038 GO VS PEOPLEG.R. No. 185527 July 18, 2012TOPIC: Modes of DiscoveryPONENTE: PERLAS-BERNABE, J.:

AUTHOR: JEROMENOTES: 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.

FACTS:

Petitioners were charged of the crime of other Deceits.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.

MeTC granted the motion to take oral deposition.

Petitioner sought for reconsideration, it was denied. Petitioner invoking rule 65 went to the RTC

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.

ISSUE: WON the order of the MeTC granting the deposition taking is proper?

HELD: NO

RATIO: 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."

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 WitnessesThe 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. ERRONEOUS RATIO: 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.CORRECT RATIO ACCORDING TO SC: 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. 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.

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. 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.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.

DISPOSITIVE: 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.CASE LAW/ DOCTRINE: where the petitioners are immediate relatives, who share a common interest in the property subject of the action, the fact that only one of the petitioners executed the verification or certification of forum shopping will not deter the court from proceeding with the action. DISSENTING/CONCURRING OPINION(S):

039 CONCEPCION CUENCO VDA. DE MANGUERRA and AUTHOR:

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.G.R. No. 152643 August 28, 2008TOPIC: RULE 23 on criminal casesPONENTE:

NOTES: (if applicable)

FACTS: PARTIES

o Petitioner – Concepcion Cuenco vda. De Manguerra owner of a parcel, known as Gorordo property resident of Cebu

o Respondents - RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ and ATTY. GAMALIEL D.B. BONJE 4 November 1999, Concepcion filed a criminal case of Estafa through falsification of public documents against

respondents in RTC Cebuo The respondents allegedly made it appear that Concepcion affixed her signature in a deed of Real Estate

Mortgage (REM) 10 September 1999, Concepcion, while on vacation in Manila, was unexpectedly confined at Makati Med due to

gastro-intestinal bleeding 24 November 1999, respondents filed a Motion for Suspension of the Proceedings in Criminal Case

o ground: prejudicial question; Civil Case for Annulment of said deed of REM should be resolved firsto RTC – GRANTED

As a result, Concepcion filed specciv certiorari before the CA to annul the RTC orders (this remained pending until the resolution of this case)

August 16, 2000, the counsel of Concepcion filed a motion to take the latter’s deposition.o Reason: Concepcion’s weak physical condition and old age, which limited her freedom of mobility.o RTC – GRANTED

Ratio: procedural technicalities should be brushed aside because of the urgency of the situation, since Concepcion was already of advanced age.

After several motions for change of venue of the deposition-taking, Concepcion’s deposition was finally taken on March 9, 2001 at her residence.

o Aggrieved, respondents filed specciv certiorari before the CAo CA – GRANTED

Hence, SC CONTENTIONS OF CONCEPCION

o (1) Failure to implead “People of the Philippines”, an indispensable party, is fatal to the case (side issue)o (2) Rule 23 is limited to civil cases. Hence, not applicable to criminal case of Estafa

ISSUE(S): WON Rule 23 applies in the case at barHELD: NO

DISPOSITIVE PORTION: 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.RATIO:

1. FAILURE TO PLEAD 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.

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.

2. APPLICABILITY OF RULE 23 – N/A in this case 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.

What applies in the case at bar?o 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.

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.

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. When the words are clear and categorical, there is no room for interpretation. There is only room for application.

040 Allied Agri-Business Development Co., Inc. v CA & Cherry Valley Farms LimitedGR 118438 December 4, 1998 TOPIC: Modes of Discovery, Rule 26PONENTE: BELLOSILLO, J.:

AUTHOR: NOTES: (if applicable)

FACTS:

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 RTC of Makati City for collection of sum of money alleging, among others that:

CHERRY VALLEY is a foreign corporation with principal office at Rothwell, Lincoln, England; For a period of less than 6 months, petitioner ALLIED purchased in 10 separate orders and received from

respondent CHERRY VALLEY several duck hatching eggs and ducklings which in value totaled 51,245.12; ALLIED did not pay the total purchase price despite repeated demands evidenced by a letter of Solicitor Braithwaite

of England in behalf of CHERRY VALLEY; instead of paying its obligation, ALLIED through its president wrote CHERRY VALLEY inviting the latter to be a

stockholder in a new corporation to be formed by ALLIED, which invitation was rejected by CHERRY VALLEY; and, ALLIED's president Ricardo Quintos expressly acknowledged through a letter the obligation of his corporation to

CHERRY VALLEY. ALLIED filed an answer denying the material allegations of the complaint and contended that:

PR CHERRY VALLEY lacked the legal capacity to sue; 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; the alleged amount of 51,245.12 did not represent the true and real obligation, if any, of petitioner; 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, private respondent had no cause of action against petitioner.

