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Republic of the Philippines

REGIONAL TRIAL COURT


NATIONAL CAPITAL JUDICIAL REGION
Branch 128, Caloocan City

PROMETHIUM
MARKETING COMPANY,
represented by NORBERTO
E.CERTEZA,
Plaintiff,

-versus- Civil Case No. C-23830

XIMEX DELIVERY EXPRESS, INC.


Defendant.
x-------------------------------------------------x

REJOINDER
To the Defendants Motion to Resolve Affirmative Defense

The Plaintiff, through the undersigned counsel, most


respectfully states, that:

1. During the continuation of the Preliminary Conference in the


above-captioned case on 6 April 2017, the Honorable Court
mentioned that defendant filed a Reply to Plaintiffs Comment
on the Motion to Resolve Affirmative Defense. Plaintiff had not
received the said Reply, but was given ten (10) days from to file
its Rejoinder;

2. Since the tenth day from 6 April 2017 is a Sunday, Plaintiff has
until 17 April 2017 to file its Rejoinder pursuant to Rule 11 of the
Rules of Court; hence, it is respectfully submitted that the
instant Rejoinder is timely filed;

3. In the said Reply, defendant argues that the authority given to


Mr. William M. Tan by Plaintiff as its General Manager cannot
be delegated to Mr. Norberto Certeza, the representative of the

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Plaintiff in this case, citing the case of Kilusang Mayo Uno vs.
Hon. Garcia1;

4. The said case, however, involves the issue of whether or not


certain memoranda, circulars, and/or orders of the Department
of Transportation and Communications (DOTC) and the Land
Transportation Franchising and Regulatory Board (LTFRB)
which, among others, authorize provincial bus and jeepney
operators to increase or decrease the prescribed transportation
fares without application therefor with the LTFRB and without
hearing and approval thereof by said agency, are valid or not.
The said case involves government agencies endowed with
quasi-legislative powers by virtue of the Public Service Act 2 and
not a domestic partnership involved in a court litigation as in the
instant case;

5. Thus, it is respectfully submitted that the abovementioned case


cited by defendant is not in all fours with the instant case. The
so-called ethical principle cited by defendant actually refers to
the legal doctrine in Political Law potestas delegata non
delegari potest3. The said jurisprudence is under the subject of
Political Law / Administrative Law and not Civil Law concepts
on Partnerships. To prove this point, Plaintiff respectfully quotes
an excerpt of the ponencia in the said case penned by Justice
Kapunan, viz:

Such delegation of legislative power to an


administrative agency is permitted in order to adapt
to the increasing complexity of modern life. As
subjects for governmental regulation multiply, so
does the difficulty of administering the laws. Hence,

1 GR No. 115381, 23 December 1994.

2 Commonwealth Act No. 146, as amended.

3 What has been delegated cannot be delegated.

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specialization even in legislation has become
necessary. Given the task of determining sensitive
and delicate matters as route-fixing and rate-
making for the transport sector, the responsible
regulatory body is entrusted with the power of
subordinate legislation. With this authority, an
administrative body and in this case, the LTFRB,
may implement broad policies laid down in a statute
by filling in the details which the Legislature may
neither have time or competence to provide.
However, nowhere under the aforesaid provisions
of law are the regulatory bodies, the PSC, and
LTFRB alike, authorized to delegate that power to a
common carrier, a transport operator, or other
public service.4

In the case at bench, the authority given by


the LTFRB to the provincial bus operators to set
a fare range over and above the authorized existing
fare, is illegal and invalid as it is tantamount to an
undue delegation of legislative authority. Potestas
delegata non delegari potest. What has been
delegated cannot be delegated. This doctrine is
based on the ethical principle that such a delegated
power constitutes not only a right but a duty to be
performed by the delegate through the
instrumentality of his own judgment and not through
the intervening mind of another. A further delegation
of such power would indeed constitute a negation of
the duty in violation of the trust reposed in the
delegate mandated to discharge it directly. The
policy of allowing the provincial bus operators to
change and increase their fares at will would result
not only to (sic) a chaotic situation but to an
anarchic state of affairs. This would leave the riding
public at the mercy of transport operators who may
increase fares every hour, every day, every month
or every year, whenever it pleases them or
whenever they deem it "necessary" to do so.5

