G.R. No.

167530, March 13, 2013

706 Phil. 297

FIRST DIVISION
G.R. No. 167530, March 13, 2013

PHILIPPINE NATIONAL BANK, PETITIONER, VS. HYDRO

RESOURCES CONTRACTORS CORPORATION, RESPONDENT.
G.R. NO. 167561]
ASSET PRIVATIZATION TRUST, PETITIONER, VS. HYDRO
RESOURCES CONTRACTORS CORPORATION, RESPONDENT.
G.R. NO. 167603]
DEVELOPMENT BANK OF THE PHILIPPINES, PETITIONER,
VS. HYDRO RESOURCES CONTRACTORS CORPORATION,
RESPONDENT.
DECISION

LEONARDO-DE CASTRO, J.:

These petitions for review on certiorari[1] assail the Decision[2] dated November 30,
2004 and the Resolution[3] dated March 22, 2005 of the Court of Appeals in CA-G.R.
CV No. 57553. The said Decision affirmed the Decision[4] dated November 6, 1995
of the Regional Trial Court (RTC) of Makati City, Branch 62, granting a judgment
award of P8,370,934.74, plus legal interest, in favor of respondent Hydro Resources
Contractors Corporation (HRCC) with the modification that the Privatization and
Management Office (PMO), successor of petitioner Asset Privatization Trust (APT),[5]
has been held solidarily liable with Nonoc Mining and Industrial Corporation (NMIC)
[6]
and petitioners Philippine National Bank (PNB) and Development Bank of the
Philippines (DBP), while the Resolution denied reconsideration separately prayed for
by PNB, DBP, and APT.

Sometime in 1984, petitioners DBP and PNB foreclosed on certain mortgages made
on the properties of Marinduque Mining and Industrial Corporation (MMIC). As a
result of the foreclosure, DBP and PNB acquired substantially all the assets of MMIC
and resumed the business operations of the defunct MMIC by organizing NMIC.[7]
DBP and PNB owned 57% and 43% of the shares of NMIC, respectively, except for
five qualifying shares.[8] As of September 1984, the members of the Board of
Directors of NMIC, namely, Jose Tengco, Jr., Rolando Zosa, Ruben Ancheta, Geraldo
Agulto, and Faustino Agbada, were either from DBP or PNB.[9]

Subsequently, NMIC engaged the services of Hercon, Inc., for NMIC’s Mine
Stripping and Road Construction Program in 1985 for a total contract price of
P35,770,120. After computing the payments already made by NMIC under the
program and crediting the NMIC’s receivables from Hercon, Inc., the latter found that
NMIC still has an unpaid balance of P8,370,934.74.[10] Hercon, Inc. made several
demands on NMIC, including a letter of final demand dated August 12, 1986, and
when these were not heeded, a complaint for sum of money was filed in the RTC of
Makati, Branch 136 seeking to hold petitioners NMIC, DBP, and PNB solidarily liable
for the amount owing Hercon, Inc.[11] The case was docketed as Civil Case No.

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15375.

Subsequent to the filing of the complaint, Hercon, Inc. was acquired by HRCC in a
merger. This prompted the amendment of the complaint to substitute HRCC for
Hercon, Inc.[12]

Thereafter, on December 8, 1986, then President Corazon C. Aquino issued

Proclamation No. 50 creating the APT for the expeditious disposition and privatization
of certain government corporations and/or the assets thereof. Pursuant to the said
Proclamation, on February 27, 1987, DBP and PNB executed their respective deeds of
transfer in favor of the National Government assigning, transferring and conveying
certain assets and liabilities, including their respective stakes in NMIC.[13] In turn and
on even date, the National Government transferred the said assets and liabilities to the
APT as trustee under a Trust Agreement.[14] Thus, the complaint was amended for the
second time to implead and include the APT as a defendant.

In its answer,[15] NMIC claimed that HRCC had no cause of action. It also asserted
that its contract with HRCC was entered into by its then President without any
authority. Moreover, the said contract allegedly failed to comply with laws, rules and
regulations concerning government contracts. NMIC further claimed that the contract
amount was manifestly excessive and grossly disadvantageous to the government.
NMIC made counterclaims for the amounts already paid to Hercon, Inc. and attorney’s
fees, as well as payment for equipment rental for four trucks, replacement of parts and
other services, and damage to some of NMIC’s properties.[16]

For its part, DBP’s answer[17] raised the defense that HRCC had no cause of action
against it because DBP was not privy to HRCC’s contract with NMIC. Moreover,
NMIC’s juridical personality is separate from that of DBP. DBP further interposed a
counterclaim for attorney’s fees.[18]