CHERRY VALLEY served on ALLIEDs counsel a Request for Admission:

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 OBJECTED 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.

CHERRY VALLEY REPLY: 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. – filed a Motion to resolve the objections of ALLIED to the request for admission.

TC: directed ALLIED to answer the request for admission within 10 days from receipt of the order, otherwise, the matters contained in the request would be deemed admitted. – MOR by ALLIED – dismissed! – gave an additional 5 days to answer.

ALLIED failed to submit a sworn answer to the request for admission within the additional period of 5 days granted by the trial court.

CHERRY VALLEY filed a motion for summary judgment alleging that there was already an implied admission on the matters requested for admission pursuant to Rule 26 of the Rules of Court.

TC: judgment against petitioner ALLIED. – CA affirmed the summary judgment by the TC.

ISSUE: Whether CA erred 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. – NO!

HELD/RATIO:

Petitioner is estopped from challenging or questioning the personality of a corporation after having acknowledged the same by entering into a contract with it.

o 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.

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.

o 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.

PURPOSE: 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.

o 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 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.

o Upon service of request for admission, the party served may do any of the following acts: he may admit each of the matters of which an admission is requested, in which case, he need not file

an answer; 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 10 days after service, or within such further time as the court may allow on motion and notice;

he may file a sworn statement denying specifically the matter of which an admission is requested; or, 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.

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 5 days from receipt of the directive; otherwise, the matters of which the admission was requested would be deemed admitted.

o Petitioner failed to submit the required answer within the period. The matters set forth in the request were therefore deemed admitted by petitioner.

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. 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.

The granting of the motion for summary judgment was correct.o It is a settled rule that summary judgment may be granted if the facts which stand admitted by reason of a party’s

failure to deny statements contained in a request for admission show that no material issue of fact exists. By its failure to answer the other party’s request for admission, petitioner has admitted all the material facts necessary for

judgment against itself.

CASE LAW/ DOCTRINE:

DISSENTING/CONCURRING OPINION(S):

041 PEOPLE vs. HUBERT WEBBG.R. NO. 132577; August 17, 1999 TOPIC: Rule 23 – Depositions; testimony by oral depositions; extraterritorial depositionsPONENTE: Ynares-Santiago

AUTHOR: NOTES: (if applicable)

FACTS: Webb is one of the accused in a criminal case for Rape with Homicide presently pending before RTC Paranaque. During the course of the proceedings in the trial court, Webb filed a Motion to Take Testimony by Oral Deposition praying that he be allowed to take the testimonies of the following:

1. Steven BucherActing Chief, Records Services BranchU.S. Department of JusticeWashington D.C., U.S.A.

2. Debora Farmer-same-

3. Jaci AlstonDept. of Motor VehiclesSacramento, California

4. Ami Smalley-same-

5. John PavlisinCalifornia

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. Webb further alleged that the taking of the oral

depositions of the said individuals are material and indispensable to establish his innocence [cited Sec. 4, Rule 24 – please read it nalang.]

Prosecution filed an opposition to the said motion averring that:1. Rule 24, Sec 4, contrary to the representation of respondent, has no application in criminal cases;2. Rule 119, Sec. 4 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 Sec. 5 of the Rule of Court on Criminal Procedure does not sanction the conditional examination fof

witnesses for the accused/defense outside Philippine jurisdiction. Trial court denied the motion of Webb based on the averments of prosecution. A motion for reconsideration was filed but was denied by the Trial Court.

Webb filed a petition for certiorari of the said order of denial with the Court of Appeals. The Court of Appeals found for Webb and authorized the taking of depositions of the abovementioned individuals. From this order, the People elevated its cause to the Supreme Court.

