SEC CDO Case No. 05-12-006 In the matter of: CJH DEVELOPMENT CORPORATION and CJH SUITES CORPORATION

PICC Secretariat Building, PICC Complex, Pasay City Securities and Exchange Commission Republic of the Philippines Department of Finance

In the matter of: CJH DEVELOPMENT CORPORATION and CJH SUITES CORPORATION

For: Issuance of Permanent CDO SEC CD0 Case No. 05-12-006

DEPARTMENT, ENFORCEMENT AND PROSECUTION Movant.

X

RESOLUTION

and Desist Order filed on 9 July 2012 by the Enforcement and Prosecution Department (EPD)1. The Motion essentially stated that: For the consideration of the En Banc is a Motion for Issuance of Permanent Cease

(1) A Cease and Desist Order (Order) against Respondents was issued by the Commission En Banc on 7 June 2012;

(2) The CDO was served on Respondent CJH DEVELOPMENT CORPORATION (CJH Devt) on 8 June 2012;

(3 The CDO was served on Respondent CJH SUITES CORPORATION (CJH Suites) on 13 June 2012;

(4 Neither of the Respondents filed a Motion to Lift filed within the 5-day period in the 2006 SEC Rules of Procedure

superfluous, since the CDO was not issued by an Operating Department but rather by the En Banc itself, viz: On 13 July 2012, Respondents filed a Manifestation stating that the EPD's Motion is

the validity of the CDO, there is no need for the Movant to file the instant Motion for Issuance of Permanent Cease and Desist 0rder dated 09 July 2012 inasmuch as the CD0 dated 07 June 2012 was issued by no less than the SEC EN Banc itself.2 (Emphasis supplied) [1]t must be emphasized that, assuming in gratia argumenti

[T]here is a need for the filing of a motion to make the CDO Director of the EPD, it being merely provisional in nature.3 (Emphasis supplied) permanent only if the same was initially issued by the

With regard to the CDO issued by the SEC En Banc itself. however, nothing in the rules mentions the necessity for the filing of a corresponding motion to make the same

1 Now known as the Enforcement and Investor Protection Department (EIPD). 2 Par. 9 of Respondents' 13 July 2012 Manifestation. 3 Par. 13 of Respondents' 13 July 2012 Manifestation.

In re: CJH DEVT CORP &CJH SUITES CORP v.EPD SEC CDO Case No. 05-12-006

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issued by the SEC En Banc, assuming in gratia argumenti the validity thereof, the same will already become final.4 permanent. Apparently, based on the wordings of the rules, if the respondent fails to move for the lifting of the CDO (Emphasis supplied)

Motion until after judicial review of the validity of the CDQ by the Court of Appeals and later the Supreme Court. On 23 August 2012, the En Banc issued an Order deferring the resolution of the

Subsequently denied Respondents' Motion for Reconsideration. On 28 November 2016, the Supreme Court5 declared the CD0 valid. It also

Issuance of Permanent CDO.6 On 13 July 2017, Respondents filed a Comment/Opposition to the Motion for

Hence the instant Motion.

lapse of the 5-day reglamentary period. The Motion is superfluous because the CDO has become permanent upon the mere

Section 64.3 of the Securities Regulation Code provides that:

may, within five (5) days from receipt of the order, file a Any person against whom a cease and desist order was issued formal request for a lifting thereof.

Section 10-3 of the 2006 SEC Rules of Procedure similarly provides that:

extendible period of five (5) business days from the receipt of the order, file a formal request or motion for the lifting thereof A party against whom a CDO was issued may, within a non. With the OGC.

who may issue a CDO and on what basis: Furthermore, the 2006 Rules, under which the instant Motion was filed, specifies

RULE X. CEASE AND DESIST ORDER

SEC. 10-4. Who May Issue a Provisional Remedy. - A provisional remedy may be issued by the Director of the CED on the basis of his initial evaluation of the issue, or upon recommendation of the Hearing Panel or Officer, as the case may be.

order for the grant of a CDO as it may deem necessary and (Emphasis supplied) warranted in accordance with its powers under existing laws. The Commission En Banc, however, may issue an

6 Respondents claim they received Notice from the Supreme Court denying their Motion for 4 Par. 14 of Respondents' 13 July 2012 Manifestation. 5 Docketed as Herbosa v. CJH Devt and CJH Suites, SC GR No. 210316 Reconsideration on 21 July 2017.

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In re: CJH DEVT CORP & CJH SUITES CORP v.EPD SEC CDO Case No. 05-12-006 Page 3 of 3

motion to lift CDO within the prescribed period, the Director of the CED may file with the Commission a motion to make the CDO permanent." There is no provision where the En Banc has to apply to itself to make permanent its own CDO. Section 10-5 of the 2006 Rules provides that, "[i]f the respondent fails to file a

whose findings need to be confirmed. On the other hand, a CDO issued by the En Banc need not be confirmed by the En Banc. It is already permanent, subject only to a timely Motion to Lift, which was lacking in this case. requirement of a motion-to-make-permanent only applies to a CDO issued by a Director As correctly pointed out by Respondents in their 13 July 2012 Manifestation, the

Respondents in their more recent 2017 Comment/0pposition. This issue has already been ruled upon by the Supreme Court and res judicata applies, to wit: It must be mentioned that the validity of the CDO is again being assailed by

Even at the risk of occasional errors, judgment of the courts as well as administrative decisions should become final at some definite time fixed by law, and parties should not be permitted to litigate the same issues over again.7

the EPD's Motion and the Respondents' Manifestation, which were both cited in the 23 August arguments against validity of the CD0 in the 2017 Comment/0pposition is barred by res judicata. Manifestation. There is nothing that prevents the En Banc from deciding this case solely upon 2012 Order, before the issue of validity was taken to the courts. As mentioned, the Obviously, Respondents' 2017 Comment/0pposition is irreconcilable with their 2012

because the En Banc does not need to confirm its own CDO issuance. In other words, the En Banc's CDO is already permanent, because a timely Motion to Lift was never filed. The instant Motion for the Issuance of Permanent CDO need not be given due course

5-day reglamentary period without the filing of a Motion to Lift. Desist Order issued by the En Banc on 7 June 2012 became permanent upon the lapse of the WHEREFORE, premises considered, the En Banc hereby clarifies that the Cease and

SO ORDERED.

Pasay City, Philippines; 3 November 2017.

TERESITA J. HERBOSA C Chairperson 0

aaiyo ANTONIETA F. IBE Commissioner Noane Lh EPHYRO LUIS B. AMATONG Commissioner

Kcbmmissio'ner LASJAMESG ITERBO EMILI Commissibner RUINO

7 Crucillo v. 0mbudsman, 525 SCRA 636 (2007).

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