PNB’s answer[19] also invoked lack of cause of action against it. It also raised
estoppel on HRCC’s part and laches as defenses, claiming that the inclusion of PNB in
the complaint was the first time a demand for payment was made on it by HRCC.
PNB also invoked the separate juridical personality of NMIC and made counterclaims
for moral damages and attorney’s fees.[20]

APT set up the following defenses in its answer[21]: lack of cause of action against it,
lack of privity between Hercon, Inc. and APT, and the National Government’s
preferred lien over the assets of NMIC.[22]

After trial, the RTC of Makati rendered a Decision dated November 6, 1995 in favor
of HRCC. It pierced the corporate veil of NMIC and held DBP and PNB solidarily
liable with NMIC:

On the issue of whether or not there is sufficient ground to pierce the veil
of corporate fiction, this Court likewise finds for the plaintiff.

From the documentary evidence adduced by the plaintiff, some of which

were even adopted by defendants and DBP and PNB as their own evidence
(Exhibits “I”, “I-1”, “I-2”, “I-3”, “I-4”, “I-5”, “I-5-A”, “I-5-B”, “I-5-C”,
“I-5-D” and submarkings, inclusive), it had been established that except for
five (5) qualifying shares, [NMIC] is owned by defendants DBP and PNB,
with the former owning 57% thereof, and the latter 43%. As of September
24, 1984, all the members of [NMIC]’s Board of Directors, namely,
Messrs. Jose Tengco, Jr., Rolando M. Zosa, Ruben Ancheta, Geraldo

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Agulto, and Faustino Agbada are either from DBP or PNB (Exhibits “I-5”,
“I-5-C”, “I-5-D”).

The business of [NMIC] was then also being conducted and controlled by
both DBP and PNB. In fact, it was Rolando M. Zosa, then Governor of
DBP, who was signing and entering into contracts with third persons, on
behalf of [NMIC].

In this jurisdiction, it is well-settled that “where it appears that the business

enterprises are owned, conducted and controlled by the same parties, both
law and equity will, when necessary to protect the rights of third persons,
disregard legal fiction that two (2) corporations are distinct entities, and
treat them as identical.” (Phil. Veterans Investment Development Corp. vs.
CA, 181 SCRA 669).

From all indications, it appears that [NMIC] is a mere adjunct, business

conduit or alter ego of both DBP and PNB. Thus, the DBP and PNB are
jointly and severally liable with [NMIC] for the latter’s unpaid obligations
to plaintiff.[23]

Having found DBP and PNB solidarily liable with NMIC, the dispositive portion of
the Decision of the trial court reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in

favor of the plaintiff HYDRO RESOURCES CONTRACTORS
CORPORATION and against the defendant[s] NONOC MINING AND
INDUSTRIAL CORPORATION, DEVELOPMENT BANK OF THE
PHILIPPINES and PHILIPPINE NATIONAL BANK, ordering the
aforenamed defendants, to pay the plaintiff jointly and severally, the sum
of P8,370,934.74 plus legal interest thereon from date of demand, and
attorney’s fees equivalent to 25% of the judgment award.

The complaint against APT is hereby dismissed. However, APT, as trustee

of NONOC MINING AND INDUSTRIAL CORPORATION is directed to
ensure compliance with this Decision.[24]

DBP and PNB filed their respective appeals in the Court of Appeals. Both insisted
that it was wrong for the RTC to pierce the veil of NMIC’s corporate personality and
hold DBP and PNB solidarily liable with NMIC.[25]

The Court of Appeals rendered the Decision dated November 30, 2004, affirmed the
piercing of the veil of the corporate personality of NMIC and held DBP, PNB, and
APT solidarily liable with NMIC. In particular, the Court of Appeals made the
following findings:

In the case before Us, it is indubitable that [NMIC] was owned by

appellants DBP and PNB to the extent of 57% and 43% respectively; that
said two (2) appellants are the only stockholders, with the qualifying
stockholders of five (5) consisting of its own officers and included in its
charter merely to comply with the requirement of the law as to number of
incorporators; and that the directorates of DBP, PNB and [NMIC] are
interlocked.

xxxx

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We find it therefore correct for the lower court to have ruled that:

“From all indications, it appears that [NMIC] is a mere adjunct,

business conduit or alter ego of both DBP and PNB. Thus, the
DBP and PNB are jointly and severally liable with [NMIC] for
the latter’s unpaid obligation to plaintiff.”[26] (Citation omitted.)

