G.R. No. 122452 – 403 Phil. 391 – 350 SCRA 475 – Mercantile Law – Corporation Law – Ultra Vires Acts of Corporate Officers – Derivative Suit
Sometime before November 1992, Vic Ang Siong issued a check to Concord-World Properties, Inc. The check amounted to P83.5 million. The check however bounced. In November 1992, Tam Wing Tak filed an affidavit-complaint for violation of the Anti-Bouncing Checks Law against Ang Siong. The fiscal did not file a criminal information against Ang Siong because apparently Concord-World and Ang Siong are settling out of court (in fact Ang Siong already paid P19 million); and that Tam Wing Tak was not authorized by the Board of Directors of Concord-World to sue Ang Siong. Tam Wing Tak then filed a petition for mandamus to compel the fiscal to file the information. Judge Ramon Makasiar dismissed the petition.
ISSUE: Whether or not the petition should be granted.
HELD: No. The petition for mandamus shall not lie. There was no grave abuse of discretion when the fiscal refused to file the information. Concord-World is the named payee in the check that bounced. As payee, Concord-World is the injured party hence only Concord-World can file the criminal case against Ang Siong but it did not do so because it chose to amicably settle the issue with Ang Siong. Where a corporation is an injured party, its power to sue is lodged with its board of directors or trustees. This can be delegated but Tam Wing Tak never proved that he was authorized by the Board of Concord-World.
But may the suit be considered a derivative suit where the Board’s authorization may not be had?
No. For a derivative suit to prosper, it is required that the minority stockholder suing for and on behalf of the corporation must allege in his complaint that he is suing on a derivative cause of action on behalf of the corporation and all other stockholders similarly situated who may wish to join him in the suit. In this case, this was not complied with. Hence, Tam Wing Tak cannot sue Ang Siong.
