THE Court of Appeals (CA) has upheld the decision of the Securities and Exchange Commission (SEC) that imposed a fine of P1 million and a five-year suspension on businessman Roberto V. Ongpin and several directors of Alphaland Corp. for issuing undervalued company shares in exchange for property and failing to disclose property valuations.

In a 19-page decision on Aug. 10 and made public on Aug. 11, the appellate court agreed with the SEC’s findings as it said the board members violated the Securities and Regulations Code (SRC) for making false statements and misrepresentations on the issuances of company shares.

Alphaland President Dennis O. Valdes, one of the petitioners in the case, did not immediately reply when sought for comment on Viber.

Mr. Ongpin, the chairman and chief executive officer (CEO) of Alphaland, along with other executives, argued that the SEC Enforcement and Investor Protection Department (EIPD) wrongly assumed jurisdiction in an intra-corporate dispute which stemmed from a complaint filed by British investment manager Ashmore Group.

The executives claimed Mr. Ongpin’s group and the Ashmore Group had already settled the complaint and agreed to withdraw all cases against each other in the regular courts.

The London-based investment manager filed a complaint in 2014 that alleged Alphaland Holdings (Singapore) Pte. Ltd. offered to lend P2.25 billion to Alphaland on the condition that Mr. Ongpin would resign as the firm’s chairman and CEO due to the negative publicity from his involvement in the Development Bank of the Philippines (DBP) behest loans controversy.

The court disagreed as it affirmed the SEC’s jurisdiction over disputes that stem from violations of the SRC.

It added that EIPD’s investigation was not in connection with the Ashmore Group’s complaint but was rather made in line with the SEC’s mandate.

“To ensure compliance with the law and the rules, the Securities and Exchange Commission is also given the power to impose fines and penalties,” according to the ruling penned by Mary Charlene V. Hernandez-Azura.

The SRC mandates the SEC to conduct investigations and to determine if a corporate entity violates any of its provisions.

Under Section 26 of the SRC, it is unlawful for any person, directly or indirectly, in connection with the purchase or sale of any securities to “engage in any act, transaction, practice or course of business which operates or would operate as a fraud or deceit upon any person.”

The SEC is also mandated to conduct investigations into corporate violations motu proprio or without a formal request from another party.

Alphaland is a firm engaged in real property development.

The executives argued that the EIPD violated their right to due process since the show-cause order presented by the EIPD was on the Ashmore Group’s complaint and they were not served with the court summons when it was filed.

The tribunal pointed out that the petitioners’ right to due process was not violated as they were afforded the right to explain their side.

“We are convinced that the SEC En Banc did not commit reversible error in affirming the findings of the EIPD that bad faith attended the approval, ratification, and implementation of the above-discussed corporate acts subject of Board Resolution No. 2014-01-001 and related resolution/s as the same clearly prejudiced not only ALPHA (Alphaland) and its stockholders but the investing public as well,” the tribunal ruled.

It reiterated that the EIPD’s probe of the board members was not the result of the Ashmore Group’s complaint since the EIPD had already started the investigation weeks before the Ashmore Group filed a complaint.

“Indeed, petitioners were afforded all the opportunities to explain their side of the story. The evidence is too obvious to be ignored,” said the court.

The SEC earlier found executives to have violated the SRC and “to have repeatedly failed to make timely, adequate and accurate disclosures of material information, and willfully made false statements to the PSE and the investing public.”

In 2014, the board members also resolved to approve the issuance of shares of the company in a property-for-share swap in exchange for parcels of land in Itogon, Benguet valued at P1,393,917,500.00 at the issue price of P2.50 per share. The property was beneficially owned by Mr. Ongpin.

The tribunal noted that the initial valuation of the property was not submitted to the SEC for approval before the proposed exchange of shares for the said property.

Prior to the property-for-share swap, the Alphaland chairman only owned 22.1% of the company. Mr. Ongpin’s beneficial ownership rose to 39.19% after exchanging shares for land.

The executives also had a stock rights offering via private placements to Red Epoch Group, Inc., a firm not included in Alphaland’s list of shareholders, instead of minority stockholders that was initially proposed by the board members. — John Victor D. Ordoñez