The Court of Appeals then concluded that, “in keeping with the concept of justice and
fair play,” the corporate veil of NMIC should be pierced, ratiocinating:

For to treat [NMIC] as a separate legal entity from DBP and PNB for the
purpose of securing beneficial contracts, and then using such separate
entity to evade the payment of a just debt, would be the height of injustice
and iniquity. Surely that could not have been the intendment of the law
with respect to corporations. x x x.[27]

The dispositive portion of the Decision of the Court of Appeals reads:

WHEREFORE, premises considered, the Decision appealed from is hereby

MODIFIED. The judgment in favor of appellee Hydro Resources
Contractors Corporation in the amount of P8,370,934.74 with legal interest
from date of demand is hereby AFFIRMED, but the dismissal of the case
as against Assets Privatization Trust is REVERSED, and its successor the
Privatization and Management Office is INCLUDED as one of those
jointly and severally liable for such indebtedness. The award of attorney’s
fees is DELETED.

All other claims and counter-claims are hereby DISMISSED.

Costs against appellants.[28]

The respective motions for reconsideration of DBP, PNB, and APT were denied.[29]

Hence, these consolidated petitions.[30]

All three petitioners assert that NMIC is a corporate entity with a juridical personality
separate and distinct from both PNB and DBP. They insist that the majority
ownership by DBP and PNB of NMIC is not a sufficient ground for disregarding the
separate corporate personality of NMIC because NMIC was not a mere adjunct,
business conduit or alter ego of DBP and PNB. According to them, the application of
the doctrine of piercing the corporate veil is unwarranted as nothing in the records
would show that the ownership and control of the shareholdings of NMIC by DBP and
PNB were used to commit fraud, illegality or injustice. In the absence of evidence
that the stock control by DBP and PNB over NMIC was used to commit some fraud or
a wrong and that said control was the proximate cause of the injury sustained by
HRCC, resort to the doctrine of “piercing the veil of corporate entity” is misplaced.[31]

DBP and PNB further argue that, assuming they may be held solidarily liable with
NMIC to pay NMIC’s exclusive and separate corporate indebtedness to HRCC, such
liability of the two banks was transferred to and assumed by the National Government
through the APT, now the PMO, under the respective deeds of transfer both dated
February 27, 1997 executed by DBP and PNB pursuant to Proclamation No. 50 dated

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December 8, 1986 and Administrative Order No. 14 dated February 3, 1987.[32]

For its part, the APT contends that, in the absence of an unqualified assumption by the
National Government of all liabilities incurred by NMIC, the National Government
through the APT could not be held liable for NMIC’s contractual liability. The APT
asserts that HRCC had not sufficiently shown that the APT is the successor-in-interest
of all the liabilities of NMIC, or of DBP and PNB as transferors, and that the adjudged
liability is included among the liabilities assigned and transferred by DBP and PNB in
favor of the National Government.[33]

HRCC counters that both the RTC and the CA correctly applied the doctrine of
“piercing the veil of corporate fiction.” It claims that NMIC was the alter ego of DBP
and PNB which owned, conducted and controlled the business of NMIC as shown by
the following circumstances: NMIC was owned by DBP and PNB, the officers of DBP
and PNB were also the officers of NMIC, and DBP and PNB financed the operations
of NMIC. HRCC further argues that a parent corporation may be held liable for the
contracts or obligations of its subsidiary corporation where the latter is a mere agency,
instrumentality or adjunct of the parent corporation.[34]

Moreover, HRCC asserts that the APT was properly held solidarily liable with DBP,
PNB, and NMIC because the APT assumed the obligations of DBP and PNB as the
successor-in-interest of the said banks with respect to the assets and liabilities of
NMIC.[35] As trustee of the Republic of the Philippines, the APT also assumed the
responsibility of the Republic pursuant to the following provision of Section 2.02 of
the respective deeds of transfer executed by DBP and PNB in favor of the Republic:

SECTION 2. TRANSFER OF BANK’S LIABILITIES

xxxx

2.02 With respect to the Bank’s liabilities which are contingent and those
liabilities where the Bank’s creditors consent to the transfer thereof is not
obtained, said liabilities shall remain in the books of the BANK with the
GOVERNMENT funding the payment thereof.[36]

After a careful review of the case, this Court finds the petitions impressed with merit.

