Lucio Tan seeks P300M from government in damage suitBy Leila B. Salaverria
Philippine Daily Inquirer
Claiming that state prosecutors have failed to prove that his assets are ill-gotten after more than two decades of trying, ethnic Chinese businessman Lucio Tan has filed a P300 million counter-claim for damages from government.
In a memorandum filed through lawyer Estelito Mendoza, Tan asked the Sandiganbayan 5th Division to dismiss the forfeiture case against him and grant his claim for damages for the seizure of his assets.
The forfeiture case against Tan, which was filed in 1987, is in the final stages with the prosecution and the defense having finished with the presentation of evidence.
The government wants Tan’s assets reconveyed to the state, claiming they were part of the ill-gotten wealth of the late dictator Ferdinand Marcos.
The Tan companies involved in the case are Fortune Tobacco Corp., Asia Brewery, Allied Banking Corp., Foremost Farms, Himmel Industries, Grandspan Development Corp., Silangan Holdings, Dominium Realty and Construction Corp., and Shareholdings Inc.
Among the things that Tan cited in his favor was the government prosecutors’ failure to present his brother, Mariano Tanenglian, as a prosecution witness.
The Presidential Commission on Good Government (PCGG), which filed the case against Tan, decided to drop Tanenglian as a witness after failing to come to agreement over Tanenglian’s request for immunity. Tanenglian is one of Tan’s co-defendants in the forfeiture case.
According to Tan, with the failure to present Tanenglian as a witness, the state’s evidence was “inadequate to sustain a judgment” against him.
Tan said that from the date when the affected companies’ shares were sequestered in 1986 until the Supreme Court’s nullification of the sequestration in 2007—a period that spanned 21 years—the owners were deprived of the right to enjoy ownership of these assets.
He said he and the other defendants were entitled to damages because the affected corporations were unable to exercise their corporate powers, “to devastating effect.”
Tan asked for himself P100 million as temperate damages and P200 million as exemplary damages.
Temperate damages, also called reasonable damages, are awarded when the court finds that some pecuniary loss has been suffered but whose amount cannot, from the nature of the case, be proved with certainty.
Exemplary damages, often called punitive damages, are requested and awarded in a lawsuit when the other party’s willful acts were malicious, violent, oppressive, fraudulent, wanton, or grossly reckless. Although often requested, exemplary damages are seldom awarded.
Tan said he should be awarded exemplary damages as a deterrent against the state’s repeating the “wanton and gross disregard” of his constitutional rights.
The other individual and corporate defendants should each be awarded the same amount as well, he said.
Tan said prosecutors failed to produce adequate proof that any of the assets that the government was seeking to recover, as well as the shares of stock in his name, were ill-gotten. He said it was not even shown that the state owned the shares of stock it sought to recover.
He said some of the transactions that the prosecution questioned did not involve ill-gotten wealth or any property that originated from the government.
He noted that prosecutors presented evidence purporting to show that the shares in Allied Bank belonged to stockholders of General Bank and Trust Co. (GenBank) and that 60 percent of shares in several of the Tan corporations were owned by the Marcos estate.
The prosecutors also presented the articles of incorporation papers of several firms showing that the incorporating stockholders were Tan and the other defendants, but none of the shares of stock at the time of the incorporation had been subscribed by the republic, Tan said.
Tan said the government subverted its claims to the alleged ill-gotten wealth by not objecting to the cross-claim of the dictator’s widow, Imelda Marcos, and the Yujuicos, who are GenBank stockholders. Marcos and the Yujuicos had contended that some of the shares of stock that the government sought to recover belonged to them.