REMREV1 (Page 6)

VI. Rules 23-32

1. Dasmarinas Garments, Inc. v. Reyes (1993)

epublic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. 108229 August 24, 1993

DASMARIÑAS GARMENTS, INC., petitioner, vs.HON. RUBEN T. REYES, Judge, Regional Trial Court, Manila, Branch 50, and AMERICAN PRESIDENT LINES, LTD., respondents.

Sobreviñas, Diaz, Haudini & Bodegon Law Offices for petitioner.

Tan, Manzano & Velez Law Offices for private respondent.

 

R E S O L U T I O N

NARVASA, C.J.:

Sometime in September, 1987, in the Regional Trial Court of Manila, the American President Lines, Ltd. sued Dasmariñas Garments, Inc. to recover the sum of US $53,228.45 as well as an amount equivalent to twenty-five percent (25%) thereof as attorney's fees and litigation expenses.

In its answer dated December 1, 1987, Dasmariñas Garments, Inc. (hereafter, simply Dasmariñas) specifically denied any liability to the plaintiff (hereafter simply APL), and set up compulsory counterclaims against it.

The case was in due course scheduled for trial on April 27, 1988. On that date APL presented its first witness whose testimony was completed on November 12, 1988. The case was reset to May 3, 1989 for reception of the testimony of two (2) more witnesses in APL's behalf.

At the hearing of May 3, 1989, instead of presenting its witnesses, APL filed a motion praying that it intended to take the depositions of H. Lee and Yeong Fang Yeh in Taipei, Taiwan and prayed that for this purpose, a "commission or letters rogatory be issued addressed to the consul, vice-consul or consular agent of the Republic of the Philippines in Taipei . . . " Five (5) days later APL filed an amended motion stating that since the Philippine Government has no consulate office in Taiwan in view of its "one China policy," there being in lieu thereof an office set up by the President "presently occupied by Director Joaquin Roces which is the Asia Exchange Center, Inc.," it was necessary — and it therefore prayed — "that commission or letters rogatory be issued addressed to Director Joaquin Roces, Executive Director, Asian Executive Exchange Center, Inc., Room 901, 112 Chunghsiao, E. Road, Section 1, Taipe, Republic of China, to hear and take the oral deposition of the aforenamed persons . . . ."

The motion was opposed by Dasmariñas. It contended that (a) the motion was "fatally defective in that it does not seek . . . that a foreign court examine a person within its jurisdiction;" (b) issuance of letters rogatory was unnecessary because the witnesses "can be examined before the Philippine Court;" and (c) the Rules of Court "expressly require that the testimony of a witness must be taken orally in open court and not by deposition."

Extensive argument on the matter thereafter followed, through various pleadings filed by the parties, in the course of which APL submitted to the Trial Court (a) the letter received by its counsel from Director Joaquin R. Roces of the Asian Exchange Center, Inc., dated November 20, 1989, advising that "this Office can only take deposition upon previous authority from the Department of Foreign Affairs," this being "in consonance with the Supreme Court Administrative Order requiring courts or judicial bodies to course their requests through the Department of Foreign Affairs;" and (b) a letter sent by "fax" to the same counsel by a law firm in Taipei, Lin & Associates Maritime Law Office, transmitting information inter alia of the mode by which, under the "ROC Civil Procedure Code," "a copy or an abridged copy" of documents on file with a Taiwan Court may be obtained.

By Order dated March 15, 1991, the Trial Court resolved the incident in favor of APL, disposing as follows:

ACCORDINGLY, the motion to take testimonies of plaintiff's Taiwanese witnesses, Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) is hereby GRANTED. The Asian Exchange Center, Inc. thru Director Joaquin R. Roces is hereby COMMISSIONED to take down the deposition. Compliance with the Rules on the taking of testimony by deposition upon written interrogatories under Sections 25-29 of Rule 24, Rules of Court is enjoined.

Let this Order be coursed through the Department of Foreign Affairs, Manila, pursuant to Supreme Court Administrative Circular No. 4 dated April 6, 1987.

The Court opined that "the Asian Exchange Center, Inc. being the authorized Philippine representative in Taiwan, may take the testimonies of plaintiff's witnesses residing there by deposition, but only upon written interrogatoriesso as to give defendant the opportunity to cross-examine the witnesses by serving cross-examination."

Dasmariñas sought reconsideration by motion filed June 25, 1991 on the following grounds: (1) authority of the Asian Exchange Center, Inc. (AECI) to take depositions has not been established, it not being one of those so authorized by the Rules of Court to take depositions in a foreign state; (2) AECI's articles of incorporation show that it is not vested with any such authority; (3) to permit deposition-taking by commission without the authority of the foreign state in which deposition is taken constitutes infringement of judicial sovereignty; and (4) depositions by written interrogatories have inherent limitations and are not suitable to matters dependent on the credibility of witnesses; oral testimony in open court remains the "most satisfactory method of investigation of facts'" and "'affords the greatest protection to the rights and liberties of citizens."

By Order dated July 5, 1991, the motion for reconsideration was denied because "filed out of time" and being a mere rehash of arguments already passed upon. In the same Order, APL was directed "to take the necessary steps to implement the order authorizing the . . . (deposition-taking) of its witnesses not later than the end of this month, otherwise the Court will consider inaction or

lack of interest as waiver to adduce additional evidence by deposition."

Dasmariñas instituted a special civil action of certiorari  in the Court of Appeals to nullify the orders of the Trial Court just described. Said Appellate Court restrained enforcement of the orders of March 15, 1991 and July 5, 1991 "in order to maintain the status quo and to prevent the infliction of irreparable damage and injury upon the petitioner."

After due proceedings, the Court of Appeals (Third Division) rendered judgment on September 23, 1992 denying Dasmariñas petition for certiorari and upholding the challenged orders of the Trial Court. Once again, Dasmariñas sought reconsideration of an adverse disposition, and once again, was rebuffed. Its motion for reconsideration was denied in a Resolution of the Court of Appeals dated December 11, 1992.

Once again Dasmariñas has availed of the remedy of appeal. It has come to this Court and prays for the reversal of the Appellate Court's Decision of September 23, 1992 and Resolution dated December 11, 1992. Once again, it will fail.

Dasmariñas ascribes to the Court of Appeals the following errors, to wit:

1) "in holding that a party could, during the trial of the case, present its evidence by taking the deposition of its witnesses in a foreign jurisdiction before a private entity not authorized by law to take depositions in lieu of their oral examination in open Court considering that:

a) the taking of deposition is a mode of pretrial discovery to be availed of before the action comes to trial;

b) no urgent or compelling reason has been shown to justify the departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge;"

2) "in disregarding the inherently unfair situation in allowing private respondent, a foreign entity suing in the Philippines, to present its evidence by mere deposition of its witnesses away from the 'penetrating scrutiny' of the trial Judge while petitioner is obligated to bring and present its witnesses in open court subject to the prying eyes and probing questions of the Judge;" and

3) "in sanctioning the deposition taking of . . . (APL's) witnesses in Taipei, Taiwan, a foreign jurisdiction not recognized by the Philippines in view of its 'one-China policy,' before the AECI, a private entity not authorized by law to take depositions."

Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person which are relevant in some suit or proceeding in court. Depositions, and the other modes of discovery (interrogatories to parties; requests for admission by adverse party; production or inspection of documents or things; physical and mental examination of persons) are meant to enable a party to learn all the material and relevant facts, not only known to him and his witnesses but also those known to the adverse party and the latter's own witnesses. In fine, the object of discovery is to make it possible for all the parties to a case to learn all the material and relevant facts, from whoever may have knowledge thereof, to the end that their pleadings or motions may not suffer from inadequacy of factual foundation, and all the relevant facts may be clearly and completely laid before the Court, without omission or suppression.

Depositions are principally made available by law to the parties as a means of informing themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as a rule be presented for oral examination in open court at the trial or hearing. This is a requirement of the rules of evidence. Section 1, Rule 132 of the Rules of Court provides:

Sec. 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of

answer, the answers of the witness shall be given orally.

Indeed, any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay; the party against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It matters not that that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing.

However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Section 4, Rule 24 of the Rules of Court.

Sec. 4. Use of depositions. — At the trial or upon the hearing of a motion of an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness if out of the province and at a greater distance than fifty (50) kilometers from the place of trial or hearing, or is out of the Philippines,

unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used;

(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

The principle conceding admissibility to a deposition when the deponent is dead, out of the Philippines, or otherwise unable to come to court to testify, is consistent with another rule of evidence, found in Section 47, Rule 132 of the Rules of Court.

Sec. 47. Testimony or deposition at a former proceeding. — The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.

It is apparent then that the deposition of any person may be taken wherever he may be, in the Philippines or abroad. If the party or witness is in the Philippines, his deposition "shall be taken before any judge, municipal or notary public" (Sec. 10, Rule 24, Rules of Court). If in a foreign state or country, the deposition "shall be taken: (a) on notice before a secretary or embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines, or (b) before such person or officer as may be appointed by commission or under letters rogatory" (Sec. 11, Rule 24).

Leave of court is not necessary where the deposition is to be taken before "a secretary or embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines,"

and the defendant's answer has already been served (Sec. 1 Rule 24). After answer, whether the deposition-taking is to be accomplished within the Philippines or outside, the law does not authorize or contemplate any intervention by the court in the process, all that is required being that "reasonable notice" be given "in writing to every other party to the action . . . (stating) the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. . . . " (Sec. 15, Rule 24). The court intervenes in the process only if a party moves (1) to "enlarge or shorten the time" stated in the notice (id.), or (2) "upon notice and for good cause shown," to prevent the deposition-taking, or impose conditions therefor, e.g., that "certain matters shall not be inquired into" or that the taking be "held with no one present except the parties to the action and their officers or counsel," etc. (Sec. 16, Rule 24), or(3) to terminate the process on motion and upon a showing that "it is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party" (Sec 18, Rule 24).

Where the deposition is to be taken in a foreign country where the Philippines has no "secretary or embassy or legation, consul general, consul, vice-consul, or consular agent," then obviously it may be taken only "before such person or officer as may be appointed by commission or under letters rogatory. Section 12, Rule 24 provides as follows:

Sec. 12. Commission or letters rogatory. — A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such directions as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed "To the Appropriate Judicial Authority in (here name the country)."

A commission may be defined as "(a)n instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p. 415, citing Cyclopedic Law Dictionary, p. 200). Letters rogatory, on the other hand, may be defined as "(a)n instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be

examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed" (Feria, J., op. cit., citing Cyclopedic Law Dictionary, p. 653). Section 12, Rule 24 just quoted states that a commission is addressed to "officers . . . designated . . . either by name or descriptive title," while letters rogatory are addressed to some "appropriate judicial authority in the foreign state." Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied for and issued only after a commission has been "returned unexecuted" as is apparent from Form 21 of the "Judicial Standard Forms" appended to the Rules of Court, which requires the inclusion in a "petition for letters rogatory" of the following paragraph, viz.:

xxx xxx xxx

3. A commission issued by this Court on the ______ day of ______, 19__, to take the testimony of (here name the witness or witnesses) in (here name the foreign country in which the testimony is to be taken), before _________________ (name of officer), was returned unexecuted by __________________ on the ground that ____________, all of which more fully appears from the certificate of said __________ to said commission and made a part hereof by attaching it hereto (or state other facts to show commission is inadequate or cannot be executed) (emphasis supplied).

In the case at bar, the Regional Trial Court has issued a commission to the "Asian Exchange Center, Inc. thru Director Joaquin R. Roces" "to take the testimonies of . . . Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) . . . ." It appears that said Center may, "upon request and authority of the Ministry (now Department) of Foreign Affairs, Republic of the Philippines" issue a "Certificate of Authentications" attesting to the identity and authority of Notaries Public and other public officers of the Republic of China, Taiwan (eg., the Section Chief, Department of Consular Affairs of the latter's Ministry of Foreign Affairs) (Annex B of Annex N of the petition for review on certiorari) — a prima facie showing not rebutted by petitioner.

It further appears that the commission is to be coursed through the Department of Foreign Affairs conformably with Circular No. 4 issued

by Chief Justice Claudio Teehankee on April 6, 1987, pursuant to the suggestion of the Department of Foreign Affairs — directing "ALL JUDGES OF THE REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS" "to course all requests for the taking of deposition of witnesses residing abroad through the Department of Foreign Affairs" to enable it and "the Philippine Foreign Service establishments to act on the matter in a judicious and expeditious manner;" this, "in the interest of justice," and to avoid delay in the deposition-taking.

Petitioner would however prevent the carrying out of the commission on various grounds.

The first is that the deposition-taking will take place in "a foreign jurisdiction not recognized by the Philippines in view of its 'one-China policy.'" This is inconsequential. What matters is that the deposition is taken before a Philippine official acting by authority of the Philippine Department of Foreign Affairs and in virtue of a commission duly issued by the Philippine Court in which the action is pending, and in accordance, moreover, with the provisions of the Philippine Rules of Court pursuant to which opportunity for cross-examination of the deponent will be fully accorded to the adverse party.

Dasmariñas also contends that the "taking of deposition is a mode of pretrial discovery to be availed of before the action comes to trial." Not so. Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the law authorizes the taking of depositions of witnesses before or after an appeal is taken from the judgment of a Regional Trial Court "to perpetuate their testimony for use in the event of further proceedings in the said court" (Rule 134, Rules of Court), and even during the process of execution of a final and executory judgment (East Asiatic Co. v. C.I.R., 40 SCRA 521, 544).

Dasmariñas further claims that the taking of deposition under the circumstances is a "departure from the accepted and usual judicial proceedings of examining witnesses in open court where the demeanor could be observed by the trial judge;" that it is "inherently unfair" to allow APL, "a foreign entity suing in the Philippines, to present its evidence by mere deposition of its witnesses away from

the 'penetrating scrutiny' of the trial Judge while petitioner is obligated to bring and present its witnesses in open court subject to the prying eyes and probing questions of the Judge."

Of course the deposition-taking in the case at bar is a "departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge;" but the procedure is not on that account rendered illegal nor is the deposition thereby taken, inadmissible. It precisely falls within one of the exceptions where the law permits such a situation, i.e., the use of deposition in lieu of the actual appearance and testimony of the deponent in open court and without being "subject to the prying eyes and probing questions of the Judge." This is allowed provided the deposition is taken in accordance with the applicable provisions of the Rules of Court and the existence of any of the exceptions for its admissibility — e.g., "that the witness if out of the province and at a greater distance than fifty (50) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or . . . that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment, etc." (Sec. 4 Rule 24, supra, emphasis supplied) — is first satisfactorily established (See Lopez v. Maceren, 95 Phil. 754).

The Regional Trial Court saw fit to permit the taking of the depositions of the witnesses in question only by written interrogatories, removing the proponent's option to take them by oral examination, i.e., by going to Taipei and actually questioning the witnesses verbally with the questions and answers and observations of the parties being recorded stenographically. The imposition of such a limitation, and the determination of the cause thereof, are to be sure within the Court's discretion. The ostensible reason given by the Trial Court for the condition — that the deposition be taken "only upon written interrogatories" — is "so as to give defendant (Dasmariñas) the opportunity to cross-examine the witnesses by serving cross-interrogatories." The statement implies that opportunity to cross-examine will not be accorded the defendant if the depositions were to be taken upon oral examination, which, of course, is not true. For even if the depositions were to be taken on oral examination in Taipei, the adverse party is still accorded full right to cross-examine the deponents by the law, either by proceeding to Taipei and there conducting the cross-examination orally, or opting to conduct said cross-examination merely by serving cross-interrogatories.

One other word. In its Order of July 5, 1991 — denying Dasmariñas motion for reconsideration of the earlier order dated March 15, 1991 (allowing the taking of deposition by commission) — one of the reasons adduced by the Regional Trial Court for the denial was that the motion had been "filed out of time." Evidently, the Trial Court reached this conclusion because, as the record discloses, the motion for reconsideration was filed by Dasmariñas on June 25, 1991, twenty-five (25) days after notice (on May 20, 1991) of the Order of March 15, 1991 sought to be reconsidered. Denial of the motion on such a ground is incorrect. In the first place, it appears that there was a motion for extension of time to file a motion for reconsideration, ending on June 25, 1991 which was however not acted on or granted by the Court. More importantly, the order sought to be reconsidered is an interlocutory order, in respect of which there is no provision of law fixing the time within which reconsideration thereof should be sought.

PREMISES CONSIDERED, the Court Resolved to DISMISS the petition for review on certiorari. Costs against petitioner.

SO ORDERED.

Padilla, Regalado, Nocon and Puno, JJ., concur.

2. [N]Go v. People, 677 SCRA 213

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 185527               July 18, 2012

HARRY L. GO, TONNY NGO, JERRY NGO AND JANE GO, Petitioners, vs.THE PEOPLE OF THE PHILIPPINES and HIGHDONE COMPANY, LTD., ET AL., Respondents.

D E C I S I O N

PERLAS-BERNABE, J.:

The procedure for taking depositions in criminal cases recognizes the prosecution's right to preserve testimonial evidence and prove its case despite the unavailability of its witness. It cannot, however, give license to prosecutorial indifference or unseemly involvement in a prosecution witness' absence from trial. To rule otherwise would effectively deprive the accused of his fundamental right to be confronted with the witnesses against him.

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioners seek to nullify and set aside the February 19, 2008 Decision1 and November 28, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 99383, which reversed the September 12, 2006 Order3 issued by the Regional Trial Court (RTC) of Manila, Branch 27 in Civil Case No. 06-114844 and upheld the grant of the prosecution’s motion to take the testimony of a witness by oral depositions in Laos, Cambodia.

Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged before the Metropolitan Trial Court (MeTC) of Manila for Other Deceits under Article 318 of the Revised Penal Code (RPC) docketed as Criminal Case No. 396447. The Information4 dated September 24, 2003, later amended5 on September 14, 2004, reads:

"That sometime in August 1996, in the City of Manila, Philippines, the said accused, conspiring, confederating together and helping one another, did then and there willfully, unlawfully and feloniously defraud Highdone Company Ltd. Represented by Li Luen Ping, in the following manner, to wit: all said accused, by means of false manifestations and fraudulent representations which they made to said Li Luen Ping to the effect that they have chattels such as machinery, spare parts, equipment and raw materials installed and fixed in the premises of BGB Industrial Textile Mills Factory located in the Bataan Export Processing Zone (BEPZ) in Mariveles, Bataan, executed a Deed of Mortgage for a consideration of the amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or less in favor of ML Resources and Highdone Company Ltd. Representing that the said deed is a FIRST MORTGAGE when in truth and in fact the accused well knew that the same had been previously encumbered, mortgaged and foreclosed by CHINA BANK CORPORATION as early as September 1994 thereby causing damage and prejudice to said HIGHDONE COMPANY LTD., in the said amount of $464,266.90 or its peso equivalent at P20,892,010.50 more or less."

Upon arraignment, petitioners pleaded not guilty to the charge.

The prosecution's complaining witness, Li Luen Ping, a frail old businessman from Laos, Cambodia, traveled from his home country back to the Philippines in order to attend the hearing held on September 9, 2004. However, trial dates were subsequently postponed due to his unavailability.

On October 13, 2005, the private prosecutor filed with the MeTC a Motion to Take Oral Deposition6 of Li Luen Ping, alleging that he was being treated for lung infection at the Cambodia Charity Hospital in Laos, Cambodia and that, upon doctor's advice, he could not make the long travel to the Philippines by reason of ill health.

Notwithstanding petitioners' Opposition,7 the MeTC granted8 the motion after the prosecution complied with the directive to submit a Medical Certificate of Li Luen Ping. Petitioners sought its reconsideration which the MeTC denied,9 prompting petitioners to file a Petition for Certiorari10 before the RTC.

On September 12, 2006, the RTC granted the petition and declared the MeTC Orders null and void.11 The RTC held that Section 17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply suppletorily to the case since there is a specific provision in the Rules of Court with respect to the taking of depositions of prosecution witnesses in criminal cases, which is primarily intended to safeguard the constitutional rights of the accused to meet the witness against him face to face.

Upon denial by the RTC of their motion for reconsideration through an Order dated March 5, 2006,12 the prosecution elevated the case to the CA.

On February 19, 2008, the CA promulgated the assailed Decision which held that no grave abuse of discretion can be imputed upon the MeTC for allowing the deposition-taking of the complaining witness Li Luen Ping because no rule of procedure expressly disallows the taking of depositions in criminal cases and that, in any case, petitioners would still have every opportunity to cross-examine the complaining witness and make timely objections during the taking of the oral deposition either through counsel or through the consular officer who would be taking the deposition of the witness.

On November 28, 2008, the CA denied petitioners' motion for reconsideration. Hence, this petition alleging that –

I.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE METROPOLITAN TRIAL COURT INFRINGED THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO A PUBLIC TRIAL IN ALLOWING THE TAKING OF THE DEPOSITION OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA.

II.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE DEPOSITION TAKING OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA IS AN INFRINGEMENT OF THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO CONFRONT THE SAID WITNESS FACE TO FACE.

III.THE COURT OF APPEALS ERRED IN SUSTAINING THE JUDICIAL LEGISLATION COMMITTED BY THE METROPOLITAN TRIAL COURT IN APPLYING THE RULES ON DEPOSITION-TAKING IN CIVIL CASES TO CRIMINAL CASES.

IV.THE COURT OF APPEALS ERRED IN LIMITING THE TRADITIONAL DEFINITION OF GRAVE ABUSE OF DISCRETION, OVERLOOKING THE ESTABLISHED RULE THAT VIOLATION OF THE CONSTITUTION, THE LAW OR JURISPRUDENCE SIMILARLY COMES WITHIN THE PURVIEW OF GRAVE ABUSE OF DISCRETION.

We rule in favor of petitioners.

The Procedure for Testimonial Examination of an Unavailable Prosecution Witness is Covered Under Section 15, Rule 119.