A corporation is an artificial entity created by operation of law. It possesses the right

of succession and such powers, attributes, and properties expressly authorized by law
or incident to its existence.[37] It has a personality separate and distinct from that of its
stockholders and from that of other corporations to which it may be connected.[38] As
a consequence of its status as a distinct legal entity and as a result of a conscious
policy decision to promote capital formation,[39] a corporation incurs its own liabilities
and is legally responsible for payment of its obligations.[40] In other words, by virtue
of the separate juridical personality of a corporation, the corporate debt or credit is not
the debt or credit of the stockholder.[41] This protection from liability for shareholders
is the principle of limited liability.[42]

Equally well-settled is the principle that the corporate mask may be removed or the
corporate veil pierced when the corporation is just an alter ego of a person or of
another corporation. For reasons of public policy and in the interest of justice, the
corporate veil will justifiably be impaled only when it becomes a shield for fraud,
illegality or inequity committed against third persons.[43]

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However, the rule is that a court should be careful in assessing the milieu where the
doctrine of the corporate veil may be applied. Otherwise an injustice, although
unintended, may result from its erroneous application.[44] Thus, cutting through the
corporate cover requires an approach characterized by due care and caution:

Hence, any application of the doctrine of piercing the corporate veil

should be done with caution. A court should be mindful of the milieu
where it is to be applied. It must be certain that the corporate fiction
was misused to such an extent that injustice, fraud, or crime was
committed against another, in disregard of its rights. The wrongdoing
must be clearly and convincingly established; it cannot be presumed. x
x x.[45] (Emphases supplied; citations omitted.)

Sarona v. National Labor Relations Commission[46] has defined the scope of

application of the doctrine of piercing the corporate veil:

The doctrine of piercing the corporate veil applies only in three (3) basic
areas, namely: 1) defeat of public convenience as when the corporate
fiction is used as a vehicle for the evasion of an existing obligation; 2)
fraud cases or when the corporate entity is used to justify a wrong, protect
fraud, or defend a crime; or 3) alter ego cases, where a corporation is
merely a farce since it is a mere alter ego or business conduit of a person,
or where the corporation is so organized and controlled and its affairs are
so conducted as to make it merely an instrumentality, agency, conduit or
adjunct of another corporation. (Citation omitted.)

Here, HRCC has alleged from the inception of this case that DBP and PNB (and the
APT as assignee of DBP and PNB) should be held solidarily liable for using NMIC as
alter ego.[47] The RTC sustained the allegation of HRCC and pierced the corporate
veil of NMIC pursuant to the alter ego theory when it concluded that NMIC “is a mere
adjunct, business conduit or alter ego of both DBP and PNB.”[48] The Court of
Appeals upheld such conclusion of the trial court.[49] In other words, both the trial and
appellate courts relied on the alter ego theory when they disregarded the separate
corporate personality of NMIC.

In this connection, case law lays down a three-pronged test to determine the
application of the alter ego theory, which is also known as the instrumentality theory,
namely:

(1) Control, not mere majority or complete stock control, but complete
domination, not only of finances but of policy and business practice in
respect to the transaction attacked so that the corporate entity as to this
transaction had at the time no separate mind, will or existence of its own;

(2) Such control must have been used by the defendant to commit fraud or
wrong, to perpetuate the violation of a statutory or other positive legal
duty, or dishonest and unjust act in contravention of plaintiff’s legal right;
and

(3) The aforesaid control and breach of duty must have proximately
caused the injury or unjust loss complained of.[50] (Emphases omitted.)

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G.R. No. 167530, March 13, 2013

The first prong is the “instrumentality” or “control” test. This test requires that the
subsidiary be completely under the control and domination of the parent.[51] It
examines the parent corporation’s relationship with the subsidiary.[52] It inquires
whether a subsidiary corporation is so organized and controlled and its affairs are so
conducted as to make it a mere instrumentality or agent of the parent corporation such
that its separate existence as a distinct corporate entity will be ignored.[53] It seeks to
establish whether the subsidiary corporation has no autonomy and the parent
corporation, though acting through the subsidiary in form and appearance, “is
operating the business directly for itself.”[54]

The second prong is the “fraud” test. This test requires that the parent corporation’s
conduct in using the subsidiary corporation be unjust, fraudulent or wrongful.[55] It
examines the relationship of the plaintiff to the corporation.[56] It recognizes that
piercing is appropriate only if the parent corporation uses the subsidiary in a way that
harms the plaintiff creditor.[57] As such, it requires a showing of “an element of
injustice or fundamental unfairness.”[58]

The third prong is the “harm” test. This test requires the plaintiff to show that the
defendant’s control, exerted in a fraudulent, illegal or otherwise unfair manner toward
it, caused the harm suffered.[59] A causal connection between the fraudulent conduct
committed through the instrumentality of the subsidiary and the injury suffered or the
damage incurred by the plaintiff should be established. The plaintiff must prove that,
unless the corporate veil is pierced, it will have been treated unjustly by the
defendant’s exercise of control and improper use of the corporate form and, thereby,
suffer damages.[60]

To summarize, piercing the corporate veil based on the alter ego theory requires the
concurrence of three elements: control of the corporation by the stockholder or parent
corporation, fraud or fundamental unfairness imposed on the plaintiff, and harm or
damage caused to the plaintiff by the fraudulent or unfair act of the corporation. The
absence of any of these elements prevents piercing the corporate veil.[61]

This Court finds that none of the tests has been satisfactorily met in this case.