ISSUE(S): 1. WON the taking of depositions in Rule 23 is also applicable to criminal cases.2. WON the motion to take deposition should be granted.

HELD: 1. YES. The Rules of Court on Civil Procedure must be applied suppletorily to the Rules on Criminal Procedure.2. NO. There was no grave abuse of discretion since courts exercise judicial discretion in the use of discovery

procedures.RATIO:

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.

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.

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.

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.

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.

CASE LAW/ DOCTRINE:

DISSENTING/CONCURRING OPINION(S): (1) Davide, Jr.

Whether the taking of the depositions of witnesses may be allowed in criminal cases before the Philippine courts must be squarely resolved. I take an affirmative stand on the issue. For one, we have Sections 4 and 5 of Rule 119 of the Rules of Court which provides for the Application for examination of witness for accused before trial andExamination of defense witness; how made, respectively. These Sections refer to the conditional examinationof defense witnesses, which is one mode of perpetuating testimony available to the accused (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol.2, 1995 ed., 428). This deposition, being to perpetuate testimony, may be done before the commencement of the trial state, or anytime thereafter, as the need there for arises, but before the promulgation of judgment. Then, too, there is Section 7 of Rule 24 of the Rules of Court, which provides for Depositions pending appeal applies to criminal cases. (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol. 1, 1997 ed., 322). According to Justice Regalado the procedure in Section 7 is available in all actions, including criminal cases. Thus, the ruling in the case of Dasmarinas Garments, Inc. v. Court of Appeals, (225 SCRA 622, 634 [1993]), is applicable in the case at bar, to wit: x x x.Depositions may be taken at any time after the institution of any action, whenever necessary or convenient.There is no rule that limits depositions-taking only to the period of pre-trial or before it; no prohibition against the taking of deposition 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, 5440). And more importantly, deposition in criminal cases of a witness for the defense who is residing abroad must be allowed. Involved in a criminal case is not just the status or the property of the defendant, but the life or limb or the liberty of the accused. If, then, a deposition is allowed for a witness in a civil case, then it is with more reason that it be allowed in a criminal case; its denial would amount to a deprivation of due process and to the accuseds right to compulsory process to secure the attendance of witnesses in his favor, which are guaranteed by the Bill of Rights (Sections 1 and 14(2), Article III, Constitution).

As to how to take the testimony of a defense witness who is unable to come to testify in open court because he is a resident of a foreign country, I respectfully submit, however, that the rule on the matter under Rules on Civil Procedure may be applied suppletorily. Section 11 of Rule 23 of the 1997 Rules on Civil Procedure which provides for Persons before whom depositions may be taken in foreign countries. There are provisions of the Rule on Civil Procedure which have been made applicable in criminal cases. For one, as earlier mentioned, Section 7 of Rule 24 is applicable in criminal cases. See also the instances allowed in Caos v. Peralta, (115SCRA 843 [1982]); Naguiat V. IntermediateAppellate Court, (164 SCRA 505 [1988]); and Cojuangco v. Court of Appeals, (203 SCRA 619 [1991]). Also, an authority on criminal procedure asserts that in all matters not specifically touched on by Section 6 and the preceding Sections of Rule 119, Rule 24, Rules of Court,ante, applies in a suppletory character, since the taking of depositions under Rule 24 and conditional examination of defense witnesses under Sections 4 and 5, Rule 119, supra, are taken under the same circumstances and for the same purpose; that is, the preservation of a material witness testimony.(PAMARAN, THE 1985 RULES IN CRIMINAL PROCEDURE ANNOTATED, 1998 ed., 402). Finally, Section 6 of Rule 1 of the 1997 Rule of Civil Procedure (formerly Sec. 2, Rule I of the 1964 Rules of Court), expressly provides that the rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.

(2) Puno (more on pasipsip na to)I write this opinion to complement the learned opinion of our Chief Justice. Thus, this Court has given an expensive interpretation of the right of an accused to discovery procedure. In the first Webb case, we held: x x x. This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. x x x We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation to a potential accused. x x x Upon assumption of office, our present Chief Justice vowed to have a court that is pro-active, a stance that will surely promote rights more than authority. I am sure such a stance will quicken moves to liberalize further our rules on criminal procedure on the matter of discovery and deposition taking as to strengthen the constitutional right to due process of an accused.