The examination of witnesses must be done orally before a judge in open court.13 This is true especially in criminal cases where the Constitution secures to the accused his right to a public trial and to meet the witnessess against him face to face. The requirement is the "safest and most satisfactory method of investigating facts" as it enables the judge to test the witness' credibility through his manner and deportment while testifying.14 It is not without exceptions, however, as the Rules of Court recognizes the conditional examination of witnesses and the use of their depositions as testimonial evidence in lieu of direct court testimony.

Even in criminal proceedings, there is no doubt as to the availability of conditional examination of witnesses – both for the benefit of the

defense, as well as the prosecution. The Court's ruling in the case of Vda. de Manguerra v. Risos15 explicitly states that –

"x x x As exceptions, Rule 23 to 28 of the Rules of Court provide for the different modes of discovery that may be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of witnesses or as modes of discovery. In criminal proceedings, Sections 12, 13 and 15, Rule 119 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional examination of both the defense and prosecution witnesses." (Underscoring supplied)16

The procedure under Rule 23 to 28 of the Rules of Court allows the taking of depositions in civil cases, either upon oral examination or written interrogatories, before any judge, notary public or person authorized to administer oaths at any time or place within the Philippines; or before any

Philippine consular official, commissioned officer or person authorized to administer oaths in a foreign state or country, with no additional requirement except reasonable notice in writing to the other party.17

But for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would forseeably be unavailable for trial, the testimonial examination should be made before the court, or at least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure. The pertinent provision reads thus:

SEC. 15. Examination of witness for the prosecution. – When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused.

Since the conditional examination of a prosecution witness must take place at no other place than the court where the case is pending, the

RTC properly nullified the MeTC's orders granting the motion to take the deposition of Li Luen Ping before the Philippine consular official in Laos, Cambodia. We quote with approval the RTC's ratiocination in this wise:

The condition of the private complainant being sick and of advanced age falls within the provision of Section 15 Rule 119 of the Rules of Court. However, said rule substantially provides that he should be conditionally examined before the court where the case is pending. Thus, this Court concludes that the language of Section 15 Rule 119 must be interpreted to require the parties to present testimony at the hearing through live witnesses, whose demeanor and credibility can be evaluated by the judge presiding at the hearing, rather than by means of deposition. No where in the said rule permits the taking of deposition outside the Philippines whether the deponent is sick or not.18 (Underscoring supplied)

Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court where the case is pending would not only deprive a detained accused of his right to attend the proceedings but also deprive the trial judge of the opportunity to observe the prosecution witness' deportment and properly assess his credibility, which is especially intolerable when the witness' testimony is crucial to the prosecution's case against the accused. This is the import of the Court's ruling in Vda. de Manguerra19 where we further declared that –

While we recognize the prosecution's right to preserve the testimony of its witness in order to prove its case, we cannot disregard the rules which are designed mainly for the protection of the accused's constitutional rights. The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.20 (Underscoring supplied)

It is argued that since the Rules of Civil Procedure is made explicitly applicable in all cases, both civil and criminal as well as special proceedings, the deposition-taking before a Philippine consular official under Rule 23 should be deemed allowable also under the circumstances.

However, the suggested suppletory application of Rule 23 in the testimonial examination of an unavailable prosecution witness has been categorically ruled out by the Court in the same case of Vda. de Manguerra, as follows:

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However, it is likewise true that criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure.

Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise." (Underscoring supplied)

The Conditional Examination of a Prosecution Witness Cannot Defeat the Rights of the Accused to Public Trial and Confrontation of Witnesses

The CA took a simplistic view on the use of depositions in criminal cases and overlooked fundamental considerations no less than the Constitution secures to the accused, i.e., the right to a public trial and the right to confrontation of witnesses. Section 14(2), Article III of the

Constitution provides as follows:

Section 14. (1) x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied)

In dismissing petitioners' apprehensions concerning the deprivation of their constitutional rights to a public trial and confrontation, the CA opined that petitioners would still be accorded the right to cross-examine the deponent witness and raise their objections during the deposition-taking in the same manner as in a regular court trial.

We disagree. There is a great deal of difference between the face-to- face confrontation in a public criminal trial in the presence of the presiding judge and the cross-examination of a witness in a foreign

place outside the courtroom in the absence of a trial judge. In the aptly cited case of People v. Estenzo,21 the Court noted the uniqueness and significance of a witness testifying in open court, thus:

"The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. "The opponent", according to an eminent authority, "demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross examination which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." There is also the advantage of the witness before the judge, and it is this – it enables the judge as trier of facts "to obtain the elusive and incommunicable evidence of a witness' deportment while testifying, and a certain subjective moral effect is produced upon the witness. It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. Certainly, the physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. These can only be observed by the judge if the witness testifies orally in court. x x x"22 (Underscoring supplied)1âwphi1

The right of confrontation, on the other hand, is held to apply specifically to criminal proceedings and to have a twofold purpose: (1) to afford the accused an opportunity to test the testimony of witnesses by cross-examination, and (2) to allow the judge to observe the deportment of witnesses.23 The Court explained in People v. Seneris24that the constitutional requirement "insures that the witness will give his testimony under oath, thus deterring lying by the threat of perjury charge; it forces the witness to submit to cross-examination, a valuable instrument in exposing falsehood and bringing out the truth; and it enables the court to observe the demeanor of the witness and assess his credibility."25

As the right of confrontation is intended "to secure the accused in the right to be tried as far as facts provable by witnesses as meet him face to face at the trial who give their testimony in his presence, and give to the accused an opportunity of cross-examination,"26 it is properly viewed as a guarantee against the use of unreliable testimony in criminal trials. In the American case of Crawford v. Washington,27 the US Supreme Court had expounded on the procedural intent of the confrontation requirement, thus:

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's right to confront witness face to face protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability". Certainly, none of the authorities discussed above acknowledges any general reliability exception to the common-law rule.

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." (Underscoring supplied)

The Webb Ruling is Not on All Fours with the Instant Case

The CA found the frail and infirm condition of the prosecution witness as sufficient and compelling reason to uphold the MeTC Orders granting the deposition-taking, following the ruling in the case of People v. Webb28 that the taking of an unavailable witness' deposition is in the nature of a discovery procedure the use of which is within the trial court's sound discretion which needs only to be exercised in a reasonable manner and in consonance with the spirit of the law.29

But the ruling in the cited case is not instantly applicable herein as the factual settings are not similar.1âwphi1 The accused in the Webb case had sought to take the oral deposition of five defense witnesses before a Philippine consular agent in lieu of presenting them as live witnesses, alleging that they were all residents of the United States who could not be compelled by subpoena to testify in court. The trial court denied the motion of the accused but the CA differed and ordered the deposition taken. When the matter was raised before this Court, we sustained the trial court's disallowance of the deposition-taking on the limited ground that there was no necessity for the procedure as the matter sought to be proved by way of deposition was considered merely corroborative of the evidence for the defense.30

In this case, where it is the prosecution that seeks to depose the complaining witness against the accused, the stringent procedure

under Section 15, Rule 119 cannot be ignored without violating the constitutional rights of the accused to due process.

Finally, the Court takes note that prosecution witness Li Luen Ping had managed to attend the initial trial proceedings before the MeTC of Manila on September 9, 2004. At that time, Li Luen Ping's old age and fragile constitution should have been unmistakably apparent and yet the prosecution failed to act with zeal and foresight in having his deposition or testimony taken before the MeTC pursuant to Section 15, Rule 119 of the Revised Rules of Court. In fact, it should have been imperative for the prosecution to have moved for the preservation of Li Luen Ping's testimony at that first instance given the fact that the witness is a non-resident alien who can leave the Philippines anytime without any definite date of return. Obviously, the prosecution allowed its main witness to leave the court's jurisdiction without availing of the court procedure intended to preserve the testimony of such witness. The loss of its cause is attributable to no other party.

Still, even after failing to secure Li Luen Ping's conditional examination before the MeTC prior to said witness' becoming sick and unavailable, the prosecution would capitalize upon its own failure by pleading for a liberal application of the rules on depositions. It must be emphasized that while the prosecution must provide the accused every opportunity to take the deposition of witnesses that are material to his defense in order to avoid charges of violating the right of the accused to compulsory process, the State itself must resort to deposition-taking sparingly if it is to guard against accusations of violating the right of the accused to meet the witnesses against him face to face. Great care must be observed in the taking and use of depositions of prosecution witnesses to the end that no conviction of an accused will rely on ex parte affidavits and deposition.31

Thus, the CA ignored the procedure under the Revised Rules of Criminal Procedure for taking the deposition of an unavailable prosecution witness when it upheld the trial court's order allowing the deposition of prosecution witness Li Luen Ping to take place in a venue other than the court where the case is pending. This was certainly grave abuse of discretion.

WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated February 19, 2008 and the Resolution dated November 28, 2008 of the Court of Appeals are REVERSED and SET ASIDE. Accordingly, the Decision of the Regional Trial Court

which disallowed the deposition-taking in Laos, Cambodia is REINSTATED.

SO ORDERED.

ESTELA M. PERLAS-BERNABEAssociate justice

3. Vda. De Manguerra v. RIsos

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 152643             August 28, 2008

CONCEPCION CUENCO VDA. DE MANGUERRA and THE HON. RAMON C. CODILLA, JR., Presiding Judge of the Regional Trial Court of Cebu City, Branch 19, petitioners, vs.RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ and ATTY. GAMALIEL D.B. BONJE,respondents.

D E C I S I O N

NACHURA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Court of Appeals (CA) Decision1 dated August 15, 2001 and its Resolution2 dated March 12, 2002. The CA decision set aside the Regional Trial Court (RTC) Orders dated August 25, 20003 granting Concepcion Cuenco Vda. de Manguerra’s (Concepcion’s) motion to take deposition, and dated November 3, 20004 denying the motion for reconsideration of respondents Raul G. Risos, Susana Yongco, Leah Abarquez, and Atty. Gamaliel D.B. Bonje.

The facts of the case, as culled from the records, follow:

On November 4, 1999, respondents were charged with Estafa Through Falsification of Public Document before the RTC of Cebu

City, Branch 19, through a criminal information dated October 27, 1999, which was subsequently amended on November 18, 1999. The case, docketed as Criminal Case No. CBU-52248,5 arose from the falsification of a deed of real estate mortgage allegedly committed by respondents where they made it appear that Concepcion, the owner of the mortgaged property known as the Gorordo property, affixed her signature to the document. Hence, the criminal case.6

Earlier, on September 10, 1999, Concepcion, who was a resident of Cebu City, while on vacation in Manila, was unexpectedly confined at the Makati Medical Center due to upper gastro-intestinal bleeding; and was advised to stay in Manila for further treatment.7

On November 24, 1999, respondents filed a Motion for Suspension of the Proceedings in Criminal Case No. CBU-52248 on the ground of prejudicial question. They argued that Civil Case No. CEB-20359, which was an action for declaration of nullity of the mortgage, should first be resolved.8 On May 11, 2000, the RTC granted the aforesaid motion. Concepcion’s motion for reconsideration was denied on June 5, 2000.9

This prompted Concepcion to institute a special civil action for certiorari before the CA seeking the nullification of the May 11 and June 5 RTC orders. The case was docketed as CA-G.R. SP No. 60266 and remains pending before the appellate court to date.10

On August 16, 2000, the counsel of Concepcion filed a motion to take the latter’s deposition.11 He explained the need to perpetuate Concepcion’s testimony due to her weak physical condition and old age, which limited her freedom of mobility.

On August 25, 2000, the RTC granted the motion and directed that Concepcion’s deposition be taken before the Clerk of Court of Makati City.12 The respondents’ motion for reconsideration was denied by the trial court on November 3, 2000. The court ratiocinated that procedural technicalities should be brushed aside because of the urgency of the situation, since Concepcion was already of advanced age.13 After several motions for change of venue of the deposition-taking, Concepcion’s deposition was finally taken on March 9, 2001 at her residence.14

Aggrieved, respondents assailed the August 25 and November 3 RTC orders in a special civil action for certiorari before the CA in CA-G.R. SP No. 62551.15

On August 15, 2001, the CA rendered a Decision16 favorable to the respondents, the dispositive portion of which reads:

WHEREFORE, the petition is GRANTED and the August 25, 2000 and November 3, 2000 orders of the court a quo are hereby SET ASIDE, and any deposition that may have been taken on the authority of such void orders is similarly declared void.

SO ORDERED.17

At the outset, the CA observed that there was a defect in the respondents’ petition by not impleading the People of the Philippines, an indispensable party. This notwithstanding, the appellate court resolved the matter on its merit, declaring that the examination of prosecution witnesses, as in the present case, is governed by Section 15, Rule 119 of the Revised Rules of Criminal Procedure and not Rule 23 of the Rules of Court. The latter provision, said the appellate court, only applies to civil cases. Pursuant to the specific provision of Section 15, Rule 119, Concepcion’s deposition should have been taken before the judge or the court where the case is pending, which is the RTC of Cebu, and not before the Clerk of Court of Makati City; and thus, in issuing the assailed order, the RTC clearly committed grave abuse of discretion. 18

In its Resolution dated March 12, 2002 denying petitioner’s motion for reconsideration, the CA added that the rationale of the Rules in requiring the taking of deposition before the same court is the constitutional right of the accused to meet the witnesses face to face. The appellate court likewise concluded that Rule 23 could not be applied suppletorily because the situation was adequately addressed by a specific provision of the rules of criminal procedure.19

Hence, the instant petition raising the following issues:

I.

WHETHER OR NOT RULE 23 OF THE 1997 RULES OF CIVIL PROCEDURE APPLIES TO THE DEPOSITION OF PETITIONER.

II.

WHETHER OR NOT FAILURE TO IMPLEAD THE "PEOPLE OF THE PHILIPPINES" IN A PETITION FOR CERTIORARI ARISING FROM A CRIMINAL CASE A QUO CONSTITUTES A WAIVABLE DEFECT IN THE PETITION FOR CERTIORARI.20

It is undisputed that in their petition for certiorari before the CA, respondents failed to implead the People of the Philippines as a party thereto. Because of this, the petition was obviously defective. As provided in Section 5, Rule 110 of the Revised Rules of Criminal Procedure, all criminal actions are prosecuted under the direction and control of the public prosecutor. Therefore, it behooved the

petitioners (respondents herein) to implead the People of the Philippines as respondent in the CA case to enable the Solicitor General to comment on the petition.21

However, this Court has repeatedly declared that the failure to implead an indispensable party is not a ground for the dismissal of an action. In such a case, the remedy is to implead the non-party claimed to be indispensable. Parties may be added by order of the court, on motion of the party or on its own initiative at any stage of the action and/or such times as are just. If the petitioner/plaintiff refuses to implead an indispensable party despite the order of the court, the latter may dismiss the complaint/petition for the petitioner’s/plaintiff’s failure to comply.22

In this case, the CA disregarded the procedural flaw by allowing the petition to proceed, in the interest of substantial justice. Also noteworthy is that, notwithstanding the non-joinder of the People of the Philippines as party-respondent, it managed, through the Office of the Solicitor General, to file its Comment on the petition for certiorari. Thus, the People was given the opportunity to refute the respondents’ arguments.

Instructive is the Court’s pronouncement in Commissioner Domingo v. Scheer23 in this wise:

There is nothing sacred about processes or pleadings, their forms or contents. Their sole purpose is to facilitate the application of justice to the rival claims of contending parties. They were created, not to hinder and delay, but to facilitate and promote, the administration of justice. They do not constitute the thing itself, which courts are always striving to secure to litigants. They are designed as the means best adapted to obtain that thing. In other words, they are a means to an end. When they lose the character of the one and become the other, the administration of justice is at fault and courts are correspondingly remiss in the performance of their obvious duty.24

Accordingly, the CA cannot be faulted for deciding the case on the merits despite the procedural defect.

On the more important issue of whether Rule 23 of the Rules of Court applies to the instant case, we rule in the negative.

It is basic that all witnesses shall give their testimonies at the trial of the case in the presence of the judge.25 This is especially true in criminal cases in order that the accused may be afforded the opportunity to cross-examine the witnesses pursuant to his constitutional right to confront the witnesses face to face.26 It also

gives the parties and their counsel the chance to propound such questions as they deem material and necessary to support their position or to test the credibility of said witnesses.27 Lastly, this rule enables the judge to observe the witnesses’ demeanor.28

This rule, however, is not absolute. As exceptions, Rules 23 to 28 of the Rules of Court provide for the different modes of discovery that may be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of witnesses or as modes of discovery. In criminal proceedings, Sections 12,29 1330 and 15,31 Rule 119 of the Revised Rules of Criminal Procedure, which took effect on December 1, 2000, allow the conditional examination of both the defense and prosecution witnesses.

In the case at bench, in issue is the examination of a prosecution witness, who, according to the petitioners, was too sick to travel and appear before the trial court. Section 15 of Rule 119 thus comes into play, and it provides:

Section 15. Examination of witness for the prosecution. – When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused.

Petitioners contend that Concepcion’s advanced age and health condition exempt her from the application of Section 15, Rule 119 of the Rules of Criminal Procedure, and thus, calls for the application of Rule 23 of the Rules of Civil Procedure.

The contention does not persuade.

The very reason offered by the petitioners to exempt Concepcion from the coverage of Rule 119 is at once the ground which places her squarely within the coverage of the same provision. Rule 119 specifically states that a witness may be conditionally examined: 1) if the witness is too sick or infirm to appear at the trial; or 2) if the witness has to leave the Philippines with no definite date of returning. Thus, when Concepcion moved that her deposition be taken, had she not been too sick at that time, her motion would have been denied. Instead of conditionally examining her outside the trial court,

she would have been compelled to appear before the court for examination during the trial proper.

Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus required that the conditional examination be made before the court where the case is pending. It is also necessary that the accused be notified, so that he can attend the examination, subject to his right to waive the same after reasonable notice. As to the manner of examination, the Rules mandate that it be conducted in the same manner as an examination during trial, that is, through question and answer.

At this point, a query may thus be posed: in granting Concepcion’s motion and in actually taking her deposition, were the above rules complied with? The CA answered in the negative. The appellate court considered the taking of deposition before the Clerk of Court of Makati City erroneous and contrary to the clear mandate of the Rules that the same be made before the court where the case is pending. Accordingly, said the CA, the RTC order was issued with grave abuse of discretion.

We agree with the CA and quote with approval its ratiocination in this wise:

Unlike an examination of a defense witness which, pursuant to Section 5, Rule 119 of the previous Rules, and now Section 13, Rule 119 of the present Revised Rules of Criminal Procedure, may be taken before any "judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or, if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein," the examination of a witness for the prosecution under Section 15 of the Revised Rules of Criminal Procedure (December 1, 2000) may be done only "before the court where the case is pending."32

Rule 119 categorically states that the conditional examination of a prosecution witness shall be made before the court where the case is pending. Contrary to petitioners’ contention, there is nothing in the rule which may remotely be interpreted to mean that such requirement applies only to cases where the witness is within the jurisdiction of said court and not when he is kilometers away, as in the present case. Therefore, the court may not introduce exceptions or conditions. Neither may it engraft into the law (or the Rules) qualifications not contemplated.33 When the words are clear and categorical, there is no room for interpretation. There is only room for application.34

Petitioners further insist that Rule 23 applies to the instant case, because the rules on civil procedure apply suppletorily to criminal cases.

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However, it is likewise true that the criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise.

To reiterate, the conditional examination of a prosecution witness for the purpose of taking his deposition should be made before the court, or at least before the judge, where the case is pending. Such is the clear mandate of Section 15, Rule 119 of the Rules. We find no necessity to depart from, or to relax, this rule. As correctly held by the CA, if the deposition is made elsewhere, the accused may not be able to attend, as when he is under detention. More importantly, this requirement ensures that the judge would be able to observe the witness’ deportment to enable him to properly assess his credibility. This is especially true when the witness’ testimony is crucial to the prosecution’s case.

While we recognize the prosecution’s right to preserve its witness’ testimony to prove its case, we cannot disregard rules which are designed mainly for the protection of the accused’s constitutional rights. The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.

WHEREFORE, the petition is hereby DENIED. The Court of Appeals Decision and Resolution dated August 25, 2000 and March 12, 2002, respectively, in CA-G.R. SP No. 62551, are AFFIRMED.

SO ORDERED.

Ynares-Santiago, Chairperson, Austria-Martinez, Chico-Nazario, Reyes, JJ., concur.

4. Allied Agri-Business Development Co. Inc. v. CA

FIRST DIVISION

[G.R. No. 118438. December 4, 1998]

ALLIED AGRI-BUSINESS DEVELOPMENT CO., INC., vs. COURT OF APPEALS and CHERRY VALLEY FARMS LIMITED, respondents.

D E C I S I O N

BELLOSILLO, J.:

ALLIED AGRI-BUSINESS DEVELOPMENT CO., INC. assails in this petition the decision of the Court of Appeals which affirmed the judgment of the trial court granting the motion for summary judgment filed by Cherry Valley Farms Limited based on the implied admissions of petitioner.

On 14 October 1986 respondent Cherry Valley Farms Limited (CHERRY VALLEY), a foreign company based in England, filed against petitioner Allied Agri-Business Development Co. Inc. (ALLIED) a complaint with the Regional Trial Court of Makati City for collection of sum of money alleging, among others that: (a) CHERRY VALLEY is a foreign corporation with principal office at Rothwell, Lincoln, England; (b) on 1 September 1982 up to 16 February 1983, or for a period of less than six (6) months, petitioner ALLIED purchased in ten (10) separate orders and received from respondent CHERRY VALLEY several duck hatching eggs and ducklings which in value totaled 51,245.12; (c) ALLIED did not pay the total purchase price of 51,245.12 despite repeated demands evidenced by a letter of Solicitor Braithwaite of England in behalf of CHERRY VALLEY; (d) instead of paying its obligation, ALLIED through its president wrote CHERRY VALLEY on 17 July 1985 inviting the latter to be a stockholder in a new corporation to be formed by ALLIED, which invitation however was rejected by CHERRY VALLEY on 26 September 1985; and, (e) ALLIED's president Ricardo Quintos expressly acknowledged through a letter of 8 October 1985 the obligation of his corporation to CHERRY VALLEY. The complaint also prayed that ALLIED be made to pay the sum of 51,245.12 or its peso equivalent at the time of payment, plus legal interest from date of filing of the complaint until full payment, and twenty percent (20%) of the total amount being claimed from petitioner as attorneys fees; and, to pay the costs of suit.