In applying the alter ego doctrine, the courts are concerned with reality and not form,
with how the corporation operated and the individual defendant’s relationship to that
operation.[62] With respect to the control element, it refers not to paper or formal
control by majority or even complete stock control but actual control which amounts
to “such domination of finances, policies and practices that the controlled corporation
has, so to speak, no separate mind, will or existence of its own, and is but a conduit for
its principal.”[63] In addition, the control must be shown to have been exercised at the
time the acts complained of took place.[64]

Both the RTC and the Court of Appeals applied the alter ego theory and penetrated
the corporate cover of NMIC based on two factors: (1) the ownership by DBP and
PNB of effectively all the stocks of NMIC, and (2) the alleged interlocking
directorates of DBP, PNB and NMIC.[65] Unfortunately, the conclusion of the trial
and appellate courts that the DBP and PNB fit the alter ego theory with respect to
NMIC’s transaction with HRCC on the premise of complete stock ownership and
interlocking directorates involved a quantum leap in logic and law exposing a gap in
reason and fact.

While ownership by one corporation of all or a great majority of stocks of another

corporation and their interlocking directorates may serve as indicia of control, by

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G.R. No. 167530, March 13, 2013

themselves and without more, however, these circumstances are insufficient to

establish an alter ego relationship or connection between DBP and PNB on the one
hand and NMIC on the other hand, that will justify the puncturing of the latter’s
corporate cover. This Court has declared that “mere ownership by a single
stockholder or by another corporation of all or nearly all of the capital stock of a
corporation is not of itself sufficient ground for disregarding the separate corporate
personality.”[66] This Court has likewise ruled that the “existence of interlocking
directors, corporate officers and shareholders is not enough justification to pierce the
veil of corporate fiction in the absence of fraud or other public policy
considerations.”[67]

True, the findings of fact of the Court of Appeals are conclusive and cannot be
reviewed on appeal to this Court, provided they are borne out of the record or are
based on substantial evidence.[68] It is equally true that the question of whether one
corporation is merely an alter ego of another is purely one of fact. So is the question
of whether a corporation is a paper company, a sham or subterfuge or whether the
requisite quantum of evidence has been adduced warranting the piercing of the veil of
corporate personality.[69] Nevertheless, it has been held in Sarona v. National Labor
Relations Commission[70] that this Court has the power to resolve a question of fact,
such as whether a corporation is a mere alter ego of another entity or whether the
corporate fiction was invoked for fraudulent or malevolent ends, if the findings in the
assailed decision are either not supported by the evidence on record or based on a
misapprehension of facts.

In this case, nothing in the records shows that the corporate finances, policies and
practices of NMIC were dominated by DBP and PNB in such a way that NMIC could
be considered to have no separate mind, will or existence of its own but a mere
conduit for DBP and PNB. On the contrary, the evidence establishes that HRCC knew
and acted on the knowledge that it was dealing with NMIC, not with NMIC’s
stockholders. The letter proposal of Hercon, Inc., HRCC’s predecessor-in-interest,
regarding the contract for NMIC’s mine stripping and road construction program was
addressed to and accepted by NMIC.[71] The various billing reports, progress reports,
statements of accounts and communications of Hercon, Inc./HRCC regarding NMIC’s
mine stripping and road construction program in 1985 concerned NMIC and NMIC’s
officers, without any indication of or reference to the control exercised by DBP and/or
PNB over NMIC’s affairs, policies and practices.[72]

HRCC has presented nothing to show that DBP and PNB had a hand in the act
complained of, the alleged undue disregard by NMIC of the demands of HRCC to
satisfy the unpaid claims for services rendered by HRCC in connection with NMIC’s
mine stripping and road construction program in 1985. On the contrary, the overall
picture painted by the evidence offered by HRCC is one where HRCC was dealing
with NMIC as a distinct juridical person acting through its own corporate officers.[73]

Moreover, the finding that the respective boards of directors of NMIC, DBP, and PNB
were interlocking has no basis. HRCC’s Exhibit “I-5,”[74] the initial General
Information Sheet submitted by NMIC to the Securities and Exchange Commission,
relied upon by the trial court and the Court of Appeals may have proven that DBP and
PNB owned the stocks of NMIC to the extent of 57% and 43%, respectively.
However, nothing in it supports a finding that NMIC, DBP, and PNB had interlocking
directors as it only indicates that, of the five members of NMIC’s board of directors,
four were nominees of either DBP or PNB and only one was a nominee of both DBP
and PNB.[75] Only two members of the board of directors of NMIC, Jose Tengco, Jr.
and Rolando Zosa, were established to be members of the board of governors of DBP
and none was proved to be a member of the board of directors of PNB.[76] No director
of NMIC was shown to be also sitting simultaneously in the board of

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governors/directors of both DBP and PNB.