DISPOSITIVE PORTION:

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.

042 Afulugencia v. MetrobankG.R. No. 185145, February 5, 2014 TOPIC: RULE 25PONENTE: DEL CASTILLO, J.:

AUTHOR: NOTES: (if applicable)

FACTS:1. Petitioners, spouses Vicente and Leticia Afulugencia, filed a Complaint for nullification of mortgage, foreclosure,

auction sale, certificate of sale and other documents, with damages, against respondents Metrobank and Ortega before the Regional Trial Court (RTC)

2. 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.

3. 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 Testificandum to require Metrobank’s officers 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

4. Metrobank filed an Opposition 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 6 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.

5. Petitioners submitted a Reply 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.

6. RTC - 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.

7. MR - 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.

8. 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, Rule 15 of the Rules.

9. 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.

ISSUE(S): Whether or not petitioners must first serve written interrogatories to respondent bank’s officers before they can be subpoenaed. HELD: (YES/NO, and a short explanation)

RATIO:1. Metrobank argues 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.

2. Petitioners’ argue that: the case of Adorio v. Hon. Bersamin, 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.

3. The Court denies the Petition 4. 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.

5. 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

6. 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.

7. 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.

8. Besides, since the calling party is deemed bound by the adverse party’s testimony, 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.

9. 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.

10. 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 agents – 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.

11. 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.

12. 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.

13. 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.

CASE LAW/ DOCTRINE: Section 6, 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.DISPOSITIVE: 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.

043 Disini v. SandiganbayanG.R. No. 175730 July 5, 2010TOPIC: Rule 23PONENTE: DEL CASTILLO, J.:

F: Republic (through PCGG) filed with the SB a civil complaint for reconveyance, reversion, accounting, restitution, and damages against petitioner Disini, Marcos spouses and Jacob. Summons for Disini 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. Republic exhausted all efforts to ascertain the whereabouts of petitioner Disini. Failing to do so, the Republic resorted to service of summons by publication. H: It has been a settled rule that by seeking affirmative relief, voluntary appearance or submission to the jurisdiction of the Sandiganbayan constitute waiver on the objection regarding lack of jurisdiction over the person of the petitioner. 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. (including filing a Motion for Leave to Take Deposition)Long facts.

NATURE: Petition for certiorariFACTS:1. 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).

2. July 29 - Summons for Disini was issued. a. Per Sheriffs Return dated Sept 4, the summons 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. b. The occupants of said address were the Roman family.

3. Aug 26 - the Complaint was amended to include Rafael A. Sison (Sison) as a party-defendant.

a. 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.

b. SB- issued summons on the Amended Complaint on Sept. 3, 1987.c. Sept. 15, 1987 - the SB 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.d. Marcos spouses were declared in default for not filing their responsive pleadings.

4. After a lapse of 2 yrs w/o any progress in the case, Jacob filed an Omnibus Motion for the SB to either set the case for pre-trial or to dismiss the same with respect to Jacob for failure to prosecute.

a. Jacob argued that there was no excuse for the delay in prosecuting the case. b. 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.

c. SB- denied the motion.i. 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.

5. 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.

6. Oct 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. 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 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.

7. Aug 4, 1994 – SB - resolved to grant the dismissal of the complaint against Jacob with prejudice and ordered him dropped as party-defendant.

8. 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.

9. 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. ~omitted.

10. April 8, 1998 (a year later) - the Republic filed an Ex Parte Motion for Leave to Serve Summons by Publication. a. It stated that resort to service by publication was needed because they could not ascertain Disinis whereabouts despite diligent

efforts to do so. b. While this motion was awaiting resolution five months later, the Republic filed an Urgent Ex Parte Motion for Issuance of Alias

Summons.i. 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. c. 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. 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.

11. 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.

a. 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. The Sandiganbayan issued an alias summons for Disini, but it was returned unserved.