On 27 February 1986 ALLIED filed an answer[1] denying the material allegations of the complaint and contended that: (a) private

respondent CHERRY VALLEY lacked the legal capacity to sue; (b) the letter of Quintos to CHERRY VALLEY was never authorized by the board of petitioner ALLIED, thus any admission made in that letter could not bind ALLIED; (c) the alleged amount of 51,245.12 did not represent the true and real obligation, if any, of petitioner; (d) to the best of the knowledge of ALLIED, not all ducks and ducklings covered and represented by CHERRY VALLEYs invoices were actually ordered by the former; and, (e) private respondent had no cause of action against petitioner.

On 19 July 1988, CHERRY VALLEY served on ALLIEDs counsel a Request for Admission[2] dated 15 July 1988 worded as follows:

1. That the chairman of the board of directors and president of your corporation is Mr. Ricardo V. Quintos;

2. That out of the 3,000,000 subscribed shares of stock, 1,496,000 shares is (sic) owned by Mr. Ricardo Quintos and 1,432,000 shares is(sic) also owned by his wife, Agnes dela Torre;

3. That for a period of six (6) months starting from 1 September 1982, your corporation ordered and received from CHERRY VALLEY duck eggs and ducklings with a total value of 51,245.12 as reflected on CHERRY VALLEY invoices issued to you;

4. That you received a letter dated 22 March 1985 from Mr. P.R.C. Braithwaite, solicitor of CHERRY VALLEY, demanding settlement of your unpaid account of 52,245.12 for the above-stated purchases;

5. That instead of paying your obligation to CHERRY VALLEY, Mr. Ricardo Quintos, in his capacity as president of your corporation, sent a letter to CHERRY VALLEY dated 17 July 1985 proposing the setting up of a new corporation with CHERRY VALLEY refusing acceptance of your proposal;

6. That you received a letter dated 26 September 1985 from Mr. J. Cross, Director and Secretary of CHERRY VALLEY refusing acceptance of your proposal;

7. That Mr. Ricardo Quintos in a letter dated 8 October 1985 admitted your indebtedness in the sum of English Sterling Pounds 51,245.12.

It is further requested that said sworn admission be made within 10 days from receipt of this request.

ALLIED filed its Comments/Objections[3] alleging that: (a) the admissions requested were matters which the private respondent had the burden to prove through its own witness during the trial and thus petitioner need not answer; and, (b) the request for admission regarding the ownership set-up of petitioner corporation was immaterial and improper for not having been pleaded in the complaint.

In its Reply[4] to Comments/Objections to Request for Admission, CHERRY VALLEY maintained that there was no need on its part to produce a witness to testify on the matters requested for admission, for these pertained to incidents personal to and within the knowledge of petitioner alone. Thereafter, on 2 August 1998, CHERRY VALLEY filed a motion with the trial court to resolve the objections of ALLIED to the request for admission.

On 11 August 1988 the trial court issued an Order[5] disregarding ALLIEDs Comments/Objections to Request for Admission in view of its non-compliance with Sec. 2, Rule 26, of the Rules of Court and directing ALLIED to answer the request for admission within ten (10) days from receipt of the order, otherwise, the matters contained in the request would be deemed admitted. ALLIED moved to reconsider the order; however, on 8 November 1988 the lower court denied[6] ALLIEDs motion for reconsideration and directed the latter to answer the request for admission within a nonextendible period of five (5) days from receipt of the order.

ALLIED failed to submit a sworn answer to the request for admission within the additional period of five (5) days granted by the trial court. Hence, CHERRY VALLEY filed a motion for summary judgment[7] alleging that there was already an implied admission on the matters requested for admission pursuant to Rule 26 of the Rules of Court.

On 23 October 1990, the trial court rendered judgment[8] against petitioner: (a) Ordering defendant to pay plaintiff the sum of -51,245.12 or its peso equivalent at the time of payment plus legal interest from the date of filing of this complaint until fully paid; and, (b) Ordering defendant to pay plaintiff ten percent (10%) of the total amount due from defendant by way of attorneys fees since no protracted trial was held in this case, plus cost of suit.

ALLIED appealed to the Court of Appeals. On 6 September 1994 the Court of Appeals rendered a decision[9] affirming the

summary judgment rendered by the trial court with the modification that ALLIED should pay the monetary award to CHERRY VALLEY in Philippine currency and that the award of attorneys fees and costs of suit be deleted.

Hence, the instant petition by ALLIED alleging that serious errors were committed by the Court of Appeals in affirming the summary judgment of the trial court; that the complaint should have been instantly dismissed on the ground of lack of personality to sue on the part of respondent CHERRY VALLEY; that the summary judgment was tantamount to a denial of ALLIEDs right to due process for not requiring CHERRY VALLEY to produce its own witness; and, that the admission requested were matters which CHERRY VALLEY had the burden to prove during the trial.

The petition must fail. We cannot sustain the allegation that respondent CHERRY VALLEY being an unlicensed foreign corporation lacked the legal capacity to institute the suit in the trial court for the recovery of money claims from petitioner. In fact, petitioner is estopped from challenging or questioning the personality of a corporation after having acknowledged the same by entering into a contract with it.[10] The doctrine of lack of capacity to sue or failure of a foreign corporation to acquire a local license was never intended to favor domestic corporations who enter into solitary transactions with unwary foreign firms and then repudiate their obligations simply because the latter are not licensed to do business in this country.[11]

Petitioner cannot also successfully argue that its failure to answer the request for admission did not result in its admission of the matters stated in the request. Section 1 of Rule 26 of the Rules of Court provides:

SECTION 1. Request for admission. - At any time after issues have been joined, a party may file and serve upon any other party a written request for the admission by the latter of the genuineness of any material and relevant document described in and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished.

The purpose of the rule governing requests for admission of facts and genuineness of documents is to expedite trial and to relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry. Each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the request which shall not be less than fifteen (15) days after service thereof, or

within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.[12] Upon service of request for admission, the party served may do any of the following acts: (a) he may admit each of the matters of which an admission is requested, in which case, he need not file an answer; (b) he may admit the truth of the matters of which admission is requested by serving upon the party requesting a written admission of such matters within the period stated in the request, which must not be less than ten (10) days after service, or within such further time as the court may allow on motion and notice; (c) he may file a sworn statement denying specifically the matter of which an admission is requested; or, (d) he may file a sworn statement setting forth in detail the reasons why he cannot truthfully either admit or deny the matters of which an admission is requested.[13]

The records show that although petitioner filed with the trial court its comments and objections to the request for admission served on it by private respondent, the trial court disregarded the objections and directed petitioner after denying its motion for reconsideration, to answer the request within five (5) days from receipt of the directive; otherwise, the matters of which the admission was requested would be deemed admitted. Petitioner failed to submit the required answer within the period. The matter set forth in the request were therefore deemed admitted by petitioner, i.e., (a) that for a period of six (6) months starting from 1 September 1982, petitioner ordered and received from respondent CHERRY VALLEY duck eggs and ducklings amounting to 51,245.12; (b) that petitioner received a letter dated 22 March 1985 from private respondents lawyer demanding payment of the amount of the purchases; (c) that instead of paying the obligation to respondent CHERRY VALLEY, petitioners president Ricardo Quintos sent a letter to the former proposing the establishment of a new corporation with CHERRY VALLEY as one of the stockholders; (d) that the proposal was refused by the Director of CHERRY VALLEY; and, (e) that petitioners president Ricardo Quintos admitted the indebtedness of his corporation to CHERRY VALLEY in the sum of English Sterling Pounds 51,245.12.

The burden of affirmative action is on the party upon whom notice is served to avoid the admission rather than upon the party seeking the admission.[14] Hence, when petitioner failed to reply to a request to admit, it may not argue that the adverse party has the

burden of proving the facts sought to be admitted. Petitioners silence is an admission of the facts stated in the request.[15]

This Court finds that the motion for summary judgment filed by respondent CHERRY VALLEY on the ground that there were no questions of fact in issue since the material allegations of the complaint were not disputed was correctly granted by the trial court. It is a settled rule that summary judgment may be granted if the facts which stand admitted by reason of a partys failure to deny statements contained in a request for admission show that no material issue of fact exists.[16] By its failure to answer the other partys request for admission, petitioner has admitted all the material facts necessary for judgment against itself.[17]

WHEREFORE, the Petition is DENIED. The decision of the Court of Appeals dated 6 September 1994 which AFFIRMED the trial court in "ordering defendant to pay plaintiff the sum of 51,245.12 or its peso equivalent at the time of payment plus legal interest from the date of filing of this complaint until fully paid;" and "ordering defendant to pay plaintiff ten percent (10%) of the total amount due from defendant by way of attorney's fees since no protacted trial was held in this case plus cost of suit," with the modification that "Allied shall pay the monetary award of attorney's fees and costs of suit be deleted," is AFFIRMED. Costs against herein petitioner Allied Agri-Business Development Co., Inc.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Vitug, Panganiban, and Quisumbing, JJ., concur

5. People v. Webb (1999)

FIRST DIVISION

[G.R. No. 132577. August 17, 1999]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HUBERT JEFFREY P. WEBB, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

Challenged in this petition for review on certiorari is the Decision of the Court of Appeals in CA-G.R. SP No. 45399 entitled Hubert Jeffrey P. Webb v. Hon. Amelita Tolentino, in her capacity as Presiding Judge of Branch 274 of the Regional Trial Court of Paraaque, People of the Philippines and Lauro Vizconde which set aside the order of respondent judge therein denying herein respondent Hubert Jeffrey P. Webbs request to take the depositions of five (5) citizens and residents of the United States before the proper consular officer of the Philippines in Washington D.C. and California, as the case may be.

The factual and procedural antecedents are matters of record or are otherwise uncontroverted.

Respondent Hubert Jeffrey P. Webb is one of the accused in Criminal Case No. 95-404 for Rape with Homicide entitled People of the Philippines v. Hubert Jeffrey P. Webb, et al. presently pending before Branch 274 of the Regional Trial Court of Paraaque, presided by Judge Amelita G. Tolentino.

During the course of the proceedings in the trial court, respondent filed on May 2, 1997, a Motion To Take Testimony By Oral Deposition[1] praying that he be allowed to take the testimonies of the following:

1.] Steven BucherActing Chief, Records Services BranchU.S. Department of JusticeImmigration and Naturalization Service425 Eye Street, N.W.Washington D.C. 20536U.S.A.

2.] Debora FarmerRecords Operations, Office of RecordsU.S. Department of JusticeImmigration and Naturalization ServiceWashington D.C.U.S.A.

3.] Jaci AlstonDepartment of Motor VehiclesSacramento, CaliforniaU.S.A.

4.] Ami SmalleyDepartment of Motor VehiclesSacramento, CaliforniaU.S.A.

5.] John Pavlisin210 South Glasell, City of OrangeCalifornia, 92666U.S.A.

before the general consul, consul, vice-consul or consular agent of the Philippines in lieu of presenting them as witnesses in court alleging that the said persons are all residents of the United States and may not therefore be compelled by subpoena to testify since the court had no jurisdiction over them.

Respondent further alleged that the taking of the oral depositions of the aforementioned individuals whose testimonies are allegedly material and indispensable to establish his innocence of the crime charged is sanctioned by Section 4, Rule 24 of the Revised Rules of Court which provides that:

SEC. 4. Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;

(c) The deposition of a witness whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; (2) that the witness is out of the province and a greater distance than fifty (50) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been

unable to procure the attendance of the witness by subpoena or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used;

(d)  If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced and any party may introduce any other parts. (italics supplied).

The prosecution thereafter filed an opposition to the said motion averring that: 1.] Rule 24, Section 4 of the Rules of Court, contrary to the representation of respondent-accused, has no application in criminal cases; 2.] Rule 119, Section 4 of the Rules of Court on Criminal Procedure, being a mode of discovery, only provides for conditional examination of witnesses for the accused before trial not during trial; 3.] Rule 119, Section 5 of the Rules of Court on Criminal Procedure does not sanction the conditional examination of witnesses for the accused/defense outside Philippine jurisdiction.[2]

In an Order dated June 11, 1997, the trial court denied the motion of respondent on the ground that the same is not allowed by Section 4, Rule 24 and Sections 4 and 5 of Rule 119 of the Revised Rules of Court.[3]

A motion for reconsideration[4] thereto on the grounds that: 1.] The 1997 Rules of Court expressly allows the taking of depositions, and 2.] Section 11 of Rule 23 of the 1997 Rules of Court expressly allows the taking of depositions in foreign countries before a consul general, consul, vice-consul or consular agent of the Republic of the Philippines, was likewise denied by the trial court in an order dated July 25, 1997.[5]

Dissatisfied, respondent elevated his cause to the Court of Appeals by way of a petition for certiorari[6] naming as respondents therein the Presiding Judge Amelita G. Tolentino, the People and private complainant Lauro Vizconde. In the petition, docketed as CA-G.R. SP No. 45399, respondent Webb argued that: 1.] The taking of depositions pending action is applicable to criminal proceedings; 2.] Depositions by oral testimony in a foreign country can be taken before a consular officer of the Philippine Embassy in the United States; and, 3.] He has the right to completely and fully present evidence to support his defense and the denial of such right will violate his constitutional right to due process.

Commenting[7] on the petition, the People contended that the questioned orders of the Presiding Judge are well within the sphere of her judicial discretion and do not constitute grave abuse of discretion amounting to lack or excess of jurisdiction and that if at all, they may be considered merely as errors of judgment which may be corrected by appeal in due time because: a.] The motion failed to comply with the requirements of Section 4, Rule 119 of the Rules of Court; b.] The conditional examination must be conducted before an inferior court; and c.] The examination of the witnesses must be done in open court.

In his Comment,[8] private respondent Lauro Vizconde sought the dismissal of the petition contending that:

1.] The public respondent did not commit grave abuse of discretion in denying petitioner [now herein respondent] Webbs motion to take testimony by oral deposition dated 29 April 1997 as well as petitioners motion for reconsideration dated 23 June 1997 for not being sanctioned by the Rules of Court.

a.] The public respondent correctly held that Rule 23, Section 1 of the 1997 Revised Rules of Civil Procedure finds no application in criminal actions such as the case at bar.

b.] The public respondent correctly ruled that Rule 119, Section 4 of the Rules of Criminal Procedure only provides for conditional examination of witnesses before trial but not during trial.

c.] The public respondent correctly ruled that Rule 119 of the Rules on Criminal Procedure does not sanction the conditional examination of witnesses for the accused/defense outside of Philippine jurisdiction.

2.] The public respondent did not commit any grave abuse of discretion in denying petitioner Webbs motion to take testimony by oral deposition considering that the proposed deposition tends only to further establish the admissibility of documentary exhibits already admitted in evidence by the public respondent.

On February 6, 1998, the Fourth Division[9] of the Court of Appeals rendered judgment,[10] the dispositive portion of which reads:

WHEREFORE, the petition is GRANTED. The orders of respondent judge dated 11 June 1997 (Annex A of the Petition) and 25 July

1997 (Annex B of the Petition) are hereby ANNULLED and SET ASIDE.  It is hereby ordered that the deposition of the following witnesses be TAKEN before the proper consular officer of the Republic of the Philippines in Washington D.C. and California, as the case may be:

(a) Mr. Steven Bucher;(b) Ms. Deborah Farmer;(c) Mr. Jaci Alston;(d) Ms. Ami Smalley; and

(e) Mr. John Pavlisin.

SO ORDERED.

From the foregoing, the People forthwith elevated its cause to this Court by way of the instant petition dispensing with the filing of a motion for reconsideration for the following reasons: 1.] The rule that the petitioner should first file a motion for reconsideration applies to the special civil action of certiorari under Rule 65 of the 1997 Rules of Civil Procedure and there is no similar requirement in taking an appeal from a final judgment or order[11] such as the present appeal by certiorari; 2.] Section 4, Rule 45 in requiring a petition for review on certiorariwhich indicates that when a motion for new trial or reconsideration, if any, was filed implies that petitioner need not file a motion for reconsideration; 3.] The questions being raised before the Court are the same as those which were squarely raised before the Court of Appeals;[12] 4.] The issues being raised here are purely legal;[13] 5.] There is an urgent need to resolve the issues considering that the trial of the accused in the criminal case is about to end; and, 6.] The nature of this case requires a speedy and prompt disposition of the issues involved.[14]

What are challenged before this Court are interlocutory orders and not a final judgment. The respondent has filed his Comment[15] which We treat as an Answer. The petitioner, in turn, filed a Reply.[16] The petition is ripe for decision.

In urging this Tribunal to exercise its power of review over the assailed decision of the Appellate Court, petitioner asserts that the Court of Appeals committed serious and reversible error

I

IN RULING THAT RULE 23 OF THE 1997 RULES OF CIVIL PROCEDURE IS APPLICABLE TO CRIMINAL PROCEEDINGS.

II

IN RULING THAT THE DEPOSITION MAY BE TAKEN BEFORE A CONSULAR OFFICER OF THE PHILIPPINES WHERE THE PROSPECTIVE WITNESSES RESIDE OR ARE OFFICIALLY STATIONED.

III

IN RULING THAT RESPONDENT WAS DEPRIVED OF DUE PROCESS OF LAW BY THE TRIAL COURT.

which can be reduced to the primordial issue of whether or not the trial judge gravely abused her discretion in denying the motion to take testimony by oral depositions in the United States which would be used in the criminal case before her Court.

In setting aside the order of the trial judge, the Appellate Courts Fourth Division reasoned, inter alia,  thus:

Settled is the rule that the whole purpose and object of procedure is to make the powers of the court fully and completely available for justice. Thus, as the Supreme Court has ruled in Manila Railroad Co. vs. Attorney General and reiterated in subsequent cases:

x x x The most perfect procedure that can be devised is that which give the opportunity for the most complete and perfect exercise of the powers of the court within the limitations set by natural justice. It is that one which, in other words, gives the most perfect opportunity for the powers of the court to transmute themselves into concrete acts of justice between the parties before it. The purpose of such a procedure is not to restrict the jurisdiction of the court over the subject matter, but to give it effective facility in righteous action. It may be said in passing that the most salient objection which can be urged against procedure today is that it so restricts the exercise of the courts powers by technicalities that part of its authority effective for justice between the parties is many times an inconsiderable portion of the whole. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival claims of the contending parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not constitute the thing itself which the courts are always striving to secure the litigants. It is designed as the means best adapted to obtain that thing. In other words, it is a means to an end. It is the means by which the powers of the court are made

effective in just judgments. When it loses the character of the one and takes on the other [,] the administration of justice becomes incomplete and unsatisfactory and lays itself open to grave criticism.[17]

In the light of the foregoing judicial precedent, this Court finds that the public respondent gravely abused her discretion in denying the motion to take the deposition of the witnesses for petitioner. While petitioner had invoked Rule 23, Section 1 of the Rules of Court, which is found under the general classification of Civil Procedure, it does not prevent its application to the other proceedings, provided the same is not contrary to the specific rules provided therein.  Indeed, the Rules of Court is to be viewed and construed as a whole, and if the Supreme Court had compartmentalized the same into four divisions, it was, as petitioner had claimed, for the purpose of organization and expediency and not, for exclusivity.

To be sure, a reading of the rules on criminal procedure, specifically Section 4, Rule 119 vis--vis Section 1, Rule 23 would reveal no inconsistency so as to exclude the application of the latter rule in criminal proceedings. Section 4, Rule 119 refers to the conditional examination of witnesses for the accused before  trial, while Section 1, Rule 23 refers to the taking of deposition witnesses during  trial. x x x

x x x x x x x x x

While the taking of depositions pending trial is not expressly provided [for] under the Rules on Criminal Procedure, we find no reason for public respondent to disallow the taking of the same in the manner provided for under Section 1 of Rule 23 under the circumstances of the case. To disallow petitioner to avail of the specific remedies provided under the Rules would deny him the opportunity to adequately defend himself against the criminal charge of rape with homicide now pending before the public respondent and, further, [it] loses sight of the object of procedure which is to facilitate the application of justice to the rival claims of contending parties.

x x x x x x x x x

Even granting arguendo that Rule 23 is to be exclusively applied to civil actions, the taking of the deposition of petitioners US-based witnesses should be still allowed considering that the civil action has been impliedly instituted in the criminal action for rape with

homicide. Since public respondent has jurisdiction over the civil case to recover damages, she exercised full authority to employ all auxillary writs, processes and other means to carry out the jurisdiction conferred and [to] adopt any suitable process or mode of proceeding which includes the application of the rule on depositions pending action under Rule 23 in the case pending before her.

Second. Depositions obtained during trial in a foreign state or country may be taken before a consular officer of the Republic of the Philippines where the deponent resides or is officially stationed.[18] Section 5, Rule 119 of the Rules of Court is thus clearly inapplicable in the instant case since the same relates to the examination of witnesses under Section 4 thereof and not Section 1 of Rule 23. Consistent with the procedure provided [for] under Rule 23, the deposition of the petitioners witnesses, which include four (4) officials of the United States government, will be taken before a consular officer of the Philippines where these witnesses reside or are officially stationed, as the case may be.