In reaching its conclusion of an alter ego relationship between DBP and PNB on the
one hand and NMIC on the other hand, the Court of Appeals invoked Sibagat Timber
Corporation v. Garcia,[77] which it described as “a case under a similar factual
milieu.”[78] However, in Sibagat Timber Corporation, this Court took care to
enumerate the circumstances which led to the piercing of the corporate veil of Sibagat
Timber Corporation for being the alter ego of Del Rosario & Sons Logging
Enterprises, Inc. Those circumstances were as follows: holding office in the same
building, practical identity of the officers and directors of the two corporations and
assumption of management and control of Sibagat Timber Corporation by the
directors/officers of Del Rosario & Sons Logging Enterprises, Inc.

Here, DBP and PNB maintain an address different from that of NMIC.[79] As already
discussed, there was insufficient proof of interlocking directorates. There was not
even an allegation of similarity of corporate officers. Instead of evidence that DBP
and PNB assumed and controlled the management of NMIC, HRCC’s evidence shows
that NMIC operated as a distinct entity endowed with its own legal personality. Thus,
what obtains in this case is a factual backdrop different from, not similar to, Sibagat
Timber Corporation.

In relation to the second element, to disregard the separate juridical personality of a

corporation, the wrongdoing or unjust act in contravention of a plaintiff’s legal rights
must be clearly and convincingly established; it cannot be presumed. Without a
demonstration that any of the evils sought to be prevented by the doctrine is present, it
does not apply.[80]

In this case, the Court of Appeals declared:

We are not saying that PNB and DBP are guilty of fraud in forming
[NMIC], nor are we implying that [NMIC] was used to conceal fraud. x x
x.[81]

Such a declaration clearly negates the possibility that DBP and PNB exercised control
over NMIC which DBP and PNB used “to commit fraud or wrong, to perpetuate the
violation of a statutory or other positive legal duty, or dishonest and unjust act in
contravention of plaintiff’s legal rights.” It is a recognition that, even assuming that
DBP and PNB exercised control over NMIC, there is no evidence that the juridical
personality of NMIC was used by DBP and PNB to commit a fraud or to do a wrong
against HRCC.

There being a total absence of evidence pointing to a fraudulent, illegal or unfair act
committed against HRCC by DBP and PNB under the guise of NMIC, there is no
basis to hold that NMIC was a mere alter ego of DBP and PNB. As this Court ruled in
Ramoso v. Court of Appeals[82]:

As a general rule, a corporation will be looked upon as a legal entity,

unless and until sufficient reason to the contrary appears. 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. Also, the corporate entity may be disregarded in the
interest of justice in such cases as fraud that may work inequities among
members of the corporation internally, involving no rights of the public or
third persons. In both instances, there must have been fraud, and proof
of it. For the separate juridical personality of a corporation to be

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disregarded, the wrongdoing must be clearly and convincingly established.

It cannot be presumed.

As regards the third element, in the absence of both control by DBP and PNB of
NMIC and fraud or fundamental unfairness perpetuated by DBP and PNB through the
corporate cover of NMIC, no harm could be said to have been proximately caused by
DBP and PNB on HRCC for which HRCC could hold DBP and PNB solidarily liable
with NMIC.

Considering that, under the deeds of transfer executed by DBP and PNB, the liability
of the APT as transferee of the rights, titles and interests of DBP and PNB in NMIC
will attach only if DBP and PNB are held liable, the APT incurs no liability for the
judgment indebtedness of NMIC. Even HRCC recognizes that “as assignee of DBP
and PNB’s loan receivables,” the APT simply “stepped into the shoes of DBP and
PNB with respect to the latter’s rights and obligations” in NMIC.[83] As such
assignee, therefore, the APT incurs no liability with respect to NMIC other than
whatever liabilities may be imputable to its assignors, DBP and PNB.

Even under Section 2.02 of the respective deeds of transfer executed by DBP and PNB
which HRCC invokes, the APT cannot be held liable. The contingent liability for
which the National Government, through the APT, may be held liable under the said
provision refers to contingent liabilities of DBP and PNB. Since DBP and PNB may
not be held solidarily liable with NMIC, no contingent liability may be imputed to the
APT as well. Only NMIC as a distinct and separate legal entity is liable to pay its
corporate obligation to HRCC in the amount of P8,370,934.74, with legal interest
thereon from date of demand.

