Ongpin-led Atok loses bid for Mindoro mine

MANILA, Philippines – The Court of Appeals favored Norwegian firm Intex Resources ASA in the case filed by Atok-Big Wedge Co., a mining firm of Filipino billionaire Roberto Ongpin.

At stake is a nickel mining project in the province of Mindoro that Atok wanted to purchase from Intex.

Citing technicalities, the appellate court granted Intex’s petition seeking the dismissal of Atok’s demand for the Norwegian firm to comply with their sale agreement. Atok’s complaint was filed in 2010 against Intex president Erlend Grimstad, Intex Resources ASA and Intex Resources AS.

In a 7-page decision penned by Associate Justice Mario Lopez, the Court of Appeals Special 9th Division declared that the Regional Trial Court of Makati City Branch 142 has no jurisdiction to recognize Atok’s complaint because the summons were not properly served on the defendants.

Technicality

The appellate court said the Makati court committed “grave abuse of discretion” when it denied Intex’s and Grimstand’s motion to dismiss after the summons were not properly served to and received by authorized representatives of the defendants.

It noted the Rules of Court that summons on a foreign corporation can be served 3 ways: on its resident agent designated in accordance with law for that purpose; on the government official designated by law to receive summons if the corporation does not have a resident agent, and; on any of the corporation’s officers or agents within the Philippines.

The appellate court said the Intex had no resident agent in the country; the summons were not served on the Securities and Exchange Commission (SEC), the designated government agency; and the alias summons were tendered to a certain Maricel Lodevico, the receptionist of Intex Resources Philippines, Inc., which is a distinct and separate entity from Intex ASA and Intex AS.

Lodevico, according to the CA, was not authorized to receive court processes in behalf of the defendants.

“We reiterate that the requirements of the rule on service of summons must be strictly followed; otherwise, the trial court will not acquire jurisdiction to validly try and decide the case against the defendant,” the CA declared.

“With this finding warranting the dismissal of the complaint for lack of jurisdiction over the persons of the defendants, there is no more need to discuss the other issues raised in the petitions,” the CA said.

The sale

Atok had claimed before the Makati court that Intex reneged on the sale of 100% of a nickel mine in a 9,720-hectare property in the island of Mindoro.

Atok’s authorized representatives, including Ongpin, met on October 7, 2010 with Intex ASA, represented by Grimstad, after the Norwegian firm offered to sell its entire equity in a wholly-owned subsidiary Intex AS, which, in turn, controls the nickel mining project.

The proposed consideration was for $10 million in cash and 300 million in new Atok shares, which was then valued at around $450 million.

After Atok said it asked Grimstad for their respective lawyers to sit down and document the agreement, the foreign firm allegedly refused to send the final drafts memorandum with Grimstad explaining that Intex ASA had instructed him not to execute any contract concerning the project.

This prompted Atok to file a suit before the Makati RTC seeking to compel the respondents to push through with the deal.

Atok was acquired by the Ongpin group in 2009 through their holding firm, Boerstar Corp. – Rappler.com