The denial of petitioners right to present his witnesses, who are residing abroad, based on a very shaky technical ground, is tantamount to depriving him of his constitutional right to due process. This Court recognizes the impossibility of enforcing the right of petitioner to secure the attendance of the proposed witnesses through compulsory process considering that they are beyond the jurisdiction of Philippine Courts. Petitioner, however, is not without any remedy and he correctly sought to secure the testimonies of his witnesses through the process of taking their depositions pending the trial of Criminal Case No. 95-404 in the court below under Rule 23 of the Rules of Court.  In any event, the prosecution would have the opportunity to cross-examine the witnesses for accused Hubert Webb (petitioner herein) since they will be given the opportunity to cross-examine the deponents as in accordance with Sections 3 to 18 of Rule 132.[19]

Furthermore, no prejudice would be suffered in the taking of the depositions of petitioners US-based witness[es]. On the other hand, a denial of the same would be prejudicial to petitioner-accused since he would be denied an opportunity to completely present his evidence, which strikes at the very core of the due process guarantee of the Constitution. To reiterate, it is not the function of this Court to second-guess the trial court on its ruling on the admissibility of the pieces of documentary evidence as well as the latters witnesses,[20] but it is definitely within this courts inherent power to scrutinize, as it does in the case at bench, the acts of

respondent judge and declare that she indeed committed grave abuse of discretion in issuing the questioned Orders.

In the final analysis, this Court rules that the denial of the deposition-taking amounts to the denial of the constitutional right to present his evidence and for the production of evidence in his behalf. The denial is not justified by the flimsy reason that Sec. 1 of Rule 23 of the Rules of Court is not applicable to criminal proceedings. To rule that petitioner cannot take the testimony of these witnesses by deposition is to put [a] premium on technicality at the expense of the constitutional rights of the accused, which this court is not inclined to do. Particularly where the issue of the guilt or innocence of petitioner is bound to hinge heavily upon the testimonies of his US-based witnesses, it behooves upon public respondent not only to guarantee that accused is given a reasonable opportunity to present his evidence, but also to allow him a certain latitude in the presentation of his evidence, lest he may be so hampered that the ends of justice may eventually be defeated or appear to be defeated. Finally, even if respondents contention is correct, it cannot be denied that the case at bar includes the recovery of the civil liability of the accused, which normally is done through a civil case.

We disagree.

As defined, a deposition is -

"The testimony of a witness taken upon oral question or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution. A pretrial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the court room, usually in one of the lawyers offices. A transcript - word for word account - is made of the deposition. Testimony of [a] witness, taken in writing, under oath or affirmation, before some judicial officer in answer to questions or interrogatories x x x.[21]

and the purposes of taking depositions are to: 1.] Give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury; 2.] Provide an effective means of detecting and exposing false, fraudulent claims and defenses; 3.] Make available in a simple, convenient and inexpensive way, facts which otherwise

could not be proved except with great difficulty; 4.] Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements; 5.]Expedite litigation; 6.] Safeguard against surprise; 7.]Prevent delay; 8.] Simplify and narrow the issues; and 9.] Expedite and facilitate both preparation and trial.[22] As can be gleaned from the foregoing, a deposition, in keeping with its nature as a mode of discovery, should be taken before and not during trial. In fact, rules on criminal practice - particularly on the defense of alibi, which is respondents main defense in the criminal proceedings against him in the court below - states that when a person intends to rely on such a defense, that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion.[23]

It needs to be stressed that the only reason of respondent for seeking the deposition of the foreign witnesses is to foreclose any objection and/or rejection of, as the case may be, the admissibility of Defense Exhibits 218 and 219. This issue has, however, long been rendered moot and academic by the admission of the aforementioned documentary exhibits by the trial court in its order dated July 10, 1998.[24]

In fact, a circumspect scrutiny of the record discloses that the evidence to be obtained through the deposition-taking would be superfluous or corroborative at best. A careful examination of Exhibits 218 and 219 readily shows that these are of the same species of documents which have been previously introduced and admitted into evidence by the trial court in its order dated July 18, 1997 which We noted in Webb, et al. v. People of the Philippines, et al.[25] wherein We pointed out, among others, [t]hat respondent judge reversed this erroneous ruling and already admitted these 132 pieces of evidence after finding that the defects in (their) admissibility have been cured though the introduction of additional evidence during the trial on the merits.[26]

Indeed, a comparison of Exhibit 218-A which is a U.S. Department of State Certification issued by Joan C. Hampton, Assistant Authenticating Officer of the said agency, for and in the name of Madeleine K. Albright, stating that the documents annexed thereto were issued by the U.S. Department of Justice as shown by seal embossed thereon,[27] with other exhibits previously offered as evidence reveals that they are of the same nature as Exhibits 42-H[28] and 42-M.[29] The only difference in the documents lies in the fact that Exhibit 218-A was signed by Joan C. Hampton for and in behalf of the incumbent Secretary of State, Madeleine K. Albright whereas, Exhibits 42-H and 42-M were signed by Authenticating Officer Annie

R. Maddux for and in behalf of former Secretary of State Warren Christopher.[30]

A comparison of Exhibit 218-B[31] with the other documentary exhibits offered by respondent, likewise discloses that its contents are the same as Exhibits 42-I[32] and 42-N.[33] The only difference in the three exhibits, which are actually standard issue certification forms issued by the U.S. Department of Justice with blanks to be filled up, is that Exhibit 218-B is dated February 5, 1997 and signed by one of the U.S. Attorney Generals several Deputy Assistant Attorneys for Administration for and in her behalf, while Exhibits 42-I and 42-N are both dated September 21, 1995 with another of the said deputies signing both documents.[34]

Still comparing respondents Exhibit 218-F,[35] which is likewise a standard issue U.S. Department of Justice Certification Form, with other documents previously introduced as evidence reveals that it is the same as Exhibits 39-D[36] and 42-C.[37] The only differences in these documents are that Exhibit 218-F is dated October 13, 1995 and is signed by Debora A. Farmer while Exhibits "-39-D and 42-C are both dated August 31, 1995 and signed by Cecil G. Christian, Jr., Assistant Commissioner, Officer of Records, INS.[38]

Still further scrutinizing and comparing respondents Exhibit 218-G[39] which was also introduced and admitted into evidence as Defense Exhibit 207-B[40] shows that the document has been earlier introduced and admitted into evidence by the trial court an astounding seven (7) times, particularly as Exhibits 34-A, 35-F, 39-E, 42-D, 42-P, 50 and 50-F.[41] The only difference in these documents is that they were printed on different dates. Specifically, Exhibits 218-G as with Exhibits 34-A, 35-F, 50, and 52-F were printed out on October 26, 1995[42]whereas Exhibit 207-B as with Exhibits 39-E, 42-D and 42-F were printed out on August 31, 1995.[43]

In fact, the records show that respondents: a.] application for Non-Commercial Drivers License; b.] Documentary records based on Clets Database Response; c.] Computer-generated thumb-print; d.] Documentary records based on still another Clets Database Response, and e.] The Certification issued by one Frank Zolin, Director of the State of Californias Department of Motor Vehicles, were already introduced and admitted into evidence as Defense Exhibits 66-J, 66-K, 66-H, 66-I and 66-L, respectively.[44]

It need not be overemphasized that the foregoing factual circumstances only serves to underscore the immutable fact that the depositions proposed to be taken from the five U.S. based witnesses would be merely corroborative or cumulative in nature and in denying respondents motion to take them, the trial court was but exercising

its judgment on what it perceived to be a superfluous exercise on the belief that the introduction thereof will not reasonably add to the persuasiveness of the evidence already on record. In this regard, it bears stressing that under Section 6, Rule 113 of the Revised Rules of Court:

SEC. 6. Power of the court to stop further evidence. - The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive.But this power should be exercised with caution. (emphasis and italics supplied.)

Needless to state, the trial court can not be faulted with lack of caution in denying respondents motion considering that under the prevailing facts of the case, respondent had more than ample opportunity to adduce evidence in his defense. Certainly, a party can not feign denial of due process where he had the opportunity to present his side.[45] It must be borne in mind in this regard that due process is not a monopoly of the defense. Indeed, the State is entitled to due process as much as the accused.[46] Furthermore, while a litigation is not a game of technicalities, it is a truism that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.[47]

The use of discovery procedures is directed to the sound discretion of the trial judge.[48] The deposition taking can not be based nor can it be denied on flimsy reasons.[49] Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. There is no indication in this case that in denying the motion of respondent-accused, the trial judge acted in a biased, arbitrary, capricious or oppressive manner. Grave abuse of discretion x x x implies such capricious, and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act all in contemplation of law.[50]

Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess or jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the

purpose of annulling or modifying the proceeding. There must be a capricious, arbitrary and whimsical exercise of power for it to prosper.[51]

To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but generally refers to capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.

It has been held, however, that no grave abuse of discretion may be attributed to a court simply because of its alleged misappreciation of facts and evidence. A writ of certiorari may not be used to correct a lower tribunal's evaluation of the evidence and factual findings. In other words, it is not a remedy for mere errors of judgment, which are correctible by an appeal or a petition for review under Rule 45 of the Rules of Court.

In fine, certiorari will issue only to correct errors of jurisdiction, not errors of procedure or mistakes in the findings or conclusions of the lower court. As long as a court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than errors of judgment which are reviewable by timely appeal and not by special civil action for certiorari.[52]

Whether or not the respondent-accused has been given ample opportunity to prove his innocence and whether or not a further prolongation of proceedings would be dilatory is addressed, in the first instance, to the sound discretion of the trial judge. If there has been no grave abuse of discretion, only after conviction may this Court examine such matters further. It is pointed out that the defense has already presented at least fifty-seven (57) witnesses and four hundred sixty-four (464) documentary exhibits, many of them of the exact nature as those to be produced or testified to by the proposed foreign deponents. Under the circumstances, We sustain the proposition that the trial judge commits no grave abuse of discretion if she decides that the evidence on the matter sought to be proved in

the United States could not possibly add anything substantial to the defense evidence involved. There is no showing or allegation that the American public officers and the bicycle store owner can identify respondent Hubert Webb as the very person mentioned in the public and private documents. Neither is it shown in this petition that they know, of their own personal knowledge, a person whom they can identify as the respondent-accused who was actually present in the United States and not in the Philippines on the specified dates.

WHEREFORE, in view of all the foregoing, the petition is hereby GRANTED. The Decision of the Court of Appeals dated February 6, 1998 in CA-G.R. SP No. 45399 is hereby REVERSED and SET ASIDE. The Regional Trial Court of Paraaque City is ordered to proceed posthaste in the trial of the main case and to render judgment therein accordingly.

SO ORDERED.

Kapunan, and Pardo, JJ., concur.Davide, Jr., C.J., see separate opinion.Puno, J., see concurring opinion.

6. Afulgencia v. Metrobank (5 February 2014)

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 185145               February 5, 2014

SPOUSES VICENTE AFULUGENCIA and LETICIA AFULUGENCIA, Petitioners, vs.METROPOLITAN BANK & TRUST CO. and EMMANUEL L. ORTEGA, Clerk of Court, Regional Trial Court and Ex-Officio Sheriff, Province of Bulacan, Respondents.

D E C I S I O N

DEL CASTILLO, J.:

Section 6,1 Rule 25 of the Rules of Court (Rules) provides that "a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal." The provision seeks to prevent fishing expeditions and needless delays. Its goal is to maintain order and facilitate the conduct of trial.

Assailed in this Petition for Review on Certiorari2 are the April 15, 2008 Decision3 of the Court of Appeals (CA) in CA-G.R. SP No. 99535 which dismissed petitioners' Petition for Certiorari for lack of merit and its October 2, 2008 Resolution4 denying petitioners' Motion for Reconsideration.5

Factual Antecedents

Petitioners, spouses Vicente and Leticia Afulugencia, filed a Complaint6 for nullification of mortgage, foreclosure, auction sale, certificate of sale and other documents, with damages, against respondents Metropolitan Bank & Trust Co. (Metrobank) and Emmanuel L. Ortega (Ortega) before the Regional Trial Court (RTC) of Malolos City, where it was docketed as Civil Case No. 336-M-2004 and assigned to Branch 7.

Metrobank is a domestic banking corporation existing under Philippine laws, while Ortega is the Clerk of Court and Ex-Officio Sheriff of the Malolos RTC.

After the filing of the parties’ pleadings and with the conclusion of pre-trial, petitioners filed a Motion for Issuance of Subpoena Duces Tecum Ad Testificandum7 to require Metrobank’s officers8 to appear and testify as the petitioners’ initial witnesses during the August 31, 2006 hearing for the presentation of their evidence-in-chief, and to bring the documents relative to their loan with Metrobank, as well as those covering the extrajudicial foreclosure and sale of petitioners’ 200-square meter land in Meycauayan, Bulacan covered by Transfer Certificate of Title No. 20411 (M). The Motion contained a notice of hearing written as follows:

NOTICE

The Branch Clerk of CourtRegional Trial CourtBranch 7, Malolos, Bulacan

Greetings:

Please submit the foregoing motion for the consideration and approval of the Hon. Court immediately upon receipt hereof.

(signed)Vicente C. Angeles9

Metrobank filed an Opposition10 arguing that for lack of a proper notice of hearing, the Motion must be denied; that being a litigated motion, the failure of petitioners to set a date and time for the hearing renders the Motion ineffective and pro forma; that pursuant to Sections 1 and 611 of Rule 25 of the Rules, Metrobank’s officers – who are considered adverse parties – may not be compelled to appear and testify in court for the petitioners since they were not initially served with written interrogatories; that petitioners have not shown the materiality and relevance of the documents sought to be produced in court; and that petitioners were merely fishing for evidence.

Petitioners submitted a Reply12 to Metrobank’s Opposition, stating that the lack of a proper notice of hearing was cured by the filing of Metrobank’s Opposition; that applying the principle of liberality, the defect may be ignored; that leave of court is not necessary for the taking of Metrobank’s officers’ depositions; that for their case, the issuance of a subpoena is not unreasonable and oppressive, but instead favorable to Metrobank, since it will present the testimony of these officers just the same during the presentation of its own evidence; that the documents sought to be produced are relevant and will prove whether petitioners have paid their obligations to Metrobank in full, and will settle the issue relative to the validity or invalidity of the foreclosure proceedings; and that the Rules do not prohibit a party from presenting the adverse party as its own witness.

Ruling of the Regional Trial Court

On October 19, 2006, the trial court issued an Order13 denying petitioners’ Motion for Issuance of Subpoena Duces Tecum Ad Testificandum, thus:

The motion lacks merit.

As pointed out by the defendant bank in its opposition, the motion under consideration is a mere scrap of paper by reason of its failure to comply with the requirements for a valid notice of hearing as specified in Sections 4 and 5 of Rule 15 of the Revised Rules of Court. Moreover, the defendant bank and its officers are adverse parties who cannot be summoned to testify unless written interrogatories are first served upon them, as provided in Sections 1 and 6, Rule 25 of the Revised Rules of Court.

In view of the foregoing, and for lack of merit, the motion under consideration is hereby DENIED.

SO ORDERED.14

Petitioners filed a Motion for Reconsideration15 pleading for leniency in the application of the Rules and claiming that the defective notice was cured by the filing of Metrobank’s Opposition, which they claim is tantamount to notice. They further argued that Metrobank’s officers – who are the subject of the subpoena – are not party-defendants, and thus do not comprise the adverse party; they are individuals separate and distinct from Metrobank, the defendant corporation being sued in the case.

In an Opposition16 to the Motion for Reconsideration, Metrobank insisted on the procedural defect of improper notice of hearing, arguing that the rule relative to motions and the requirement of a valid notice of hearing are mandatory and must be strictly observed. It added that the same rigid treatment must be accorded to Rule 25, in that none of its officers may be summoned to testify for petitioners unless written interrogatories are first served upon them. Finally, it said that since a corporation may act only through its officers and employees, they are to be considered as adverse parties in a case against the corporation itself.

In another Order17 dated April 17, 2007, the trial court denied petitioners’ Motion for Reconsideration. The trial court held, thus:

Even if the motion is given consideration by relaxing Sections 4 and 5, Rule 15 of the Rules of Court, no such laxity could be accorded to Sections 1 and 6 of Rule 25 of the Revised Rules of Court which require prior service of written interrogatories to adverse parties before any material and relevant facts may be elicited from them

more so if the party is a private corporation who could be represented by its officers as in this case. In other words, as the persons sought to be subpoenaed by the plaintiffs-movants are officers of the defendant bank, they are in effect the very persons who represent the interest of the latter and necessarily fall within the coverage of Sections 1 and 6, Rule 25 of the Revised Rules of Court.

In view of the foregoing, the motion for reconsideration is hereby denied.

SO ORDERED.18

Ruling of the Court of Appeals

Petitioners filed a Petition for Certiorari19 with the CA asserting this time that their Motion for Issuance of Subpoena Duces Tecum Ad Testificandum is not a litigated motion; it does not seek relief, but aims for the issuance of a mere process. For these reasons, the Motion need not be heard. They likewise insisted on liberality, and the disposition of the case on its merits and not on mere technicalities.20 They added that Rule 2121 of the Rules requires prior notice and hearing only with respect to the taking of depositions; since their Motion sought to require Metrobank’s officers to appear and testify in court and not to obtain their depositions, the requirement of notice and hearing may be dispensed with. Finally, petitioners claimed that the Rules – particularly Section 10,22Rule 132 – do not prohibit a party from presenting the adverse party as its own witness.

On April 15, 2008, the CA issued the questioned Decision, which contained the following decretal portion:

WHEREFORE, the petition is DISMISSED for lack of merit. The assailed orders dated October 19, 2006 and April 17, 2007 in Civil Case No. 336-M-2004 issued by the RTC, Branch 7, Malolos City, Bulacan, are AFFIRMED. Costs against petitioners.

SO ORDERED.23

The CA held that the trial court did not commit grave abuse of discretion in issuing the assailed Orders; petitioners’ Motion is a litigated motion, especially as it seeks to require the adverse party, Metrobank’s officers, to appear and testify in court as petitioners’ witnesses. It held that a proper notice of hearing, addressed to the

parties and specifying the date and time of the hearing, was required, consistent with Sections 4 and 5,24 Rule 15 of the Rules.

The CA held further that the trial court did not err in denying petitioners’ Motion to secure a subpoena duces tecum/ad testificandum, ratiocinating that Rule 25 is quite clear in providing that the consequence of a party’s failure to serve written interrogatories upon the opposing party is that the latter may not be compelled by the former to testify in court or to render a deposition pending appeal. By failing to serve written interrogatories upon Metrobank, petitioners foreclosed their right to present the bank’s officers as their witnesses.

The CA declared that the justification for the rule laid down in Section 6 is that by failing to seize the opportunity to inquire upon the facts through means available under the Rules, petitioners should not be allowed to later on burden Metrobank with court hearings or other processes. Thus, it held:

x x x Where a party unjustifiedly refuses to elicit facts material and relevant to his case by addressing written interrogatories to the adverse party to elicit those facts, the latter may not thereafter be compelled to testify thereon in court or give a deposition pending appeal. The justification for this is that the party in need of said facts having foregone the opportunity to inquire into the same from the other party through means available to him, he should not thereafter be permitted to unduly burden the latter with courtroom appearances or other cumbersome processes. The sanction adopted by the Rules is not one of compulsion in the sense that the party is being directly compelled to avail of the discovery mechanics, but one of negation by depriving him of evidentiary sources which would otherwise have been accessible to him.25

Petitioners filed their Motion for Reconsideration,26 which the CA denied in its assailed October 2, 2008 Resolution. Hence, the present Petition.

Issues

Petitioners now raise the following issues for resolution:

I

THE COURT OF APPEALS COMMITTED REVERSIBLE ERRORS IN REQUIRING NOTICE AND HEARING (SECS. 4 AND 5, RULE 15, RULES OF COURT) FOR A MERE MOTION FOR SUBPOENA OF RESPONDENT BANK’S OFFICERS WHEN SUCH REQUIREMENTS APPLY ONLY TO DEPOSITION UNDER SEC. 6, RULE 25, RULES OF COURT.

II

THE COURT OF APPEALS COMMITTED (REVERSIBLE) ERROR IN HOLDING THAT THE PETITIONERS MUST FIRST SERVE WRITTEN INTERROGATORIES TO RESPONDENT BANK’S OFFICERS BEFORE THEY CAN BE SUBPOENAED.27

Petitioners’ Arguments

Praying that the assailed CA dispositions be set aside and that the Court allow the issuance of the subpoena duces tecum/ad testificandum, petitioners assert that the questioned Motion is not a litigated motion, since it seeks not a relief, but the issuance of process. They insist that a motion which is subject to notice and hearing under Sections 4 and 5 of Rule 15 is an application for relief other than a pleading; since no relief is sought but just the process of subpoena, the hearing and notice requirements may be done away with. They cite the case of Adorio v. Hon. Bersamin,28 which held that –

Requests by a party for the issuance of subpoenas do not require notice to other parties to the action.1âwphi1 No violation of due process results by such lack of notice since the other parties would have ample opportunity to examine the witnesses and documents subpoenaed once they are presented in court.29

Petitioners add that the Rules should have been liberally construed in their favor, and that Metrobank’s filing of its Opposition be considered to have cured whatever defect the Motion suffered from.

Petitioners likewise persist in the view that Metrobank’s officers – the subject of the Motion – do not comprise the adverse party covered by the rule; they insist that these bank officers are mere employees of the bank who may be called to testify for them.

Respondents’ Arguments

Metrobank essentially argues in its Comment30 that the subject Motion for the issuance of a subpoena duces tecum/ad testificandum is a litigated motion, especially as it is directed toward its officers, whose testimony and documentary evidence would affect it as the adverse party in the civil case. Thus, the lack of a proper notice of hearing renders it useless and a mere scrap of paper. It adds that being its officers, the persons sought to be called to the stand are themselves adverse parties who may not be compelled to testify in the absence of prior written interrogatories; they are not ordinary witnesses whose presence in court may be required by petitioners at any time and for any reason.