As trustee of the assets of NMIC, however, the APT should ensure compliance by
NMIC of the judgment against it. The APT itself acknowledges this.[84]

WHEREFORE, the petitions are hereby GRANTED.

The complaint as against Development Bank of the Philippines, the Philippine

National Bank, and the Asset Privatization Trust, now the Privatization and
Management Office, is DISMISSED for lack of merit. The Asset Privatization Trust,
now the Privatization and Management Office, as trustee of Nonoc Mining and
Industrial Corporation, now the Philnico Processing Corporation, is DIRECTED to
ensure compliance by the Nonoc Mining and Industrial Corporation, now the Philnico
Processing Corporation, with this Decision.

SO ORDERED.

Sereno, C.J., (Chairperson), Bersamin, Villarama, Jr., and Reyes, JJ., concur.

[1]
Under Rule 45 of the Rules of Court.

[2]
Rollo (G.R. No. 167530), pp. 56-68; penned by Associate Justice Romeo A.
Brawner with Associate Justices Mariano C. del Castillo (now a member of this Court)
and Magdangal M. de Leon, concurring.

[3]
Id. at 70.

[4]
Id. at 122-136; penned by Judge Roberto C. Diokno.

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G.R. No. 167530, March 13, 2013

[5]
For purposes of these petitions, the PMO will be referred to as the APT.

[6]
Now, the Philnico Processing Corporation. (Rollo G.R. No. 167561], p. 46.)

[7]
Rollo (G.R. No. 167530), p. 57.

[8]
Id. at 65.

[9]
Id. at 135.

[10]
Id. at 57.

[11]
Id. at 123 and 133.

[12]
Id. at 122.

[13]
Rollo (G.R. No. 167561), pp. 78-103 and 104-113, respectively.

[14]
Rollo (G.R. No. 167530), pp. 116-121.

[15]
Records, Vol. I, pp. 79-87.

[16]
Id. at 81-85.

[17]
Id. at 56-64.

[18]
Id. at 58-60.

[19]
Id. at 47-51.

[20]
Id. at 49-50.

[21]
Id., Vol. II, pp. 432-436.

[22]
Id. at 434.

[23]
Rollo (G.R. No. 167530), p. 135.

[24]
Id. at 136.

[25]
Briefs for Defendant-Appellants Philippine National Bank and Development Bank
of the Philippines. (CA rollo, pp. 104-127 and 167-190, respectively.)

[26]
Rollo (G.R. No. 167530), pp. 65-66.

[27]
Id. at 66.

[28]
Id. at 67.

[29]
Id. at 70.

[30]
Upon motion of HRCC, the petitions separately filed by DBP, PNB, and APT have

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G.R. No. 167530, March 13, 2013

been consolidated pursuant to this Court’s Resolution dated September 26, 2005.

[31]
Rollos (G.R. No. 167530), pp. 40-46, (G.R. No. 167561), pp. 42-46 and (G.R. No.
167603), pp. 37-44.

[32]
Rollos (G.R. No. 167530), pp. 46-50 and (G.R. No. 167603), pp. 45-47.

[33]
Rollo (G.R. No. 167561), pp. 49-50.

[34]
Rollo (G.R. No. 167530), pp. 185-188.

[35]
Id. at 188.

[36]
Id. at 84.

[37]
Sarona v. National Labor Relations Commission, G.R. No. 185280, January 18,
2012, 663 SCRA 394, 416.

[38]
Francisco v. Mallen, Jr., G.R. No. 173169, September 22, 2010, 631 SCRA 118,
125.

[39]
Rands,William, Domination of a Subsidiary by a Parent, 32 Ind. L. Rev. 421, 423
(1999) citing Philip I. Blumberg, Limited Liability and Corporate Groups, 11 J. Corp.
L. 573, 575-576 (1986) and Stephen Presser, Thwarting the Killing of the
Corporation: Limited Liability, Democracy and Economics, 87 NW. U. L. Rev. 148,
155 (1992).

[40]
Id.

[41]
Good Earth Emporium, Inc. v. Court of Appeals, G.R. No. 82797, February 27,
1991, 194 SCRA 544, 550.

[42]
Rands,William, supra note 39.

[43]
Philippine National Bank v. Andrada Electric & Engineering Company, 430 Phil.
882, 894 (2002).

[44]
Francisco Motors Corporation v. Court of Appeals, 368 Phil. 374, 386 (1999).

