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By Jomar Canlas, Reporter
The Court of Appeals paved the way for government to pursue its
billion-peso claim against the company that sold poll-automation
equipment to the Commission on Elections (Comelec).
In a 10-page decision penned by Associate
Justice Japar Dimaampao, the appellate court’s 16th Division
reversed the findings of Judge Winlove Dumayas of Branch 59 of the
Makati Regional Trial Court for grave abuse of discretion amounting
to lack or excess of jurisdiction, when he denied the government’s
petition for a writ of attachment to claim the amount paid to Mega
Pacific E-Solutions.
In the appellate court ruling, government now
has a chance to recover the P1.05 billion it paid, through the Comelec,
for the purchase of 1,991 automated counting machines.
Dimaampao said the court found merit in the
petition of the Office of the Solicitor General in view of the fraud
committed by Mega Pacific and of the fact that Comelec allowed an
unqualified corporation—the Mega Pacific Consortium—to
participate in the poll-automation project.
The respondents in the case are Mega Pacific
incorporators Willy Yu, Bonnie Yu, Enrique Tansipek, Rosita Tansipek,
Pedro Tan, Johnson Fong, Bernard Fong and Lauriano Barrios.
The Court of Appeals also chided the Makati
court for denying the plea of the government for a writ of
attachment and ignoring the documents, which would be used against
the Comelec and Mega Pacific. This would include the fact that
company was incorporated only on February 27, 2003, or 11 days prior
to the bidding.
”In an attempt to disguise its ineligibility,
private respondent MPEI participated in the bidding as lead company
of a putative consortium known as Mega Pacific Consortium, and
submitted the incorporation papers and financial statements of the
members of the consortium … and 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 Comelec,” the ruling stated.
To the Court of the Appeals, there were glaring
indications “of fraud that entitled petitioner [Philippine
government] to a writ of preliminary attachment.”
With this, the appellate court ruled that the
grave abuse of discretion committed by the Comelec should not make
the Filipino people suffer further, the court said.
The Court of Appeals stressed that the Supreme Court itself ruled
that fraud was committed “as it decisively declared that
Comelec’s acts of awarding the automation contract to Mega Pacific
Consortium, an entity that did not participate in the bidding; and
signing the actual automation contract with private respondents MPES,
a company that joined the bidding but had not met the eligibility
requirements were downright illegal, imprudent and hasty.”
Dimaampao also noted that the government should
be given a chance to “pierce the veil” of Mega Pacific to
prevent it from repeating what they had done.
Unlike other petitioners, no bond was required
from the government for the damages that the company may sustain
because of the attachment, since the “Republic of the Philippines
need not give this security as it is presumed to be always solvent
and able to meet its obligations,” the appellate court said.
Other Magistrates who concurred in the ruling
are Justices Mario Guarina and Sixto Marella Jr.
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