Finally, Metrobank insists on the correctness of the CA Decision, adding that since petitioners failed up to this time to pay the witnesses’ fees and kilometrage as required by the Rules,31 the issuance of a subpoena should be denied.

Our Ruling

The Court denies the Petition.

On the procedural issue, it is quite clear that Metrobank was notified of the Motion for Issuance of Subpoena Duces Tecum Ad Testificandum; in fact, it filed a timely Opposition thereto. The technical defect of lack of notice of hearing was thus cured by the filing of the Opposition.32

Nonetheless, contrary to petitioners’ submission, the case of Adorio cannot apply squarely to this case. In Adorio, the request for subpoena duces tecum was sought against bank officials who were not parties to the criminal case for violation of Batas Pambansa Blg. 22. The situation is different here, as officers of the adverse party Metrobank are being compelled to testify as the calling party’s main witnesses; likewise, they are tasked to bring with them documents which shall comprise the petitioners’ principal evidence. This is not without significant consequences that affect the interests of the adverse party, as will be shown below.

As a rule, in civil cases, the procedure of calling the adverse party to the witness stand is not allowed, unless written interrogatories are first served upon the latter. This is embodied in Section 6, Rule 25 of the Rules, which provides –

Sec. 6. Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.

One of the purposes of the above rule is to prevent fishing expeditions and needless delays; it is there to maintain order and facilitate the conduct of trial. It will be presumed that a party who does not serve written interrogatories on the adverse party beforehand will most likely be unable to elicit facts useful to its case if it later opts to call the adverse party to the witness stand as its witness. Instead, the process could be treated as a fishing expedition or an attempt at delaying the proceedings; it produces no significant result that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony,33 compelling the adverse party to take the witness stand may result in the calling party damaging its own case. Otherwise stated, if a party cannot elicit facts or information useful to its case through the facility of written interrogatories or other mode of discovery, then the calling of the adverse party to the witness stand could only serve to weaken its own case as a result of the calling party’s being bound by the adverse party’s testimony, which may only be worthless and instead detrimental to the calling party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court may limit the inquiry to what is relevant, and thus prevent the calling party from straying or harassing the adverse party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or harassment; it likewise prevents the calling party from conducting a fishing expedition or bungling its own case. Using its own judgment and discretion, the court can hold its own in resolving a dispute, and need not bear witness to the parties perpetrating unfair court practices such as fishing for evidence, badgering, or altogether ruining their own cases. Ultimately, such unnecessary processes can only constitute a waste of the court’s precious time, if not pointless entertainment.

In the present case, petitioners seek to call Metrobank’s officers to the witness stand as their initial and main witnesses, and to present documents in Metrobank’s possession as part of their principal documentary evidence. This is improper. Petitioners may not be

allowed, at the incipient phase of the presentation of their evidence-in-chief at that, to present Metrobank’s officers – who are considered adverse parties as well, based on the principle that corporations act only through their officers and duly authorized agents34 – as their main witnesses; nor may they be allowed to gain access to Metrobank’s documentary evidence for the purpose of making it their own. This is tantamount to building their whole case from the evidence of their opponent. The burden of proof and evidence falls on petitioners, not on Metrobank; if petitioners cannot prove their claim using their own evidence, then the adverse party Metrobank may not be pressured to hang itself from its own defense.

It is true that under the Rules, a party may, for good cause shown and to prevent a failure of justice, be compelled to give testimony in court by the adverse party who has not served written interrogatories. But what petitioners seek goes against the very principles of justice and fair play; they would want that Metrobank provide the very evidence with which to prosecute and build their case from the start. This they may not be allowed to do.

Finally, the Court may not turn a blind eye to the possible consequences of such a move by petitioners. As one of their causes of action in their Complaint, petitioners claim that they were not furnished with specific documents relative to their loan agreement with Metrobank at the time they obtained the loan and while it was outstanding. If Metrobank were to willingly provide petitioners with these documents even before petitioners can present evidence to show that indeed they were never furnished the same, any inferences generated from this would certainly not be useful for Metrobank. One may be that by providing petitioners with these documents, Metrobank would be admitting that indeed, it did not furnish petitioners with these documents prior to the signing of the loan agreement, and while the loan was outstanding, in violation of the law.

With the view taken of the case, the Court finds it unnecessary to further address the other issues raised by the parties, which are irrelevant and would not materially alter the conclusions arrived at.

WHEREFORE, the Petition is DENIED. The assailed April 15, 2008 Decision and October 2, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 99535 are AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLOAssociate Justice

7. Disini v. Sandiganbayan

Republic of the PhilippinesSupreme Court

Manila 

FIRST DIVISION 

HERMINIO T. DISINI,   G.R. No. 175730Petitioner,    

      

- versus -   

Present:  

   

THE HONORABLE SANDIGANBAYAN, THEREPUBLIC OF THE PHILIPPINES, as represented by

  CORONA, C. J., Chairperson,CARPIO,*

VELASCO, Jr.,DEL CASTILLO, and

the OFFICE OF THE SOLICITOR GENERAL (OSG), and the PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG),

  PEREZ, JJ.   Promulgated:

Respondents.   July 5, 2010x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - x  

D E C I S I O N  

DEL CASTILLO, J.:

 

The simultaneous availment of judicial remedies from different fora for

exactly the same ultimate relief and involving the same issue

constitutes forum-shopping. It is a prohibited malpractice,

condemned for trifling with the courts and their processes.

 

The Case

 

The instant Petition for Certiorari and Prohibition[1] under Rule 65 of the

Rules of Court seeks to:

1.            Annul the December 18, 2006 Resolution of

the Sandiganbayan (respondent court), which denied

petitioners Motion to Lift Default Order and to Admit Answer,

and consequently allowed respondent Republic to present

evidence ex-parte in Civil Case No. 0013 entitled Republic of

the Philippines v. Herminio T. Disini, et al.; 

2.            Annul the orders or declarations made by

the Sandiganbayan in open court during the hearing of

December 8, 2006, which prevented petitioner from

commenting ad cautelam on the Republics Urgent

Manifestation and Motion (hereinafter the Urgent

Manifestation and Motion) to Present Evidence Ex-Parte;[2]

 

3.            Prohibit the Sandiganbayan from continuing with

the ex-parte proceedings and rendering a judgment by

default; 

4.            Secure injunctive relief to enjoin

the Sandiganbayan from conducting further proceedings in

Civil Case No. 0013 and from rendering judgment on the

basis of the ex-parte proceedings; and 

5.            Declare null and void all the proceedings conducted as

against petitioner because of lack of jurisdiction over his

person, violation of his Constitutional rights to due process and

fair play, and the arbitrary acts of respondent court which

effectively ousted it of jurisdiction to hear the case.[3]

 

In sum, petitioner assails the Sandiganbayans refusal to set aside

its Order of Default against petitioner, as well as its acts which allegedly

reveal its inclination to railroad the proceedings and render a precipitate

judgment by default against petitioner.[4]

 

Factual Antecedents

 

On July 23, 1987, the Republic (through the Presidential Commission on

Good Government [PCGG]) filed with the Sandiganbayan a civil complaint

for reconveyance, reversion, accounting, restitution, and damages against

petitioner Herminio T. Disini (Disini), spouses Ferdinand and Imelda Marcos

(Marcos spouses) and Rodolfo B. Jacob (Jacob).[5] The same was

docketed as Civil Case No. 0013 and assigned to the First Division of

the Sandiganbayan (respondent court). Summons for Disini was issued

on July 29, 1987.[6] Per Sheriffs Return dated September 4, 1987,[7] the

summons[8] was unserved on the ground that petitioner did not live at the

given address, which was No. 92 Kennedy St., Greenhills, San Juan, Metro

Manila. The occupants of said address were the Roman family.

 

On August 26, 1987,[9] the Complaint was amended[10] to include

Rafael A. Sison (Sison) as a party-defendant.[11]

 

The Amended Complaint alleged that Disini acted in unlawful

concert with his co-defendants in acquiring and accumulating ill-gotten

wealth through the misappropriation of public funds, plunder of the nations

wealth, extortion, embezzlement, and other acts of corruption.[12]

The Sandiganbayan issued summons on the Amended Complaint

on September 3, 1987.[13] On September 15, 1987,

the Sandiganbayan Deputy Sheriff proceeded to the same address, No. 92

Kennedy Street, Greenhills, San Juan, Metro Manila.Again, the summons

was returned unserved for the reason that the Roman family occupied the

said residence.[14]

 

In the meantime, petitioners co-defendants, Sison[15] and Jacob,[16] filed their

respective answers, while the Marcos spouses were declared in

default[17] for failure to file their responsive pleadings despite valid service of

summons.[18]

 

After the lapse of two years without any progress in the case, Jacob filed an

Omnibus Motion for the Sandiganbayan to either set the case for pre-trial or

to dismiss the same with respect to Jacob for failure to prosecute.[19] Jacob

argued that there was no excuse for the delay in prosecuting the case. He

reasoned that, if summons could not be served on his co-defendant Disini

within a reasonable time, the prosecution should have moved to exclude

Disini from the complaint so that the case could be disposed of one way or

another instead of being left pending indefinitely.

 

The Sandiganbayan denied Jacobs motion.[20] It held that the Republic had

not lacked in efforts to ascertain Disinis whereabouts; hence, there is no

basis to rule that it failed to prosecute the case. Nevertheless, it ordered the

Republic to furnish the court with the correct address of petitioner or to file a

motion to show the reasonability of expecting Disini to be summoned.

In response, the Republic filed a Manifestation that it is still in the process of

securing alias summonses for the unserved defendants and will take steps

to serve summons by publication.[21]

 

On October 11, 1990, the Republic moved to drop Jacob as party-

defendant considering that he will testify as a witness for the Republic in its

ill-gotten wealth cases both here and abroad.[22] It also sought several times

to suspend the pre-trial on various grounds such as the PCGGs vacillation

regarding the grant of immunity in favor of Jacob[23] and the Republics

admission that it still could not ascertain Disinis whereabouts for purposes

of service of summons. The Republic explained that it was still trying to

exhaust all efforts to make a personal or substituted service of summons

through the help of the Philippine consulate office in Austria, where Disini is

believed to be residing.[24]

 

On August 4, 1994, the Sandiganbayan resolved to grant the dismissal of

the complaint against Jacob with prejudice and ordered him dropped as

party-defendant.[25]

 

When it appeared that pre-trial could finally continue in 1995, the Republic

again moved for several resetting of pre-trial for reasons such as looking at

the possibility of granting immunity to petitioners other co-defendant, Sison,

and the unavailability of the solicitor assigned to the case.[26]

 

After displaying utmost liberality in the past as regards the postponement of

the pre-trial, the Sandiganbayan issued a strongly-worded Order

on January 17, 1997, on which date the Republic was still not ready to

submit Sisons affidavit for the consideration of the court. The Order reads:

 Over the year, the matter of the affidavit [of Sison] remains unresolved. In the end, this case is sought once more to be reset with no visible product for the effort. 

Under the circumstances, should no action be taken thereon with finality on or before March 14, 1997, the Court will assume that the government is not disposed to prosecute this matter and will dismiss the case.[27]

  

Heeding the Sandiganbayans warning, the Office of the Solicitor

General filed its Manifestation and Urgent Motion to Drop Rafael Sison as

Party-Defendant on March 14, 1997.[28]

 

A year later, on April 8, 1998, the Republic filed an Ex

Parte Motion for Leave to Serve Summons by Publication.[29] It stated that

resort to service by publication was needed because they could not

ascertain Disinis whereabouts despite diligent efforts to do so. While this

motion was awaiting resolution five months later, the Republic filed an

Urgent Ex Parte Motion for Issuance of Alias Summons.[30] It allegedly

received information that Disini had returned to the Philippines and could

be served with summons at No. 92 Kennedy Street, Greenhills, San Juan,

Metro Manila. Alias summons was issued but was returned unserved on

the ground that Disini did not occupy the said house, which belonged to the

Roman family.[31] Receiving information that Disini was often seen at No. 35

Buchanan Street, Greenhills, San Juan, Metro Manila, the sheriff

proceeded to the new address only to find that it belonged to petitioners

cousin, Jesus Disini.[32]

 

Failing to serve summons personally on Disini, the Republic filed

an Urgent Motion to Resolve Motion for Leave to Serve Summons by

Publication on October 3, 2001.[33] While awaiting the resolution of the

Urgent Motion, the Republic again received information that petitioner has

been regularly seen at the Wack Wack Golf and Country Club in

Mandaluyong City and at No. 57 Flamingo Street, Greenmeadows

Subdivision, Quezon City. Thus, the Republic sought again the issuance of

alias summons, without prejudice to the resolution of its previous Motion for

Leave for Issuance of Summons by Publication.

[34] The Sandiganbayan issued an alias summons for Disini, but it was

returned unserved.

 

On February 6, 2002, the Republic filed a Motion to Resolve (Ex

Parte Motion for Leave to Serve Summons by Publication).[35] The same

was granted[36] and on April 23, 2002, the summons and the Amended

Complaint were published in Peoples Tonight, with a copy sent by

registered mail to Disinis last known address, No. 92 Kennedy Street,

Greenhills, San Juan, Metro Manila.[37] By August 27, 2002, petitioner was

declared in default for failure to file his responsive pleading within 60 days

from the publication of the summons.[38]

 

Since three of the party-defendants (Ferdinand Marcos, Imelda

Marcos, and petitioner) had been declared in default, while one was

dropped to become state witness (Jacob), Sison remained as the sole

defendant who could participate in Civil Case No. 0013. Given that there

was a pending motion to drop Sison also as party-defendant, the Republic

asked the Sandiganbayan to resolve the said motion so that they could

proceed with the ex parte presentation of evidence.[39] The said motion was

submitted for resolution on September 20, 2002.[40]

 

On February 17, 2003, with the motion to drop Sison as party-

defendant still pending, the Republic asked the Sandiganbayan to hold in

abeyance the pre-trial until the said motion had been resolved.

[41] On February 27, 2003, the Sandiganbayanclerk of court sent notice of

the cancellation of the pre-trial set for March 4, 2003.[42]

 

The records of the Sandiganbayan became silent from the year 2003 to

2006, revealing an inaction that would only be broken by a foreign court that

imposed a deadline on the freeze orders of the Disini Swiss accounts. This

development began when petitioner Disinis wife and children filed a

petition[43] in a Swiss Federal Court to remove a previously issued freeze

order on their Swiss accounts. On August 18, 2006, the Swiss Federal

Court rendered a partial decision[44] ordering the counsel for the Republic of

the Philippines to submit a forfeiture order from a Philippine court with

regard to the assets of Liliana and Herminio Disini not later than December

30, 2006; otherwise, the Swiss Federal Court would revoke the freeze order

on the Disini Swiss accounts.[45]

This deadline apparently spurred the Republic (through the PCGG) to file

an Urgent Manifestation and Motion[46] with

the Sandiganbayan on November 30, 2006. The Republic prayed for the

resolution of its Urgent Motion to Resolve (its motion to drop Rafael Sison

as party-defendant).[47] Should the resolution of this pending motion be

favorable to the Republic, it likewise prayed for the setting of the ex

parte presentation of evidence at an early date.

 

On December 7, 2006, petitioner Disini filed a Motion to Lift Order of Default

and for Leave to File and Admit Attached Answer,[48] together with an

Answer to Amended Complaint with Compulsory Counterclaims.[49] He

maintained that he was unaware of the civil case pending against him

because he never received summons or other processes from the court,

nor any pleadings from the parties of the case. His only fault, he averred,

was that he was ignorant of the proceedings in the case because of the

absence of a proper notice. Petitioner asked the respondent court to look at

his meritorious defenses. He then invoked the liberality of the courts in lifting

default orders to give both parties every opportunity to defend their cases,

and pointed out that the proceedings, being in their pre-trial stage, would not

be delayed by petitioners participation therein.

Petitioners Answer contained affirmative defenses such as the respondent

courts failure to acquire jurisdiction over his person through service by

publication and the failure of the Amended Complaint to state a cause of

action against him.

 

With the two motions pending before it, the Sandiganbayan heard the

Republic on its Urgent Manifestation and Motion on December 8,

2006. Petitioner Disinis lawyers were present during the hearing but were

not allowed to participate therein because of the prevailing default order

against Disini. The Sandiganbayan issued the following Order at the end of

the said hearing:

 This morning, the Court heard the arguments of the counsel for [respondent] regarding the latters Urgent Manifestation and Motion dated November 29, 2006. The Court also gave the [respondent] a non-extendible period of three days counted from today within which to file its comment on the Motion to Lift Order of Default filed by [petitioner] Disini, and the latter is given a non-extendible period of three days from December 11, 2006 or until December 14, 2006, within which to file his reply to the comment of the [respondent], after which the incident shall be considered submitted for resolution without need of oral arguments. The Court will act on the [respondent]s Urgent Manifestation and Motion dated November 29, 2006 after the Court has resolved the Motion to Lift Order of Default. x x x x[50]

  

On December 11, 2006, the Republic filed its

Comment/Opposition[51] stating that it exhausted all efforts to ascertain the

whereabouts of petitioner Disini. Failing to do so, the Republic resorted to

service of summons by publication. This mode of service is allowed under

Sections 14 and 15 of Rule 14 considering that the forfeiture case is in

rem and the defendants address is unknown. The Republic explained that

it filed its Ex Parte Motion for Leave to Serve Summons by Publication

because it received information that petitioner had already gone

to Austria. Clearly then, Disini was no longer a resident of

the Philippines. The Republic reiterated that the service of summons by

publication is proper considering that what is involved is a forfeiture case, an

action  in rem, under Republic Act No. 1379, in relation to Executive Order

(EO) Nos. 1, 2, 14, and 14-A all issued by President Corazon C. Aquino.

 

As for petitioners allegation that the Republic was aware of Disinis address

as shown by the fact that summons were properly served at his correct

address[52] in two criminal cases pending before the same First Division of

the Sandiganbayan, the Republic pointed out that these criminal cases

were filed on June 30, 2004, while respondents Ex Parte Motion for Leave

to Serve Summons by Publication was filed on April 8, 1998. Hence, at the

time the Republic asked for service by publication, it was not yet aware of

petitioners correct address. Since petitioner failed to file his answer to a

validly served Amended Complaint, the motion to lift the order of default is

utterly lacking merit.

 

Petitioner Disini filed his Reply on December 14, 2006[53] basically

expounding on the arguments he stated in his Motion to Lift.

 

On December 15, 2006, the Sandiganbayan granted PCGGs motion to

drop Sison as party-defendant in Civil Case No. 0013,[54] leaving only the

defaulted defendants (i.e., the Marcos spouses and petitioner Disini) as

parties to the case.

 

Ruling of the Sandiganbayan (Assailed Resolution)

 

On December 18, 2006, the Sandiganbayan resolved to deny[55] petitioners

Motion to Lift Default Order.

 

The Sandiganbayan held that the Republic exerted diligence in

ascertaining petitioners whereabouts as evidenced by the two motions it

filed for the issuance of alias summons. The Sandiganbayan looked

favorably at the Republics efforts to personally serve the summons on

petitioner despite the pendency of its Ex Parte Motion for Leave to Serve

Summons by Publication. It held that the Republics determination to serve

summons at the places where the petitioner was last heard of to reside

belies the petitioners claim that the Republic had intended to mislead the

court into service by publication all along. The Sandiganbayan likewise

held that the rules for a valid service of summons by publication were

observed.

 

The Sandiganbayan did not find any indication that

the Republic knew petitioners actual residence when it sought leave to

serve summons by publication in 1998 and 2001.

 

As for the argument that publication is not proper because the

action is in personam,  the Sandiganbayan ruled that Civil Case No. 0013

is an action in rem  for which service by publication is proper. The case is in

rem because it involves the forfeiture of ill-gotten wealth based on EO No.

2,[56] EO No. 14[57] and No. 14-A[58] promulgated by former President

Corazon Aquino by virtue of her legislative authority. It cited the case

of Republic v. Sandiganbayan and Marcos[59] where the Court ruled that

forfeiture proceedings are civil actions in rem.

 

Given the validity of the service of summons, the respondent court

held that petitioners failure to file a responsive pleading within the allotted

period resulted in his default. The respondent court refused to lift the order

of default on the ground that there was no fraud, accident, mistake or

excusable negligence that would justify such an action.

 

Petitioner then filed an Extremely Urgent Motion for Reconsideration[60] and

an Extremely Urgent Manifestation and Motion[61] on December 19,

2006. Aside from asking for reconsideration, petitioner also prayed that the

republics ex partepresentation of evidence be held in abeyance until the

resolution of his motion for reconsideration.

 

Petitioners motions were set for hearing on December 20, 2006 but the

said hearing did not take place. Instead, the Sandiganbayan issued the

following orders on December 19 and 20, 2006 respectively:

 Considering the difficulty in obtaining a quorum for the purpose of hearing the Extremely Urgent Manifestation and Motion dated December 18, 2006 of [petitioner] Herminio T. Disini, the Court resolves to cancel the hearing on the abovesaid motion on December 20, 2006, and instead require the [respondent] to file its written comment on the above-said motion on or before December 22, 2006, after which the motion shall be deemed submitted for resolution.[62]

Considering the difficulty in obtaining a quorum for the purpose of hearing the Extremely Urgent Motion for Reconsideration dated December 19, 2006 of [petitioner] Herminio T. Disini which was filed at the close of office hours on December 19, 2006, the Court resolves to cancel the hearing on the above-said motion on

December 20, 2006, and instead require the [respondent] to file its written comment on the above-said motion within a non-extendible period of three (3) days from receipt thereof, after which the motion shall be deemed submitted for resolution, unless the parties or the Court will set the matter for hearing anew after the submission of the above comment.[63]

  

The Republics ex parte presentation of evidence held before

the Sandiganbayan Executive Clerk of Court began on December 20,

2006 as evidenced by the transcript.[64] While petitioner was not allowed to

participate in the said proceedings, he was notified thereof and his counsels

were present to observe the same.