[45]
Philippine National Bank v. Andrada Electric Engineering Company, supra note
43 at 894-895.

[46]
Supra note 37 at 417.

[47]
See paragraphs 8(b) and 9 of the original Complaint and of the first and second
Amended Complaints. (Records, Vol. I, pp. 3-4, 190-191 and 334-335, respectively.)

[48]
Rollo (G.R. No. 167530), p. 135.

[49]
Id. at 66.

[50]
Concept Builders, Inc. v. National Labor Relations Commission, 326 Phil. 955,
966 (1996).

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G.R. No. 167530, March 13, 2013

[51]
Reed, Bradley, Clearing Away the Mist: Suggestions for Developing a Principled
Veil Piercing Doctrine in China, Vanderbilt Journal of International Law 39: 1643,
citing Stephen Presser, PIERCING THE CORPORATE VEIL, § 1:6, West (2004).

[52]
Id., citing White v. Jorgenson, 322 N.W.2d 607, 608 (Minn. 1982) and Multimedia
Publishing of South Carolina, Inc. v. Mullins, 431 S.E.2d 569, 571 (S.C. 1993).

[53]
Id. citing Maurice Wormser, DISREGARD OF THE CORPORATE FICTION
AND ALLIED CORPORATE PROBLEMS (1929).

[54]
Id.

[55]
Id.

[56]
White v. Jorgenson, supra note 52.

[57]
Reed, Bradley, supra note 51.

[58]
White v. Jorgenson, supra note 52, citing Victoria Elevator Co. v. Meriden Grain
Co., 283 N.W.2d 509, 512 (Minn. 1979).

[59]
Olthoff, Mark, Beyond the Form: Should the Corporate Veil Be Pierced?, 64
UMKC L. Rev. 311, 318 (1995).

[60]
Id.

[61]
Concept Builders, Inc. v. National Labor Relations Commission, supra note 50 at
966.

[62]
Nisce v. Equitable PCI Bank, Inc., 545 Phil. 138, 166 (2007).

[63]
Concept Builders, Inc. v. National Labor Relations Commission, supra note 50 at
966.

[64]
Id.

[65]
Rollo (G.R. No. 167530), p. 65.

[66]
Francisco v. Mejia, 415 Phil. 153, 170 (2001).

[67]
Velarde v. Lopez, Inc., 464 Phil. 525, 538 (2004).

[68]
Republic v. Hon. Mangotara, G.R. No. 170375, July 7, 2010, 624 SCRA 360, 431.

[69]
Sarona v. National Labor Relations Commission, supra note 37 at 414.

[70]
Id.

[71]
Exhibits “A” (letter proposal dated January 31, 1985 of Hercon, Inc., through Earl
Pitcock, Hercon’s President) and “B” (letter of acceptance dated February 11, 1985 by
the NMIC, through Rolando Zosa, the NMIC’s President. (Records, Vol. II, pp. 737-
742.)

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G.R. No. 167530, March 13, 2013

[72]
Exhibits “C,” “C-1” to “C-22” and their respective submarkings, “D” and “D-1”
and its submarkings. (Id. at 743-838.)

[73]
Id.

[74]
Id. at 903-904.

[75]
Id. In particular, those listed as members of the board of directors of NMIC were
Jose Tengco, Jr. (DBP), Rolando M. Zosa (DBP), Ruben Ancheta (DBP/PNB),
Geraldo Agulto (PNB), and Faustino Agbada (DBP).

[76]
This fact was admitted by NMIC and DBP in their respective answers and in
paragraph 6 of DBP’s Reply to Request for Admission of HRCC. (Records, Vol. I, pp.
56, 73 and 308.)

[77]
G.R. No. 98185, December 11, 1992, 216 SCRA 470, 474.

[78]
Rollo (G.R. No. 167530), p. 65.

[79]
Paragraph 2 of the original Complaint and of the first and second Amended
Complaints identify the address of NMIC as “2283 Pasong Tamo Ext., Makati, Metro
Manila;” that of DBP as “Makati Avenue corner Sen. Gil J. Puyat Avenue, Makati,
Metro Manila;” and that of PNB as “Escolta, Manila.” (Records, Vol. I, pp. 1, 188 and
332, respectively.)

[80]
Yamamoto v. Nishino Leather Industries, Inc., G.R. No. 150283, April 16, 2008,
551 SCRA 447, 454-455.

[81]
Rollo (G.R. No. 167530), p. 65.

[82]
400 Phil. 1260, 1268 (2000).

[83]
Paragraph 14 of Amended Complaint. (Records, Vol. I, p. 336.)

[84]
Rollo (G.R. No. 167561), pp. 47-48.

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