4 Emphasis ours.

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6. Defendant also cited the case of Mago vs. Judge Pealosa-
Formo6 to support its argument that the authority given to Mr.
Tan cannot be delegated to Mr. Certeza. However, Mago
involves the power of municipal trial court judges to conduct
preliminary investigations in which they exercised discretion in
determining whether there was probable cause to summon the
respondent into court. According to the Supreme Court through
Justice Carpio-Morales, such power of discretion being
exercised by municipal trial court judges cannot be delegated to
another. Same with Garcia, the concepts discussed in Mago do
not involve Civil Law concepts on Partnerships, thus, not in all
fours with the instant case;

7. The use of the case of Garcia by defendant as judicial


precedent in this case is misplaced. The doctrine of stare
decisis, which enjoins adherence to judicial precedents, means
that for the sake of certainty, a conclusion reached in one
case should be applied to those that follow if the facts are
substantially the same, even though the parties may be
different7. The Supreme Court further ruled that:

It proceeds from the first principle of justice


that, absent any powerful countervailing
considerations, like cases ought to be decided
alike. Thus, where the same questions relating to
the same event have been put forward by the
parties similarly situated as in a previous case
litigated and decided by a competent court, the rule

5 Emphasis ours. The underlined portion is the only part of the said excerpt
that was used by defendant in its argument in the Reply while deliberately
omitting the rest.

6 A.M. No. MTJ-08-1715, 19 March 2009.

7 Lazatin, et al. vs. Desierto, GR No. 147097, 5 June 2009.

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of stare decisis is a bar to any attempt to relitigate
the same issue.8

8. Thus, the cases cited by defendant cannot be used as judicial


precedents in the instant case because their issues are very
different from the case at bar, to wit:

8.1. The case of Garcia involves the issue of whether or not


certain memoranda, circulars, and/or orders of the DOTC
and the LTFRB which, among others, authorize provincial
bus and jeepney operators to increase or decrease the
prescribed transportation fares without application
therefor with the LTFRB and without hearing and approval
thereof by said agency violates the Political Law doctrine
potestas delegata non delegari potest;

8.2. Mago, on the other hand, raised an issue of whether or


not the judges of the municipal trial courts can delegate
their power to conduct preliminary investigations in which
they exercised discretion in determining whether there
was probable cause to summon the respondent into
court;

8.3. Whereas, the present contention in the instant case


involves an issue of whether or not a General Manager in
a partnership, who is endowed with powers of
administration, can delegate to another person the
authority to initiate a case on behalf of the Partnership;

9. The parties in the instant case are, therefore, not similarly


situated with the parties in the cases of Garcia and Mago. Thus,
the said cases cannot be used as precedents in the instant
case;

8 Supra. note 7.

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10. To reiterate, a partnership is based on delectus personae
or mutual agency9. Thus, it is respectfully submitted that
defendant cannot use the Political Law doctrine potestas
delegata non delegari potest to the case at hand because the
same is not applicable to mutual agencies;

11. Defendant cannot deny the fact that the law is very clear
about the matter. Article 1800 of the Civil Code states that:

Art. 1800. The partner who has been


appointed manager in the articles of partnership
may execute all acts of administration despite
the opposition of his partners, unless he should
act in bad faith; and his power is irrevocable without
just or lawful cause. The vote of the partners
representing the controlling interest shall be
necessary for such revocation of power.10