 

On December 22, 2006, petitioner filed this Petition

for Certiorari. On January 2, 2007, he filed a Supplement to the Petition

for Certiorari and Prohibition[65] protesting the continuation of the ex

parte proceedings before the Sandiganbayan as a grave abuse of

discretion amounting to lack of jurisdiction. He also filed a Second

Supplemental Petition on January 5, 2007.[66]

 Proceedings before the Sandiganbayan during the pendency of the instant Petition for Certiorari and Prohibition

On August 7, 2007, the Sandiganbayan issued its Resolution[67] denying

petitioners Extremely Urgent Motion for Reconsideration for lack of merit.

 

The Republic presented 10 witnesses.[68] It filed its Formal Offer of Evidence

dated October 17, 2008, which offer was admitted in the Resolution

dated December 3, 2008.[69] On February 11, 2009, the Republic filed its

Memorandum.[70]

 

On July 7, 2009, despite the pendency of his Petition for Certiorari and

Prohibition with the Supreme Court, petitioner filed with

the Sandiganbayan a Second Motion to Lift the Order of

Default[71] dated August 27, 2002 the very same Order which is now at the

heart of the present petition.

 

On September 8, 2009, petitioner filed with the Sandiganbayan a Motion to

Expunge or Cross-Examine Plaintiffs Witnesses.[72] On September 15,

2009, he also filed a Motion to Expunge Evidence Presented Before the

Clerk of Court.[73]

 

On September 23, 2009, petitioner filed with this Court a Motion for Leave

to File Supplemental Memorandum,[74] which was denied in a Resolution

dated September 30, 2009.[75]

 

On October 15, 2009, petitioner filed with the Sandiganbayan a Motion to

Expunge Rolando Gapuds Deposition taken on October 18-20, 1995.

[76] On October 19, 2009, he filed a Motion to Expunge or Cross-Examine

Plaintiffs witnesses.[77]

On February 18, 2010, petitioner filed with the Sandiganbayan a

Supplement to the Second Motion to Lift the Order of Default dated August

27, 2002 with Motion to Take Judicial Notice.[78] On March 4, 2010, he filed

a Motion for Leave to Take Deposition.[79]

 

Issues

 

Petitioner raised the following issues for our consideration:

 

1.                     Whether the Sandiganbayan court gravely

abused its discretion in not lifting its default order against

petitioner Disini 

2.                     Whether the Sandiganbayan court gravely

abused its discretion when it allowed the Republic to present

its evidence ex-parte while petitioners Motion for

Reconsideration [of the stay of the default order] had not yet

been resolved.[80]

 

Our Ruling

 Issue of Validity of Service of Summons Mooted by Voluntary Appearance   

In his Petition, petitioner originally sought the nullification of the proceedings

before the Sandiganbayan on the theory of lack of jurisdiction over his

person, premised on the alleged impropriety in the service of summons.

 

However, petitioner subsequently filed several motions with

the Sandiganbayan which sought various affirmative reliefs from that

court, sans any qualification of the nature of its appearance and without

reserving or reiterating its previous objection on the ground of lack of

jurisdiction over the person. These motions are:

 

(a)                   Motion to Expunge Exhibits A, B, C, D, E, XX, YY,

ZZ, EE, and their Submarkings or Cross-Examine Plaintiffs

Witness,[81] which sought to expunge various affidavits of the

Republics witnesses;

 

(b)                 Motion to Expunge Evidence Presented Before the

Clerk of Court,[82] which prayed that all the evidence

presented before the clerk of court be stricken off the

records for being taken in violation of the Rules;

 

(c)                  Motion to Expunge Gapuds Deposition taken on

18-20 October 1995,[83] which sought to remove from the

records the deposition offered by the Republic; 

(d)                 Motion to Expunge Exhibits FFF and GGG,[84] which

sought to strike off the mentioned exhibits of respondents

and asked the Sandiganbayan to permit petitioner to cross-

examine witness Jesus Disini; 

(e)                   Motion for Consolidation,[85] which prayed that Civil

Case No. 0013 be consolidated with Criminal Case Nos.

28001 and 28001; and 

(f)                     Motion for Leave to Take Deposition based on

Section 1 of Rule 23 (Depositions Pending Action or De

Benne Esse).[86]

 

In regard to the last mentioned Motion for Leave to Take

Deposition[87] (which is the last pleading on record), it is important to note

that there are two instances when the defendant can take depositions

under Section 1 of Rule 23: (1) after the court has acquired jurisdiction over

the defendant or the property subject of the action; and (2) after an answer

has been served. Both instances presuppose that the court has already

acquired jurisdiction over the defendant. By seeking the relief contained in

this provision, petitioner is deemed to have voluntarily submitted himself to

the jurisdiction of the Sandiganbayan. Thus, petitioner may be held to have

waived his objections regarding the lack of jurisdiction over his person by

seeking affirmative relief through the said provision.

 

While petitioner bewailed the mode of service of summons on him and

questioned the Sandiganbayans jurisdiction over his person, he has

rendered his own arguments moot by his voluntary appearance or

submission to the jurisdiction of theSandiganbayan. Jurisprudence holds

that an objection based on lack of jurisdiction over the person is waived

when the defendant files a motion or pleading which seeks affirmative relief

other than the dismissal of the case.[88]

 Issue of Non-Lifting of Default Order Dismissed for Forum-shopping   

When petitioner filed this Petition on December 22, 2006 assailing

the Sandiganbayans December 18, 2006 Resolution, the latter was still the

subject of a pending Extremely Urgent Motion for Reconsideration filed by

petitioner with theSandiganbayan. The filing of the instant petition before

this Court while a motion for reconsideration was still pending before

the Sandiganbayan constitutes, strictly speaking, forum-shopping,[89] which

could have warranted the outright dismissal of the petition. However, in light

of the due process issues raised by petitioner and the very real possibility

that he had no other speedy remedy available to him, his Petition was given

due course.

 

Inexplicably, and in continuing disregard of the rules on forum-shopping and

judicial courtesy, petitioner raised again the same issue (validity of the

default order and the propriety of lifting said default order) in a Second

Motion to Lift the Order of Default dated August 27, 2002 which he filed with

the Sandiganbayan after the latter denied his Extremely Urgent Motion for

Reconsideration.

 

This Second Motion to Lift the Order of Default was filed on July 27, 2009,

admittedly during the pendency of the instant Petition. Both remedies seek

from different fora exactly the same ultimate relief (lifting of the default order

issued by theSandiganbayan) and raise the same issue (validity of the

default order and the propriety of lifting said default order). In availing

himself of these two remedies, petitioner has engaged in forum-shopping.

 

There is forum shopping when one party repetitively avails of several

judicial remedies in different courts, simultaneously or successively, all

substantially founded on the same transactions and the same essential

facts and circumstances, and all raising substantially the same issues either

pending in, or already resolved adversely, by some other court.[90] Forum

shopping is a prohibited malpractice and condemned as trifling with the

courts and their processes.[91] It is proscribed because it unnecessarily

burdens the courts with heavy caseloads, and unduly taxes the manpower

and financial resources of the judiciary.[92] It is inimical to the orderly

administration of justice as it creates the possibility of conflicting decisions

being rendered by two courts,[93] and opens the system to the possibility of

manipulation.[94]

In filing a Second Motion to Lift the Order of Default with

the Sandiganbayan while the instant Petition is pending with this Court,

petitioner has unfairly doubled his chances of securing the lifting of the

default order. This misdeed amounts to a wagering on the result of

[petitioners] twin devious strategies, and shows not only [his] lack of faith in

this Court in its evenhanded administration of law but also [his] expression

of disrespect if not ridicule for our judicial process and orderly procedure.[95]

 

The situation here is strikingly similar to that in People v. Sandiganbayan.

[96] In that case, the petitioner had filed with the Sandiganbayan a motion for

consolidation of a bribery case with a plunder

case. The Sandiganbayan refused, leading the petitioner to file a petition

for certiorari with this Court. While the said petition was pending with this

Court, the petitioner filed another motion for consolidation with

the Sandiganbayan, praying anew for the consolidation of the bribery case

with a plunder case. The motion raised the same issues and prayed for the

same remedy as the pending petition with this Court, namely, the

consolidation of the bribery case and the plunder case. The Court held that

such move clearly constitutes forum-shopping.

 

This is almost exactly what happened in the instant case. Petitioner had

filed with the Sandiganbayan a motion to lift default

order. The Sandiganbayan refused, leading petitioner to file a petition

for certiorari with this Court. While the said petition was pending with this

Court, petitioner filed another motion to lift default order with

the Sandiganbayan, praying anew for the lifting of the default order. Thus,

following the ruling in People v. Sandiganbayan, we rule that petitioners

actuations clearly constitute forum-shopping.

 

Because of the forum-shopping committed by petitioner, the Court cannot

grant the relief he prayed for.

Certiorari   is an

improper remedy

 

Petitioner imputes grave abuse of discretion on the Sandiganbayan for

allegedly railroading the proceedings in violation of his right to due process

and fair trial. More specifically, petitioner points out that when

the Sandiganbayan denied his Motion to Lift Order of Default (December

18, 2006), he immediately filed an Extremely Urgent Motion for

Reconsideration (December 19, 2006). However, before the latter could be

resolved, the Sandiganbayan allowed the ex-parte presentation of

evidence to proceed (December 20, 2006). This prompted petitioner to file

the instant Petition with this Court two days later (December 22, 2006).

 

While it may have been more convenient if the Sandiganbayan resolved

first the Extremely Urgent Motion for Reconsideration before allowing

the ex-parte presentation of evidence, we cannot say that the course taken

by the Sandiganbayan constitutes grave abuse of discretion. We cannot

infer from the Sandiganbayans deliberate speed that it was done to

prejudice petitioner. There was adequate justification for

the Sandiganbayans resolve to finish the twenty-year old forfeiture case

with dispatch.Aside from the length of time that Civil Case No. 0013 has

stagnated in the dockets, the Republics manifestation (that a resolution was

necessary by December 30, 2006 in order to maintain the Swiss Federal

Courts freeze order on petitioners Swiss accounts) is reason enough not to

further delay the case as a matter of public interest. Besides, it should be

remembered that when the Sandiganbayan received evidence ex-

parte on December 20, 2006, petitioner was still in default and his Motion to

Lift Default Order has already been denied. The ex-parte presentation of

evidence on December 20, 2006 was simply consistent with petitioners

default status as of that time.

 

Grave abuse of discretion refers to such capricious or whimsical exercise of

judgment as is equivalent to lack of jurisdiction. The abuse of discretion

must be patent and gross as to amount to an evasion of positive duty or a

virtual refusal to perform a duty enjoined by law, or to act at all in

contemplation of law, as where the power is exercised in an arbitrary and

despotic manner by reason of passion and hostility. The actions of

the Sandiganbayan were not thus tainted under the circumstances we

described above. Thus, we cannot accept petitioners contention that the

proceedings taken below must be nullified because of the alleged

railroading by the Sandiganbayan.

 

Moreover, Rule 65 petitions for certiorari are extraordinary remedies

available only when there is grave abuse of discretion amounting to lack of

jurisdiction and  the petitioner has no other plain, speedy, and adequate

remedy for correcting such abuse.[97]

 

By filing a Second Motion to Lift the Order of Default and the various

motions seeking the Sandiganbayans correction of the perceived errors

during the Republics ex parte presentation of evidence, petitioner has

revealed his belief that he had adequate remedies before

the Sandiganbayan. A resort to a Rule 65 petition is, under the premises,

improper.

 

WHEREFORE, the Petition for Certiorari is DISMISSED. Costs against

petitioner.

 SO ORDERED.

 

 MARIANO C. DEL CASTILLO

Associate Justice

8. People v. Bustamante, 697 SCRA 411

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 189836               June 5, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff -Appellee, vs.ROMEO BUSTAMANTE y ALIGANGA, Accused-Appellant.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

For our review is this appeal from the Decision1 dated July 31, 2009 of the Court of Appeals in CA-G.R. CR.-B.C. No. 03102, entitled People of the Philippines v. Romeo Bustamante y Aliganga, which affirmed the Judgment2dated November 28, 2007 of the Regional Trial Court (RTC) of Tuguegarao City, Branch 3 in Criminal Case No. 7406. The trial court found appellant Romeo Bustamante y Aliganga guilty beyond reasonable doubt of the crime of rape as defined and penalized under Article 335 of the Revised Penal Code, considering that the offense was committed before the effectivity on October 22, 1997 of Republic Act No. 8353 (the Anti-Rape Law of 1997) that reclassified and defined rape as a crime against persons under Articles 266-A to 266-D of the same Code.

The pertinent portion of the Information3 charging appellant with the crime of rape reads:

That on or about February 17, 1997, and sometime prior thereto, in the Municipality of Alcala, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused Romeo Bustamante y Aliganga, father of the complainant, AAA,4 with lewd design and by means of threat and intimidation did then and there wilfully, unlawfully and feloniously have sexual intercourse with his own daughter, the herein offended party, AAA for several times,

starting from the time that the offended party was only eleven (11) years of age, against her will.

Upon arraignment, appellant pleaded not guilty to the charge against him.5

During pre-trial, appellant made an admission with regard to the identity of the victim in this case.6 Trial on the merits thereafter commenced.

The facts of this case, as summed by the trial court and adopted by the Court of Appeals, are as follows:

AAA testified that she lived with his father, the appellant in this case, mother and younger siblings, 3 brothers and a sister, in x x x, Alcala, Cagayan. At about lunch time or thereafter on February 17, 1997, she was alone in the second floor in their house when the appellant arrived. Her younger brother Jayjun was playing outside while her mother went to clean their ginger garden. The appellant laid her down on the floor and removed her shorts and panty. He then removed his pants, went on top of her and inserted his penis into her vagina. Appellant removed his penis after he ejaculated and told her not to report what had happened. Appellant forced her and she was not able to resist because she was still young during that time. She reported the incident to her mother and the police.

On re-direct examination, AAA testified that she filed the case against the appellant so that the latter would no longer box and maltreat her and because he raped her. On re-cross, it was revealed that appellant was neither armed during the incident nor covered her mouth when he laid her down. She did not shout because she was afraid. Appellant threatened her before he raped her.

x x x x

Appellant testified that in the early morning on February 7, 1997, he went to Tuguegarao with his daughter, AAA. He went to Mrs. Lolit Casauay, his employer, and Sgt. Poli to tell them his problem regarding AAA and her cousin having sex. Sgt. Poli advised appellant to go to Alcala Police to have his problem entered in the blotter and to go back to him after. They stayed in Tuguegarao the whole day and went back to x x x, Alcala, Cagayan about 7:00 o’clock in the evening. When they were approaching their house, Purita Torrado called for AAA and told appellant that he was a traitor. Purita Torrado and brothers, Rogelio and Amador Torrado, then entered his house, mauled him and tied his hands. Thereafter, policemen arrived and brought him to the Municipal Hall of Alcala, Cagayan without informing him why. His daughter AAA charged him

of the heinous crime of rape because his wife and brothers-inlaw harbored ill feelings against him, blaming him to have spread the rumor that Rogelio Torrado was the father of the child of his own sister Purita Torrado. Before February 17, 1997, his daughter AAA admitted to him that she had sexual relations with her cousin Randy Torrado for which reason he went to Tuguegarao to help AAA file a complaint against said Randy Torrado. It was after they came from Tuguegarao that his daughter AAA charged him with rape.

On cross-examination, appellant testified that he did not report any barangay official that Randy Torrado sexually molested his daughter x x x , but went to a person Ernie Fiesta who was not a barangay official. He admittedly told his problem to Sgt. Poli who asked AAA questions but the same was not entered in the blotter of the Cagayan Police Provincial Office.

On re-direct, appellant further testified that it was his daughter AAA who told him that Randy Torrado molested her so he brought her to Tuguegarao the following day, February 17, 1997. He was not able to enter it in the blotter of Alcala police as directed by Sgt. Poli because when they arrived in Maraburab, Alcala from Tuguegarao, his brothers-inlaw mauled him. He did not file any charges against his brothers-in-law.

Police Inspector Carlos T. Poli testified as follows: He was then the Assistant Chief Investigator at the Cagayan Police Provincial Headquarters on February 17, 1997. Appellant, with his daughter AAA went to him. Appellant told him that his daughter was molested by a nephew of his wife but he could not recall the name. He advised appellant to have the incident reported to, and entered in the blotter of, the Alcala Police Station where the incident took place and to return for investigation. He talked to AAA who admitted that there was truth to the report that she was molested and that there was a second occasion. He did not enter the report in the blotter because they did not have a blotter so he advised appellant to have the case entered in the blotter of Alcala Police. The report was not recorded because appellant only sought his advice and that he would first talk to his wife as the suspect was her relative. Admittedly, he invited the wife of appellant to his office upon the request of her in-laws who pitied and considered the appellant as their son. He asked the wife if she could help but the latter could not do it because her brother and sister were interested to pursue the case.

The last witness for the defense was Lolita Casauay who testified, thus: she knew appellant who was the mechanic of her brother. On February 13, 1997, he met the appellant who asked her advice regarding his daughter who was sexually molested. She told the

appellant to go to the police to enter the incident in the blotter. The appellant went to Sgt. Poli for this purpose. On February 17, 1997, the appellant and AAA went to her house in Caggay, Tuguegarao. AAA voluntarily related to her that she was molested by her cousin Randy Torrado. In March 1997, she learned of the charge of rape against the appellant. When she saw the appellant in jail, she went to Maraburab, Alcala, Cagayan, and called for the wife and daughter of the appellant. She asked the wife why the appellant was incarcerated and the former felt guilty of what happened to the latter.7

At the conclusion of trial, the trial court convicted appellant of the crime of rape. The dispositive portion of the assailed November 28, 2007 Judgment of the trial court reads as follows:

WHEREFORE, the Court finds that the evidence on record has fully established with moral certainty the guilt of the accused beyond reasonable doubt of the felony of RAPE, defined and penalized under the provisions of Article 335, of the Revised Penal Code, as amended, and hereby sentences him:

1.) To suffer imprisonment of reclusion perpetua;

2.) To indemnify the private complainant AAA in the amount of :

a. P75,000.00 by way of civil indemnity;

b. P50,000.00 as moral damages; and,

c. P30,000.00 as exemplary damages.

3.) To pay the costs.8

Appellant elevated his case to the Court of Appeals in the hope of having a reversal of judgment; however, his appeal was denied in the assailed Decision dated July 31, 2009, the dispositive portion of which states:

WHEREFORE, premises considered, instant appeal is DENIED. Accordingly, the assailed Judgment, supra, of the court a quo is hereby AFFIRMED in toto.9

Hence, the appellant brought the present appeal before this Court wherein he merely adopted the Appellant’s Brief he submitted to the Court of Appeals in lieu of submitting a Supplemental Brief as permitted by this Court. Appellant assigned two errors for our consideration, to wit:

I

THE COURT A QUO ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY OF THE PRIVATE COMPLAINANT.

II

THE COURT A QUO ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF THE CRIME OF RAPE DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.10

In his appeal, appellant maintains that the accusation against him is baseless and untrue. He claims that, as evidenced by the victim’s own testimony, AAA filed a false complaint of rape against him mainly due to her ill feelings towards him brought about by his purported repeated physical maltreatment of the victim.

The appeal is without merit.

It appears that the crux of appellant’s appeal centers on the credibility of AAA’s testimony. Accordingly, appellant implores this Court to review the same and render a judgment reversing his conviction for the crime of rape.

It is settled in jurisprudence that in a prosecution for rape, the accused may be convicted solely on the basis of the testimony of the victim that is credible, convincing, and consistent with human nature and the normal course of things.11 Jurisprudence is likewise instructive that the factual findings of the trial court, especially on the credibility of the rape victim, are accorded great weight and respect and will not be disturbed on appeal.12

In the case at bar, both the trial court and the Court of Appeals found AAA to be a credible witness and her testimony worthy of full faith and credit. After a careful review of the records of this case, we find no reason to deviate from the findings of the lower courts.

Since the incident at issue happened prior to the enactment of Republic Act No. 8353, the trial court correctly applied Article 335 of the Revised Penal Code which provides:

Art. 335. When and how rape is committed. – Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

Therefore, according to the aforementioned provision, the elements of rape are (1) the offender had carnal knowledge of the victim; and (2) such act was accomplished through force and intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the victim is under 12 years of age.

We agree with the appellate court that the following portion of AAA’s testimony indicated the presence of the foregoing elements of the crime of rape in this case, to wit:

[PROS. SAGUCIO]

Q At about lunch time or thereafter on February 17, 1997, do you remember where were you?

A I was in our house, sir.

Q Where in particular in your house because according to you as your house has a second floor?

A At the second floor, sir.

Q At that time and day, do you have any companions in your house?

A None, sir.

Q When you were alone in your house that time and day, do you recall if any member of your family arrived?

A Yes sir, there was.

Q Who arrived?

A My father, sir.

Q Now, if your father who arrived on that time and day, can you recognize him?

A Yes, sir.

Q Will you please go down from the witness stand and point to him?

A That one sir. The witness is pointing to a person inside the courtroom who wears T-shirt and a coldoroy pants who gave his name as Romeo Bustamante when asked by the Court.

Q When the accused arrived, where did he proceed?

A He went upstairs, sir.

Q That means that upstairs that you were?

A Yes, sir.

Q When the accused went upstairs where you were, what happened, if any?

A He laid me down, sir.

Q When the accused laid you down in a bed or to the floor?

A On the floor, sir.

Q In the upper part of your house on the second floor, are there rooms there?

A None, sir.

Q Aside from you and your father in that precise time that he laid you down to the floor, were there other persons inside the house?

A None sir, we were only two.

Q When the accused laid you down to the floor, what did he do next, if any?

A He removed my short and my panty, sir.

Q At the time that the accused removed your short and panty, were you still in that lying position?

