp. 807-808.

496

man has found probable cause for possible criminal

liability on the part of respondents is not controlling in the
instant case.

Conclusion

If the State is to be serious in its obligation to develop
and implement coordinated anti-corruption policies that
promote proper management of public affairs and public
property, integrity, transparency and accountability,162 it
needs to establish and promote effective practices aimed at
the prevention of corruption,163 as well as strengthen our
efforts at asset recovery.164
As a signatory to the United Nations Convention
Against Corruption (UNCAC),165 the Philippines
acknowledges its obligation to establish appropriate
systems of procurement based on transparency,
competition and objective criteria in decision-making that
are effective in preventing corruption.166 To promote
transparency, and in line with the country’s efforts to curb
corruption, it is useful to identify certain fraud indicators
or “red flags” that can point to corrupt activity.167 This case
—
_______________
162 Chapter 2, Article 5(1), United Nations Convention Against

Corruption. 2349 U.N.T.S. 41 (in force 14 Dec. 2005) (signed by the
Philippines on 09 Dec. 2003 and ratified on 8 Nov. 2006).
163 Chapter 2, Article 5(2), United Nations Convention Against
164 Chapter 5, Article 51, United Nations Convention Against
165 United Nations Convention Against Corruption, 2349 U.N.T.S. 41
(in force 14 Dec. 2005) (signed by the Philippines on 09 Dec. 2003 and
ratified on 8 Nov. 2006).
166 Chapter 2, Article 9, United Nations Convention Against
167 Most Common Red Flags of Fraud and Corruption in Procurement
(available at <http://siteresources.worldbank.org/INTDOII/

497
VOL. 784, JUNE 27, 2016 497

arguably the first to provide palpable examples of what

could be reasonably considered as “red flags” of fraud and
malfeasance in public procurement — is the Court’s
contribution to the nation’s continuing battle against
corruption, in accordance with its mandate to dispense
justice and safeguard the public interest.
WHEREFORE, premises considered, the Petition is
GRANTED. The Amended Decision dated 22 September
2008 of the Court of Appeals in C.A.-G.R. S.P. No. 95988 is
ANNULLED AND SET ASIDE. A new one is entered
DIRECTING the Regional Trial Court of Makati City,
Branch 59, to ISSUE in Civil Case No. 04-346,
entitled Mega Pacific eSolutions, Inc. v. Republic of the
Philippines, the Writ of Preliminary Attachment prayed for
by petitioner Republic of the Philippines against the
properties of respondent Mega Pacific eSolutions, Inc., and
Willy U. Yu, Bonnie S. Yu, Enrique T. Tansipek, Rosita Y.
Tansipek, Pedro O. Tan, Johnson W. Fong, Bernard I. Fong
and Lauriano Barrios.
No costs.
SO ORDERED.
Leonardo-De Castro, Bersamin, Perlas-Bernabe and

Caguioa, JJ., concur.
Petition granted, amended decision annulled and set

aside.
Notes.—For a writ of attachment to issue under Section

1(d) of Rule 57, the applicant must sufficiently show the
factual circumstances of the alleged fraud because
fraudulent intent cannot be inferred from the debtor’s mere
nonpayment of the debt or failure to comply with his
obligation. (Ng Wee vs. Tankiansee, 545 SCRA 263 [2008])
_______________
Resources/Red_flags_reader_friendly.pdf> [last visited on 8 January

2016]).

498

It is settled that a duly registered levy on attachment

takes preference over a prior unregistered sale. (Rural
Bank of Sta. Barbara [Pangasinan], Inc. vs. The Manila
Mission of the Church of Jesus Christ of Latter Day Saints,
Inc., 596 SCRA 415 [2009])

——o0o——
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G.R. No. 184666. June 27, 2016.*

Remedial Law; Provisional Remedies; Attachment; Through

VOL. 784, JUNE 27, 2016 415

debtor cannot be obtained. This remedy is meant to secure a

416 SUPREME COURT REPORTS ANNOTATED

special duty to disclose certain facts, or unless the

VOL. 784, JUNE 27, 2016 417

Corporations; Piercing the Veil of Corporate Fiction; Veil-

418 SUPREME COURT REPORTS ANNOTATED

frauding petitioner.—The totality of the red flags found in

VOL. 784, JUNE 27, 2016 419

Same; Civil Procedure; Res Judicata; This doctrine of res

420 SUPREME COURT REPORTS ANNOTATED

been given, the judgment of the court — as long as it remains

VOL. 784, JUNE 27, 2016 421

tions by the government. This holds true even if its agents’

PETITION for review on certiorari of an amended decision

422 SUPREME COURT REPORTS ANNOTATED

In the 2004 case, We declared void the automation

2 Rollo, pp. 31-36; in the case entitled Republic of the Philippines v.

ever, the automated system failed to materialize and

424 SUPREME COURT REPORTS ANNOTATED

null and void.6 We held that the COMELEC committed

VOL. 784, JUNE 27, 2016 425

could have been too steep, the Court nonetheless

426 SUPREME COURT REPORTS ANNOTATED

All in all, Comelec subverted the essence of public

VOL. 784, JUNE 27, 2016 427

Private respondents’ Motion

12 Rollo, pp. 153-169; pertaining to the case entitled Mega Pacific

428 SUPREME COURT REPORTS ANNOTATED

14 Rollo, pp. 822-825. The four (4) cases are as follows:

VOL. 784, JUNE 27, 2016 429

In a Resolution issued on 28 June 2006,16 the

430 SUPREME COURT REPORTS ANNOTATED

cases against the public officials, as well as the

COMELEC’s Motion for Leave to

19 Id., at pp. 822-876. The dispositive portion states:

VOL. 784, JUNE 27, 2016 431

available funds to finance the automation of those

Atty. Macalintal’s Omnibus Motion

432 SUPREME COURT REPORTS ANNOTATED

2004 Decision. We held that granting the motion would

We stress once again that the Contract entered into by the

Complaint for Damages filed by

22 Supra note 7 at pp. 4132-4134.

VOL. 784, JUNE 27, 2016 433

Upon the finality of the declaration of nullity of the

23 Rollo, pp. 161-163.

434 SUPREME COURT REPORTS ANNOTATED

lent misrepresentation of respondents as to their

Appeal before the CA

28 Id., at pp. 201-211.

VOL. 784, JUNE 27, 2016 435

As mentioned earlier, the CA in its First

32 Id., at pp. 293-302.

436 SUPREME COURT REPORTS ANNOTATED

against respondents. After all, the State is not estopped

Motion for Reconsideration before