12. Being the general manager of the Plaintiff, Mr. William M.


Tan is free to do all acts of administration. The act in question,
as argued by Plaintiff in its Opposition dated 22 February 2017,
is part of the Plaintiffs effort to collect from its non-paying
clients, a last resort in its collection efforts. Collections are part
of the Partnerships administration. The said act is actually
beneficial to the interest of the Plaintiff, and the only limitation to
his power is that he should exercise it in good faith. Without
showing that Mr. Tan acted in bad faith in his act of giving
authority to Mr. Certeza to prosecute this case, defendants
contentions would fail;

13. Since Mr. Tans decisions as the general manager of the


Plaintiff shall prevail despite opposition from the other partner
pursuant to Article 1800 of the Civil Code, there is no need for

9 JG Summit Holdings, Inc. vs. Court of Appeals, et al., GR No. 124293, 24


September 2003.

10 Emphasis ours.

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consent from the said partner. To reiterate, Article VIII of the
Plaintiffs Articles of Partnership reads that:

ARTICLE VIII: That the firm shall be under


the management of William Tan, as General
Manager, and as such he/she shall have charge of
the management of the affairs of the
partnership; he/she shall have the power to use
the firms name and to bind the partnership in
making such contracts with the approval of at lease
one partner, and in otherwise performing such acts
as are necessary in the management of the firm.11

14. Plaintiffs argument that consent from the other partner


was necessary is devoid of any merit. Article VIII of the Articles
of Partnership only requires consent from the other partner in
binding the Plaintiff in contracts, while the Special Power of
Attorney issued by Mr. Tan in favor of Mr. Certeza, however, is
not a contract;

15. It is basic in Civil Law that a contract is a meeting of


minds between two persons whereby one binds himself, with
respect to the other, to give something or to render some
service12. According to the Supreme Court in the case of
Sargasso Construction & Development Corporation, et al. vs.
Philippine Ports Authority13 and in the long list of settled
jurisprudence, a contract has the following elements:

a. Consent;
b. Object certain; and
c. Cause or consideration.

16. Clearly, the Special Power of Attorney issued by Mr. Tan


is not a contract. There was no concurrence of the wills of Mr.
Tan and Mr. Certeza with respect to the supposed object and
11 Emphasis ours.

12 Article 1305, Civil Code.

13 GR No. 170530, 5 July 2010.

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cause of the Special Power of Attorney which shall supposed to
constitute it as a contract. There is also no consideration in the
instant case that will qualify the Special Power of Attorney as a
contract. Thus, the said Special Power of Attorney does not
have the complete elements to be considered as a contract;

17. It is therefore absurd that defendant is looking for the


approval from the other partner because it is actually
unnecessary in the case at hand;

18. It is also respectfully submitted that there is no law or


jurisprudence that prohibits the general manager of the
Partnership to issue special powers of attorney. On the
contrary, Article 1800 of the Civil Code and Article VIII of the
Plaintiffs Articles of Partnership give Mr. Tan, as general
manager of the Plaintiff, broad powers to exercise.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed for by


the Plaintiff of this Honorable Court to:

1. RESOLVE the defendants Affirmative Defense in favor of the


Plaintiff;

2. To DENY defendants prayer to dismiss the instant case for lack


of merit; and

3. SET the above-captioned case for Pre-Trial.

Other just and equitable relief under the premises is likewise


being prayed for.

Quezon City for Caloocan City, 11 April 2017.

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FREDERICK FERMIN H. MAGTIBAY
Attorneys Roll No. 49007
IBP No. 1019563-1.18.16- Cavite
PTR No. 7995340 -5-27-16 Cavite
MCLE V- 0022820- 7.4.16
Email address: mags_law19@yahoo.com

CC:
HM Ramos and Associates Law Office
Counsel for defendant
6/F Erlag Building, 102 Esteban St.,
Legaspi Village, Makati City

EXPLANATION

Due to distance and lack of messengerial personnel, a copy of


the instant Motion had been served upon opposing parties through
registered mail.

FREDERICK FERMIN H. MAGTIBAY

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