A Yes, sir.

x x x x

Q After the accused removed your short and your panty, what did he do next if any?

A He removed also his pants, sir.

Q And after the accused removed his pants, what did he do next, if any?

A He went on top of me, sir.

Q After he went on top of you, what happened next, if any?

A He inserted his penis into my vagina, sir.

Q How long did the penis of the accused stayed inside your vagina?

A When he ejaculates that’s the time he removed his penis, sir.

Q Did you not resist?

A He forced me so I was not able to resist, sir.

Q Why were you not able to resist, can you explain?

A Because he was strong and I was still young during that time, sir.

Q You said after the accused ejaculated he removed his penis, what did he do next?

A He told me not to report what had happened to me, sir.13

Clearly, the element of carnal knowledge is present in the foregoing narration. Furthermore, despite the absence of any evident force and intimidation, the same is still appreciated in the case at bar because it is doctrinally settled that the moral ascendancy of an accused over the victim renders it unnecessary to show physical force and intimidation since, in rape committed by a close kin, such as the victim’s father, stepfather, uncle, or the common-law spouse of her mother, moral influence or ascendancy takes the place of violence or intimidation.14

In his defense, appellant interposes denial while also ascribing ill motive on the part of the victim, his own biological daughter, for accusing him of rape. However, it is well-settled that denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no weight in law because denial cannot prevail over the positive, candid and categorical testimony of the complainant, and as between the positive declaration of the complainant and the negative statement of the appellant, the former deserves more credence.15 Likewise, the testimonies of the witnesses presented by appellant failed to buttress his defense of denial as they merely related to tangential matters which do not seriously affect the issue of AAA’s credibility.1âwphi1

With regard to the allegation that the accusation of rape was motivated by ill will and revenge, this Court is not surprised at this rather common excuse being raised by offenders in rape cases. We have consistently held that such alleged motives cannot prevail over the positive and credible testimonies of complainants who remained steadfast throughout the trial.16 Jurisprudence tells us that it is against human nature for a young girl to fabricate a story that would expose herself as well as her family to a lifetime of shame, especially when her charge could mean the death or lifetime imprisonment of her own father.17

Under the old rape law which is applicable in this case, the death penalty shall be imposed if the crime of rape is committed under certain enumerated circumstances which would designate the crime

as qualified rape. One such particular circumstance is when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. The minority of the victim and her relationship to the accused were duly proven by her birth certificate. However, due to the effectivity of Republic Act No. 9346, otherwise known as "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the trial court correctly imposed upon appellant the penalty of reclusion perpetua.

In view of the foregoing, we therefore affirm the conviction of appellant for qualified rape for which he is to suffer the penalty of reclusion perpetua without eligibility for parole in consonance with Article 335 of the Revised Penal Code and Republic Act No. 9346. The award of civil indemnity and exemplary damages is likewise upheld. However, in line with jurisprudence, the award of moral damages is increased from Fifty Thousand Pesos (P50,000.00) to Seventy-Five Thousand Pesos (P75,000.00).18

WHEREFORE, premises considered, the Decision dated July 31, 2009 of the Court of Appeals in CA-G.R. CR.-HC No. 03102 convicting appellant Romeo A. Bustamante for qualified rape for which he is to suffer the penalty of reclusion perpertua without eligibility for parole is hereby

AFFIRMED with the MODIFICATIONS that:

(1) The moral damages to be paid by appellant Romeo A. Bustamante is increased from Fifty Thousand Pesos (P50,000.00) to Seventy-Five Thousand Pesos (P75,000.00); and

(2) Appellant Romeo A. Bustamante is ordered to pay the private offended party interest on all damages awarded at the legal rate of six percent ( 6%) per annum from the date of finality of this judgment.

No pronouncement as to costs.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTROAssociate Justice

9. Metrobank v. Sandoval

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 169677               February 18, 2013

METROPOLITAN BANK AND TRUST COMPANY, as successor-in-interest of ASIAN BANK CORPORATION,Petitioner, vs.HON. EDILBERTO G. SANDOVAL, HON. FRANCISCO H. VILLARUZ, JR. and HON. RODOLFO A. PONFERRADA (in their capacities as Chairman and Members, respectively, of the Second Division of SANDIGANBAYAN) and the REPUBLIC OF THE PHILIPPINES, Respondents.

D E C I S I O N

BERSAMIN, J.:

The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues.1 But a separate trial may be denied if a party is thereby deprived of his right to be heard upon an issue dealt with and determined in the main trial.

Through this special civil action for certiorari, Metropolitan Bank and Trust Company (Metrobank) hereby seeks to set aside and nullify the resolutions dated June 25, 20042 and July 13, 20053 issued in Civil Case No. 0004, whereby the Sandiganbayan granted the motion for separate trial filed by the Republic of the Philippines (Republic), and upheld its jurisdiction over the Republic’s claim against the petitioner as the successor-in-interest of Asian Bank Corporation (Asian Bank).

Antecedents

On July 17, 1987, the Republic brought a complaint for reversion, reconveyance, restitution, accounting and damages in the Sandiganbayan against Andres V. Genito, Jr., Ferdinand E. Marcos, Imelda R. Marcos and other defendants. The action was obviously to recover allegedly ill-gotten wealth of the Marcoses, their nominees,

dummies and agents. Among the properties subject of the action were two parcels of commercial land located in Tandang Sora (Old Balara), Quezon City, covered by Transfer Certificate of Title (TCT) No. 2664234 and TCT No. 2665885 of the Registry of Deeds of Quezon City registered in the names of Spouses Andres V. Genito, Jr. and Ludivina L. Genito.

On February 5, 2001, the Republic moved for the amendment of the complaint in order to implead Asian Bank as an additional defendant. The Sandiganbayan granted the motion.6 It appears that Asian Bank claimed ownership of the two parcels of land as the registered owner by virtue of TCT No. N-201383 and TCT No. N-201384 issued in its name by the Registry of Deeds of Quezon City. Asian Bank was also in possession of the properties by virtue of the writ of possession issued by the Regional Trial Court (RTC) in Quezon City.7

When the Republic was about to terminate its presentation of evidence against the original defendants in Civil Case No. 0004, it moved to hold a separate trial against Asian Bank.8

Commenting on the motion, Asian Bank sought the deferment of any action on the motion until it was first given the opportunity to test and assail the testimonial and documentary evidence the Republic had already presented against the original defendants, and contended that it would be deprived of its day in court if a separate trial were to be held against it without having been sufficiently apprised about the evidence the Republic had adduced before it was brought in as an additional defendant.9

In its reply to Asian Bank’s comment, the Republic maintained that a separate trial for Asian Bank was proper because its cause of action against Asian Bank was entirely distinct and independent from its cause of action against the original defendants; and that the issue with respect to Asian Bank was whether Asian Bank had actual or constructive knowledge at the time of the issuance of the TCTs for the properties in its name that such properties were the subject of the complaint in Civil Case No. 0004, while the issue as to the original defendants was whether they had "committed the acts complained of as constituting illegal or unlawful accumulation of wealth which would, as a consequence, justify forfeiture of the said properties or the satisfaction from said properties of the judgement that may be rendered in favor of the Republic."10

Asian Bank’s rejoinder to the Republic’s reply asserted that the issue concerning its supposed actual or constructive knowledge of the

properties being the subject of the complaint in Civil Case No. 0004 was intimately related to the issue delving on the character of the properties as the ill-gotten wealth of the original defendants; that it thus had a right to confront the evidence presented by the Republic as to the character of the properties; and that the Sandiganbayan had no jurisdiction to decide Asian Bank’s ownership of the properties because the Sandiganbayan, being a special court with limited jurisdiction, could only determine the issue of whether or not the properties were illegally acquired by the original defendants.11

On June 25, 2004, the Sandiganbayan issued the first assailed resolution granting the Republic’s motion for separate trial, giving its reasons as follows:

x x x x

A cursory reading of the comment filed by defendant Asian Bank to plaintiff’s request for a separate trial would readily reveal that defendant is not actually opposing the conduct of a separate trial insofar as the said bank is concerned. What it seeks is the opportunity to confront the witnesses and whatever documentary exhibits that may have been earlier presented by plaintiff in the case before the Court grants a separate trial. This being the situation, we find no reason to deny the motion in light of plaintiff’s position that its claim as against Asian Bank is entirely separate and distinct from its claims as against the original defendants, albeit dealing with the same subject matter. In fact, as shown by the allegations of the Second Amended Complaint where Asian Bank was impleaded as a party defendant, the action against the latter is anchored on the claim that its acquisition of the subject properties was tainted with bad faith because of its actual or constructive knowledge that the said properties are subject of the present recovery suit at the time it acquired the certificates of title covering the said properties in its name. Consequently, whether or not it is ultimately established that the properties are ill-gotten wealth is of no actual significance to the incident pending consideration since the action against defendant bank is predicated not on the claim that it had knowledge of the ill-gotten wealth character of the properties in question but rather on whether or not it had knowledge, actual or constructive, of the fact that the properties it registered in its name are the subject of the instant recovery suit. Besides, plaintiff already admits that the evidence it had presented as against the original defendants would not apply to defendant bank for the reason that there is no allegation in the second amended complaint imputing responsibility or participation on the part of the said bank insofar as the issue of

accumulation of wealth by the original defendants are concerned. Thus, there appears no basis for defendant bank’s apprehension that it would be deprived of its right to due process if its not given the opportunity to cross-examine the witnesses presented prior to its inclusion as party defendant in the case. To reiterate, the only issue insofar as defendant bank is concerned is whether there is evidence to show that it acquired the titles to the sequestered properties in bad faith.

Neither are we inclined to sustain defendant’s bank argument that the Court cannot grant a separate trial in this case because it has no jurisdiction over the claim that defendant bank acquired the properties in bad faith. Indeed, the issue of defendant bank’s acquisition of the properties in bad faith is merely incidental to the main action which is for reversion, reconveyance, restitution, accounting and damages. It is axiomatic that jurisdiction over the subject matter of a case is conferred by law and is determined by the allegations in the complaint and the character of the relief sought, irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein (Russell v. Vestil, 304 SCRA 738; Saura v. Saura, Jr., 313 SCRA 465).12

Asian Bank moved for the reconsideration of the resolution, but the Sandiganbayan denied its motion through the second assailed resolution issued on July 13, 2005.13

Hence, Metrobank commenced this special civil action for certiorari as the successor-in-interest of Asian Bank and transferee of the properties.14

Issues

Metrobank contends that the Sandiganbayan committed grave abuse of discretion in ruling that: (1) the Republic was entitled to a separate trial against Asian Bank; (2) the only issue as regards Asian Bank was whether there was evidence that Asian Bank acquired the properties in bad faith; and

(3) the Sandiganbayan had jurisdiction over the issue of Asian Bank’s alleged bad faith in acquiring the properties.15

Anent the first issue, Metrobank states that the holding of a separate trial would deny it due process, because Asian Bank was entitled to contest the evidence of the Republic against the original defendants

prior to Asian Bank’s inclusion as an additional defendant; that Asian Bank (Metrobank) would be deprived of its day in court if a separate trial was held against it, considering that the Republic had already presented such evidence prior to its being impleaded as an additional defendant; that such evidence would be hearsay unless Asian Bank (Metrobank) was afforded the opportunity to test and to object to the admissibility of the evidence; that because Asian Bank disputed the allegedly ill-gotten character of the properties and denied any involvement in their allegedly unlawful acquisition or any connivance with the original defendants in their acquisition, Asian Bank should be given the opportunity to refute the Republic’s adverse evidence on the allegedly illgotten nature of the properties.16

With respect to the second issue, Metrobank submits thuswise:

8.02 x x x the Honorable Sandiganbayan failed to consider that Respondent Republic of the Philippines’ claim for the recovery of the subject properties from Asian Bank Corporation is anchored mainly on its allegations that: a) the subject properties constitute ill-gotten wealth of the other defendants in the instant civil case; and, b) Asian Bank Corporation acquired the subject properties in bad faith and with due notice of the pendency of the ill-gotten wealth case. In other words, the determination of the character of the subject properties as "ill-gotten wealth" is equally important and relevant for Asian Bank Corporation as it is for the other defendants considering that the issue of its alleged acquisition in bad faith of the subject properties is premised on Respondent Republic of the Philippines’ claim that the subject properties form part of the ill-gotten wealth of the late President Marcos and his cronies. Such being the case, Asian Bank Corporation is entitled as a matter of right to contest whatever evidence was presented by Respondent Republic of the Philippines on these two (2) issues, specifically the character and nature of the subject properties.

8.03 It must be stressed that the discretion of the court to order a separate trial of such issues should only be exercised where the issue ordered to be separately tried is so independent of the other issues that its trial will in no way involve the trial of the issues to be thereafter tried and where the determination of that issues will satisfactorily and with practical certainty dispose of the case, if decided for defendant. Considering that the issue on Asian Bank Corporation’s alleged acquisition in bad faith of the subject properties is intimately related to the issue on the character and nature of the subject properties as ill-gotten wealth of the other defendants in the

instant civil case, there is absolutely no legal or factual basis for the holding of a separate trial against Asian Bank Corporation.17

As to the third issue, Metrobank posits that Asian Bank acquired the properties long after they had been acquired by the original defendants supposedly through unlawful means; that the Republic admitted that the evidence adduced against the original defendants would not apply to Asian Bank because the amended complaint in Civil Case No. 0004 did not impute any responsibility to Asian Bank for the accumulation of wealth by the original defendants, or did not allege that Asian Bank had participated in such accumulation of wealth; that there was also no allegation or proof that Asian Bank had been a business associate, dummy, nominee or agent of the Marcoses; that the inclusion of Asian Bank was not warranted under the law; that Asian Bank was a transferee in good faith and for valuable consideration; that the Sandiganbayan had no jurisdiction over civil cases against innocent purchasers for value like Asian Bank that had no notice of the allegedly ill-gotten nature of the properties; and that considering the admission of the Republic that the issue on the accumulation of wealth by the original defendants did not at all concern Asian Bank, it follows that the Sandiganbayan had no jurisdiction to pass judgment on the validity of Asian Bank’s ownership of the properties.18

In contrast, the Republic insists that the Rules of Court allowed separate trials if the issues or claims against several defendants were entirely distinct and separate, notwithstanding that the main claim against the original defendants and the issue against Asian Bank involved the same properties; that the allegations in the case against Spouses Genito and the other original defendants pertained to the Republic’s claim that the properties listed in Annex A of the original complaint constituted ill-gotten wealth, resulting in the probable forfeiture of the listed properties should the Republic establish in the end that such original defendants had illegally or unlawfully acquired such properties; that although the Republic conceded that neither Asian Bank nor Metrobank had any participation whatsoever in the commission of the illegal or unlawful acts, the only issue relevant to Metrobank being whether it had knowledge that the properties had been in custodia legis at the time of its acquisition of them to determine its allegation of being an innocent purchaser for valuable consideration; that because the properties were situated in the heart of Quezon City, whose land records had been destroyed by fire in 1998, resulting in the rampant proliferation of fake land titles, Asian Bank should have acted with extra caution in ascertaining the validity of the mortgagor’s

certificates of title; and that the series of transactions involving the properties was made under dubious circumstances.19

The Republic posits that the Sandiganbayan had exclusive original jurisdiction over all cases involving the recovery of ill-gotten wealth pursuant to Executive Orders No. 1, No. 2, No. 14 and No. 14-A issued in 1986, laws encompassing the recovery of sequestered properties disposed of by the original defendants while such properties remained in custodia legis and pending the final resolution of the suit; and that the properties pertaining to Spouses Genito were among the properties placed under the writs of sequestration issued by the Presidential Commission on Good Government (PCGG), thereby effectively putting such properties in custodia legis and rendering them beyond disposition except upon the prior approval of the Sandiganbayan.20

Ruling

The petition for certiorari  is partly meritorious.

The Sandiganbayan gravely abused its discretion in granting the Republic’s motion for separate trial, but was correct in upholding its jurisdiction over the Republic’s claim against Asian Bank (Metrobank).

First and Second Issues:Separate Trials are Improper

The first and second issues, being interrelated, are jointly discussed and resolved.

The rule on separate trials in civil actions is found in Section 2, Rule 31 of the Rules of Court, which reads:

Section 2. Separate trials. – The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues.

The text of the rule grants to the trial court the discretion to determine if a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues should

be held, provided that the exercise of such discretion is in furtherance of convenience or to avoid prejudice to any party.

The rule is almost identical with Rule 42(b) of the United States Federal Rules of Civil Procedure (Federal Rules), a provision that governs separate trials in the United States Federal Courts (US Federal Courts), viz:

Rule 42. Consolidation; Separate Trials.

x x x x

(b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues, always preserving the inviolate right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.

The US Federal Courts have applied Rule 42(b) by using several principles and parameters whose application in this jurisdiction may be warranted because our rule on separate trials has been patterned after the original version of Rule 42(b).21 There is no obstacle to adopting such principles and parameters as guides in the application of our own rule on separate trials. This is because, generally speaking, the Court has randomly accepted the practices in the US Courts in the elucidation and application of our own rules of procedure that have themselves originated from or been inspired by the practice and procedure in the Federal Courts and the various US State Courts.

In Bowers v. Navistar International Transport Corporation,22 we find the following explanation made by the US District Court for the Southern District of New York on the objectives of having separate trials, to wit:

The aim and purpose of the Rule is aptly summarized in C. Wright and A Miller’s Federal Practice and Procedure:

The provision for separate trials in Rule 42 (b)  is intended to further convenience, avoid delay and prejudice, and serve the ends of justice. It is the interest of efficient judicial administration that is to be

controlling rather than the wishes of the parties. The piecemeal trial of separate issues in a single suit is not to be the usual course. It should be resorted to only in the exercise of informed discretion when the court believes that separation will achieve the purposes of the rule.

x x x x

As explained recently by the Second Circuit in United v. Alcan Aluminum Corp., Nos. 92-6158, 6160 1993 WL 100100, 1 (2d Cir., April 6, 1993), the purpose of separate trials under Rule 42 (b)  is to "isolate issues to be resolved, avoid lengthy and perhaps needless litigation . . . and to encourage settlement discussions and speed up remedial action." (citing, Amoco Oil v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989); Katsaros v. Cody, 744 F.2d 270, 278 (2d Cir.), cert. denied sub nom., 469 U.S. 1072, 105 S. Ct. 565, 83 L. Ed. 2d 506 (1984) (separate trials are proper to further convenience or to avoid prejudice); Ismail v. Cohen, 706 F. Supp. 243, 251 (S.D.N.Y. 1989) (quoting, United States v. International Business Machines Corp., 60 F.R.D. 654, 657 (S.D.N.Y. 1973) (separate trials under Rule 42 (b) are appropriate, although not mandatory, to "(1) avoid prejudice; (2) provide for convenience, or (3) expedite the proceedings and be economical.") Separate trials, however, remain the exception rather than the rule. See, e.g., Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 137 (5th Cir. 1976) xxx (separation of issues is not the usual course under Rule 42 (b)). The moving party bears the burden of establishing that separate trials are necessary to prevent prejudice or confusion and serve the ends of justice.Buscemi v. Pepsico, Inc., 736 F. Supp. 1267, 1271 (S.D.N.Y. 1990).

In Divine Restoration Apostolic Church v. Nationwide Mutual Insurance Co.,23 the US District Court for the Southern District of Texas, Houston Division specified that separate trials remained the exception, and emphasized that the moving party had the burden to establish the necessity for the separation of issues, viz:

Rule 42 (b) provides that a court has discretion to order separate trials of claims "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy." FED. R. CIV. P.42 (b). Thus, the two primary factors to be considered in determining whether to order separate trials are efficient judicial administration and potential prejudice. Separation of issues for separate trials is "not the usual course that should be followed," McDaniel v. Anheuser-Bush, Inc., 987 F. 2d 298, 304 (5th

Cir. 1993), and the burden is on the party seeking separate trials to prove that separation is necessary. 9A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE 2388 (3d ed. 2001).

x x x x

Still, in Corrigan v. Methodist Hospital,24 the US District Court for the Eastern District of Pennsylvania has cautioned against the unfettered granting of separate trials, thusly:

Courts order separate trials only when "clearly necessary." Wetherill v. University of Chicago, 565 F. Supp. 1553, 1566-67 (N.D. Ill. 1983) (citing 5 James William Moore, Moore’s Federal Practice at pp. 42-37 to 42-38 & n.4 (1982)). This is because a "single trial will generally lessen the delay, expense, and inconvenience to the parties and the courts." 5 James William Moore, Moore’s Federal Practice P. 42-03[1], at p. 42-43 (1994); Laitram Corp. v. Hewlett-Packard Co., 791 F. Supp. 113, 115 (E.D. La. 1992); Willemijn Houdstermaatschaapij BV. V. Apollo Computer, 707 F. Supp. 1429, 1433 (D. Del. 1989). The movant has the burden to show prejudice. Moore at p. 42-48.

x x x A Colorado District Court found three factors to weigh in determining whether to order separate trials for separate defendants. These are 1) whether separate trials would further the convenience of the parties; 2) whether separate trials would promote judicial economy; and 3) whether separate trials would avoid substantial prejudice to the parties.

Tri-R Sys. V. Friedman & Son, 94 F.R.D. 726, 727 (D. Colo. 1982).

In Miller v. American Bonding Company,25 the US Supreme Court has delimited the holding of separate trials to only the exceptional instances where there were special and persuasive reasons for departing from the general practice of trying all issues in a case at only one time, stating:

In actions at law, the general practice is to try all the issues in a case at one time; and it is only in exceptional instances where there are special and persuasive reasons for departing from this practice that distinct causes of action asserted in the same case may be made the subjects of separate trials. Whether this reasonably may be done in any particular instance rests largely in the court’s discretion.

Further, Corpus Juris Secundum26 makes clear that neither party had an absolute right to have a separate trial of an issue; hence, the motion to that effect should be allowed only to avoid prejudice, further convenience, promote justice, and give a fair trial to all parties, to wit:

Generally speaking, a lawsuit should not be tried piecemeal, or at least such a trial should be undertaken only with great caution and sparingly. There should be one full and comprehensive trial covering all disputed matters, and parties cannot, as of right, have a trial divided. It is the policy of the law to limit the number of trials as far as possible, and

separate trials are granted only in exceptional cases. Even under a statute permitting trials of separate issues, neither party has an absolute right to have a separate trial of an issue involved. The trial of all issues together is especially appropriate in an action at law wherein the issues are not complicated, x x x, or where the issues are basically the same x x x

x x x Separate trials of issues should be ordered where such separation will avoid prejudice, further convenience, promote justice, and give a fair trial to all parties.

Bearing in mind the foregoing principles and parameters defined by the relevant US case law, we conclude that the Sandiganbayan committed grave abuse of its discretion in ordering a separate trial as to Asian Bank (Metrobank) on the ground that the issue against Asian Bank was distinct and separate from that against the original defendants. Thereby, the Sandiganbayan veered away from the general rule of having all the issues in every case tried at one time, unreasonably shunting aside the dictum in Corrigan, supra, that a "single trial will generally lessen the delay, expense, and inconvenience to the parties and the courts."27

Exceptions to the general rule are permitted only when there are extraordinary grounds for conducting separate trials on different issues raised in the same case, or when separate trials of the issues will avoid prejudice, or when separate trials of the issues will further convenience, or when separate trials of the issues will promote justice, or when separate trials of the issues will give a fair trial to all parties. Otherwise, the general rule must apply.

As we see it, however, the justification of the Sandiganbayan for allowing the separate trial did not constitute a special or compelling

reason like any of the exceptions. To begin with, the issue relevant to Asian Bank was not complicated. In that context, the separate trial would not be in furtherance of convenience. And, secondly, the cause of action against Asian Bank was necessarily connected with the cause of action against the original defendants.1âwphi1 Should the Sandiganbayan resolve the issue against Spouses Genito in a separate trial on the basis of the evidence adduced against the original defendants, the properties would be thereby adjudged as ill-gotten and liable to forfeiture in favor of the Republic without Metrobank being given the opportunity to rebut or explain its side. The outcome would surely be prejudicial towards Metrobank.

The representation by the Republic in its comment to the petition of Metrobank, that the latter "merely seeks to be afforded the opportunity to confront the witnesses and documentary exhibits," and that it will "still be granted said right during the conduct of the separate trial, if proper grounds are presented therefor,"28 unfairly dismisses the objective possibility of leaving the opportunity to confront the witnesses and documentary exhibits to be given to Metrobank in the separate trial as already too late. The properties, though already registered in the name of Asian Bank, would be meanwhile declared liable to forfeiture in favor of the Republic, causing Metrobank to suffer the deprivation of its properties without due process of law. Only a joint trial with the original defendants could afford to Metrobank the equal and efficient opportunity to confront and to contest all the evidence bearing on its ownership of the properties. Hence, the disadvantages that a separate trial would cause to Metrobank would far outweigh any good or benefit that the Republic would seemingly stand to gain from the separation of trials.

We must safeguard Metrobank’s right to be heard in the defense of its registered ownership of the properties, for that is what our Constitution requires us to do. Hence, the grant by the Sandiganbayan of the Republic’s motion for separate trial, not being in furtherance of convenience or would not avoid prejudice to a party, and being even contrary to the Constitution, the law and jurisprudence, was arbitrary, and, therefore, a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Sandiganbayan.29

Third Issue:Sandiganbayan has exclusive original jurisdictionover the matter involving Metrobank

Presidential Decree No. 1606,30 as amended by Republic Act No. 797531 and Republic Act No. 8249,32 vests the Sandiganbayan with original exclusive jurisdiction over civil and criminal cases instituted pursuant to and in connection with Executive Orders No. 1, No. 2, No. 14 and No. 14-A, issued in 1986 by then President Corazon C. Aquino.

Executive Order No. 1 refers to cases of recovery and sequestration of ill-gotten wealth amassed by the Marcoses their relatives, subordinates, and close associates, directly or through nominees, by taking undue advantage of their public office and/or by using their powers, authority, influence, connections or relationships. Executive Order No. 2 states that the ill-gotten wealth includes assets and properties in the form of estates and real properties in the Philippines and abroad. Executive Orders No. 14 and No. 14-A pertain to the Sandiganbayan’s jurisdiction over criminal and civil cases relative to the ill-gotten wealth of the Marcoses and their cronies.

The amended complaint filed by the Republic to implead Asian Bank prays for reversion, reconveyance, reconstitution, accounting and damages. In other words, the Republic would recover ill-gotten wealth, by virtue of which the properties in question came under sequestration and are now, for that reason, in custodia legis.33

Although the Republic has not imputed any responsibility to Asian Bank for the illegal accumulation of wealth by the original defendants, or has not averred that Asian Bank was a business associate, dummy, nominee, or agent of the Marcoses, the allegation in its amended complaint in Civil Case No. 0004 that Asian Bank acted with bad faith for ignoring the sequestration of the properties as ill-gotten wealth has made the cause of action against Asian Bank incidental or necessarily connected to the cause of action against the original defendants. Consequently, the Sandiganbayan has original exclusive jurisdiction over the claim against Asian Bank, for the Court has ruled in Presidential Commission on Good Government v. Sandiganbayan,34 that "the Sandiganbayan has original and exclusive jurisdiction not only over principal causes of action involving recovery of ill-gotten wealth, but also over all incidents arising from, incidental to, or related to such cases." The Court made a similar pronouncement sustaining the jurisdiction of the Sandiganbayan in Republic of the Philippines (PCGG) v. Sandiganbayan (First Division),35 to wit:

We cannot possibly sustain such a puerile stand. Peña  itself already dealt with the matter when it stated that under Section 2 of Executive

Order No. 14, all cases of the Commission regarding alleged illgotten properties of former President Marcos and his relatives, subordinates, cronies, nominees and so forth, whether civil or criminal, are

lodged within the exclusive and original jurisdiction of the Sandiganbayan, "and all incidents arising from, incidental to, or related to such cases necessarily fall likewise under the Sandiganbayan’s exclusive and original jurisdiction, subject to review on certiorari exclusively by the Supreme Court."

WHEREFORE, the Court PARTIALLY GRANTS the petition for certiorari.

Let the writ of certiorari  issue: (a) ANNULLING AND SETTING ASIDE the Resolution dated June 25, 2004 and the Resolution dated July 13, 2005 issued by the Sandiganbayan in Civil Case No. 0004 granting the motion for separate trial of the Republic of the Philippines as to Metropolitan Bank and Trust Company; and (b), DIRECTINGthe Sandiganbayan to hear Civil Case No. 0004 against Metropolitan Bank and Trust Company in the same trial conducted against the original defendants in Civil Case No. 0004.

The Court DECLARES that the Sandiganbayan has original exclusive jurisdiction over the amended complaint in Civil Case No. 0004 as against Asian Bank Corporation/Metropolitan Bank and Trust Company.

No pronouncements on costs of suit.

SO ORDERED.

LUCAS P. BERSAMINAssociate Justice

10. Republic v. Heirs of Enrique Oribello

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 199501               March 6, 2013

REPUBLIC OF THE PHILIPPINES, represented by the REGIONAL EXECUTIVE DIRECTOR, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, REGION III, Petitioner, vs.HEIRS OF ENRIQUE ORIBELLO, JR. and THE REGISTER OF DEEDS OF OLONGAPO CITY, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

This petition for review1 assails the 29 April 2011 Decision2 and 16 November 2011 Resolution3 of the Court of Appeals in CA-G.R. CV No. 90559. The Court of Appeals denied petitioner Republic of the Philippines' (peitioner) appeal of the Order of the Regional Trial Court, Olongapo City, Branch 72,4 which dismissed petitioner's action for reversion and cancellation of Original Certificate of Title (OCT) No. P-5004 in the name of Enrique Oribello, Jr. (Oribello ).

The Facts

The present controversy involves a parcel of land situated in Nagbaculao, Kalaklan, Olongapo City, which was once classified as forest land by the Bureau of Forest Development. The property was originally occupied by a certain Valentin Fernandez (Valentin) in 1968 by virtue of a Residential Permit issued by the same government office.

Upon Valentin’s death, his son, Odillon Fernandez (Odillon), continued to occupy the property, together with spouses Ruperto and Matilde Apog. Sometime in 1969, Odillon sold the property to a certain Mrs. Florentina Balcita who, later on, sold the same property to Oribello. Oribello filed a Miscellaneous Sales Application with the Department of Environment and Natural Resources (DENR), which denied the application since the land remained forest land.

On 20 February 1987, the subject property was declared open to disposition under the Public Land Act. Thus, Oribello filed another Miscellaneous Sales Application on 6 April 1987.

On 27 March 1990, the Director of Lands issued an Order for the issuance of a patent in favor of Oribello. On even date, Miscellaneous Sales Patent No. 12756 and OCT No. P-5004 were issued to Oribello.

Matilde Apog (Apog) and Aliseo San Juan (San Juan),5 claiming to be actual occupants of the property, protested with the DENR the issuance of the sales patent and OCT in favor of Oribello. They sought the annulment of the sales patent, arguing that Oribello and Land Inspector Dominador Laxa (Laxa) committed fraud and misrepresentation in the approval of the Miscellaneous Sales Application of Oribello. They alleged that Laxa submitted a false report to the Director of Lands, by stating that there were no other claimants to the property and that Oribello was the actual occupant thereof, when the contrary was true.

After investigation, the Regional Executive Director of the DENR found substantial evidence that fraud and misrepresentation were committed in the issuance of the sales patent in favor of Oribello, warranting a reversion suit.

On 25 March 1992, the Office of the Solicitor General, representing petitioner, instituted a complaint for reversion and cancellation of title before the Regional Trial Court of Olongapo City, docketed as Civil Case No. 225-0-92. The case was thereafter consolidated with Civil Case No. 233-0-91, a complaint for recovery of possession filed by Oribello against Apog and San Juan.

During the trial, petitioner marked numerous documentary evidence and presented several witnesses on various hearing dates.6

In an Order dated 20 December 1996, the trial court warned petitioner on the possible effect of its non-appearance on the next scheduled hearing, thus:

WHEREFORE, let the continuation of the reception of evidence for the Republic of the Philippines be reset to February 14, 21 and 28, 1997, all at 10:00 o’clock in the morning, as previously scheduled.

The Solicitor General is warned that should his designated lawyer or any of his assistants fail to appear on the dates above-stated, the Court will be constrained to consider the presentation of evidence for the Republic of the Philippines as terminated.

Atty. Dumpit, therefore, is advised that he bring his witnesses on said dates to testify for the defendants Matilde Apog and Eliseo San Juan should the Solicitor General fail to appear and present evidence.

x x x x

SO ORDERED.7 (Emphasis supplied)

On the hearing of 4 April 1997, Atty. Oscar Pascua, representing petitioner, presented a witness on the stand.For petitioner’s failure to appear on the hearing of 12 September 1997, the trial court issued an Order8 on even date holding as follows:

On July 25, 1997, this Court issued an Order, quoted as follows:

x x x x

On several occasions when these cases were set for trial, neither Atty. Barcelo nor Atty. Pascua appeared, constraining the Court to postpone the hearing. The actuations of both lawyers result to delay in the early termination of these cases which have been pending since 1992.

x x x x

WHEREFORE, the Republic of the Philippines is hereby deemed to have abandoned the case for the government.

Attorney Dumpit for the defendant Matilde Apog, et al., is hereby required to manifest in writing on whether or not he is adopting the evidence already presented by the Republic of the Philippines, and if so, to make his offer of evidence within 30 days from today. Atty. Leyco is given 10 days from receipt of a copy of his offer to file his comment or opposition. Let the reception of evidence, if there be any on any part of Enrique Oribello, be set on October 24, 1997 at 10:00 a.m. as previously scheduled. And in addition thereto on November 21, and December 5, 1997 also both at 10:00 a.m. To give way to the filing of these pleadings, cancel the hearing scheduled for October 3, 1997.

Upon receipt of proof from the Post Office by this Court which will show that Atty. Pascua has received a copy of the Order dated July 25, 1997, the Motion to hold him in contempt will be deemed submitted for resolution. Furnish Atty. Barcelo, the Solicitor General, the Executive Regional Director, DENR, R-III, Angeles City, and Atty. Oscar Pascua, a copy of this Order. Attys. Dumpit and Leyco are both notified in open court of this Order.

SO ORDERED.9

The trial of the consolidated cases continued and the reception of evidence of the private parties proceeded.

However, in its Order of 21 February 2005, the trial court dismissed the consolidated cases without prejudice for non-substitution of the deceased plaintiff (Oribello) and his counsel, to wit:

Considering that the plaintiff’s counsel is already dead, and the plaintiff is likewise dead already, there being no substitution of party-plaintiffs or any record showing the heirs or party in interest, these cases are dismissed without prejudice.10

Petitioner moved for reconsideration, contending that the Order applied exclusively to Civil Case No. 233-0-91 (for recovery of possession) and did not affect Civil Case No. 225-0-92 (for reversion of property). Petitioner prayed that it be allowed to present its evidence.

Acting favorably on the motion, the trial court allowed the continuation of the presentation of petitioner’s evidence in its Order dated 29 June 2005.11

Aggrieved, Oribello’s heirs filed a Manifestation and Motion, bringing to the attention of the trial court the previous 12 September 1997 Order declaring petitioner to have abandoned the reversion case. Oribello’s heirs pointed out that from the time petitioner received the Order in 1997, it did nothing to question the same, making the Order final.

In its Resolution of 12 July 2006, the trial court recalled its 29 June 2005 Order, and declared instead:

Finding merit in defendants’ Motion and Manifestation, the Order dated 29 June 2005 granting the Motion for Reconsideration filed by

the Solicitor General is recalled and the above-entitled case is DISMISSED.

SO RESOLVED.12

Petitioner appealed to the Court of Appeals.

The Ruling of the Court of Appeals

The Court of Appeals denied petitioner’s appeal. The Court of Appeals held "that the remedy of appeal is no longer available" to petitioner. The appellate court agreed with respondents that petitioner has lost its right to participate in the proceedings of Civil Case No. 225-0-92 when it failed to question the trial court’s 12 September 1997 Order, declaring it to have abandoned the case. As a consequence of petitioner’s inaction, such order inevitably became final.

Moreover, the Court of Appeals ruled that petitioner is barred by laches and estoppel for failing to challenge the 12 September 1997 Order after almost a decade from receipt thereof. The appellate court stated that "while the general rule is that an action to recover lands of public domain is imprescriptible, said right can be barred by laches or estoppel."

The Court of Appeals disposed of the case as follows:

WHEREFORE, the foregoing premises considered, the instant appeal is hereby DENIED for lack of merit.

SO ORDERED.13 (Emphasis in the original)

The Court of Appeals denied the motion for reconsideration.

The Issues

Petitioner anchors the present petition on the following grounds:

1. Interlocutory orders are not subject of appeal.

2. The consolidated cases, without any order of severance, cannot be subject of multiple appeals.

3. There can be no private ownership over an unclassified public forest.

The Ruling of the Court

Is the 12 September 1997 Order interlocutory?

Petitioner contends that the 12 September 1997 Order of the trial court, deeming it to have abandoned the case, is interlocutory in nature; thus, is not appealable.14 Respondents argue otherwise, maintaining that such Order is a dismissal of the complaint on the ground of failure to prosecute which is, under the Rules,15 considered an adjudication on the merits, and hence appealable.

We agree with petitioner.

A final order is defined as "one which disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court."16

Conversely, an interlocutory order "does not dispose of the case completely but leaves something to be decided upon"17 by the court. Its effects are merely provisional in character and substantial proceedings have to be further conducted by the court in order to finally resolve the issue or controversy.18

Based on the records, petitioner has presented testimonial evidence on various hearing dates and marked numerous documents during the trial of Civil Case No. 225-0-92. Such acts do not manifest lack of interest to prosecute. Admittedly there was delay in this case. However, such delay is not the delay warranting dismissal of the complaint. To be a sufficient ground for dismissal, delay must not only be lengthy but also unnecessary resulting in the trifling of court processes.19 There is no proof that petitioner intended to delay the proceedings in this case, much less abuse judicial processes.

While petitioner failed to appear on the hearing of 12 September 1997, such failure does not constitute a ground for the dismissal of the reversion complaint for failure to prosecute. Petitioner’s non-appearance on that date should simply be construed as a waiver of the right to present additional evidence.20

We note that prior to the issuance of the 12 September 1997 Order, the trial court already warned petitioner on the likely adverse effect of its non-appearance on the next hearing date. If petitioner fails to attend the next scheduled hearing, the trial court would consider petitioner’s presentation of evidence as terminated. Termination of presentation of a party’s evidence does not equate to dismissal of the complaint for failure to prosecute. In fact, the trial court merely "deemed" petitioner to have abandoned the case without stating expressly and unequivocally that the complaint for reversion was dismissed. Had the trial court declared, in no uncertain terms, that the reversion suit was dismissed for failure to prosecute, there is no doubt that petitioner would have questioned such ruling, as it now did with respect to the trial court’s 29 June 2005 Order.

While it is within the trial court’s discretion to dismiss motu proprio the complaint on the ground of plaintiff’s failure to prosecute, it must be exercised with caution. Resort to such action must be determined according to the procedural history of each case, the situation at the time of the dismissal, and the diligence (or the lack thereof) of the plaintiff to proceed therein.21 As the Court held in Gomez v. Alcantara,22 if a lesser sanction would achieve the same result, then dismissal should not be resorted to.

Unless a party’s conduct is so indifferent, irresponsible, contumacious or slothful as to provide substantial grounds for dismissal, i.e., equivalent to default or non-appearance in the case, the courts should consider lesser sanctions which would still amount to achieving the desired end. In the absence of a pattern or scheme to delay the disposition of the case or of a wanton failure to observe the mandatory requirement of the rules on the part of the plaintiff, as in the case at bar, courts should decide to dispense with rather than wield their authority to dismiss.23(Emphasis supplied)

Notably, the trial court, even after its supposed "dismissal" of the case for petitioner’s abandonment, continued to recognize petitioner’s personality in its proceedings. In fact, in its Order of 16 January 1998, well beyond the "dismissal" on 12 September 1997, the trial court directed the service of such order to the Solicitor General, to wit:

x x x x

Should Atty. Dumpit fail to submit the said offer of evidence, it will be deemed a waiver on his part to do so. Atty. Leyco announced that he

is presenting evidence for and in behalf of the defendants Oribello in Civil Case No. 225-0-92 and as plaintiff in Civil Case No. 233-0-91.

To give way to the filing of said pleadings, cancel the hearing on February 20, 1998. Let the reception of evidence for the plaintiff Oribellos be set on March 20, 1998 at 9:00 a.m.. Attys. Leyco and Dumpit are notified in open court. Furnish a copy of this order the Solicitor General, DENR Office in Angeles City, as well as Atty. Pascua.24(Emphasis supplied)

In addition, the above Order states that Oribello’s counsel was presenting evidence on the two consolidated cases. This means that Oribello himself continued to recognize the pendency of the reversion suit (Civil Case No. 225-0-92), contrary to his subsequent allegation that such case has already been dismissed.

Are the consolidated cases subject to multiple appeals?

Section 1, Rule 31 of the Rules of Court provides:

SECTION 1. Consolidation. — When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated, and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Consolidation is a procedural device to aid the court in deciding how cases in its docket are to be tried so that the business of the court may be dispatched expeditiously and with economy while providing justice to the parties.25To promote this end, the rule allows the consolidation and a single trial of several cases in the court’s docket, or the consolidation of issues within those cases.26 The Court explained, thus:

In the context of legal procedure, the term "consolidation" is used in three different senses:

(1) Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasi-consolidation)

(2) Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. (actual consolidation)1âwphi1

(3) Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (consolidation for trial)27

In the present case, the complaint for reversion filed by petitioner (Civil Case No. 225-0-92) was consolidated with the complaint for recovery of possession filed by Oribello (Civil Case No. 223-0-91). While these two cases involve common questions of law and fact,28 each action retains its separate and distinct character. The reversion suit settles whether the subject land will be reverted to the State, while the recovery of possession case determines which private party has the better right of possession over the subject property. These cases, involving different issues and seeking different remedies, require the rendition and entry of separate judgments. The consolidation is merely for joint trial of the cases. Notably, the complaint for recovery of possession proceeded independently of the reversion case, and was disposed of accordingly by the trial court.

Since each action does not lose its distinct character, severance of one action from the other is not necessary to appeal a judgment already rendered in one action. There is no rule or law prohibiting the appeal of a judgment or part of a judgment in one case which is consolidated with other cases. Further, severance is within the sound discretion of the court for convenience or to avoid prejudice. It is not mandatory under the Rules of Court that the court sever one case from the other cases before a party can appeal an adverse ruling on such case.

Is the property unclassified public forest?

In its petition, petitioner contended that the subject property remains unclassified public forest, incapable of private appropriation. In its complaint, petitioner alleged that Oribello committed fraud and misrepresentation in acquiring the subject property.

This Court is not a trier of facts. Fraud is a question offact. 29 Whether there was fraud and misrepresentation in the issuance of the sales patent in favor of Oribello calls for a thorough evaluation of the parties' evidence. Thus, this Court will have to remand the reversion case to the trial court for further proceedings in order to resolve this issue and accordingly dispose of the case based on the parties' evidence on record.

WHEREFORE, the Court GRANTS the petition IN PART and SETS ASIDE the assailed Decision and Resolution of the Court of Appeals. The reversion case is remanded to the trial court for further proceedings. The trial court is ordered to resolve the reversion case with utmost dispatch.

SO ORDERED.

ANTONIO T. CARPIOAssociate Justice