12. Feb. 6, 2002 - the Republic filed a Motion to Resolve (Ex Parte Motion for Leave to Serve Summons by Publication). a. The same was granted 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. 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.

13. 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.

14. Feb 17, 2003 - with the motion to drop Sison as party-defendant still pending, the Republic asked the SB to hold in abeyance the pre-trial until the said motion had been resolved.

15. Feb 27 - the SB clerk of court sent notice of the cancellation of the pre-trial set for March 4.16. The records of the SB became silent from 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. 17. This development began when petitioner Disinis wife and children filed a petition in a Swiss Federal Court to remove a previously issued freeze

order on their Swiss accounts. 18. Aug 18, 2006 - the Swiss Federal Court rendered a partial decision 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 Dec 30; otherwise, the Swiss Federal Court would revoke the freeze order on the Disini Swiss accounts.

19. This deadline apparently spurred the Republic (through the PCGG) to file an Urgent Manifestation and Motion with the SB. 20. The Republic prayed for the resolution of its Urgent Motion to Resolve (its motion to drop Rafael Sison as party-defendant). 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.

21. Dec 7, 2006 - petitioner Disini filed a Motion to Lift Order of Default and for Leave to File and Admit Attached Answer, together with an Answer to Amended Complaint with Compulsory Counterclaims. 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.

22. 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.

23. 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.

24. 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.

25. Dec. 11, 2006, the Republic filed its Comment/Opposition 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.

26. SB – denied motion to lift default ordera. held that the Republic exerted diligence in ascertaining petitioners whereabouts as evidenced by the two motions it filed for the

issuance of alias summons. TheSandiganbayan 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 hadintended 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.

b. T 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.

c. 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, EO No. 14 and No. 14-A.

27. The Republics ex parte presentation of evidence held before the SB Executive Clerk of Court began on Dec 20, 2006. 28. While petitioner was not allowed to participate in the said proceedings, he was notified thereof and his counsels were present to observe it. 29. Dec 22, 2006 - petitioner filed this Petition for Certiorari. +supplementsProceedings before the Sandiganbayan during the pendency of the instant Petition for Certiorari and Prohibition30. Aug 7, 2007 - the Sandiganbayan issued its Resolution denying petitioners Extremely Urgent Motion for Reconsideration for lack of merit.31. The Republic presented 10 witnesses. 32. July 7, 2009 - despite the pendency of his Petition for Certiorari and Prohibition with the SC , petitioner filed with the SB a Second Motion to Lift

the Order of Default dated August 27, 2002 the very same Order which is now at the heart of the present petition.33. Sept. 8 - petitioner filed with the SB a Motion to Expunge or Cross-Examine Plaintiffs Witnesses. Sept 15- also filed a Motion to Expunge

Evidence Presented Before the Clerk of Court.34. Sept 23 - petitioner filed with this Court a Motion for Leave to File Supplemental Memorandum denied.

35. Oct 15 - petitioner filed with the SB a Motion to Expunge Rolando Gapuds Deposition taken on October 18-20, 1995. 36. Oct 19 - he filed a Motion to Expunge or Cross-Examine Plaintiffs witnesses.

37. Febr 18, 2010 - petitioner filed with the SB a Supplement to the Second Motion to Lift the Order of Default with Motion to Take Judicial Notice. 38. March 4 - he filed a Motion for Leave to Take Deposition. !ISSUE(S): WON by service of summons by publication, the court acquired jurisdiction over the person of the petitioner?HELD: Court acquired jurisdiction cause he sought affirmative relief voluntary appearance.RATIO:Issue of Validity of Service of Summons Mooted by Voluntary Appearance1. 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.2. 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.

a. 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, which sought to expunge various affidavits of the Republics witnesses; (b) Motion to Expunge Evidence Presented Before the Clerk of Court, 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, which sought to remove from the records the deposition offered by the Republic; (d) Motion to Expunge Exhibits FFF and GGG, 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, 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).

3. In regard to the last mentioned Motion for Leave to Take Deposition (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:

a. (1) after the court has acquired jurisdiction over the defendant or the property subject of the action; and b. (2) after an answer has been served. Both instances presuppose that the court has already acquired jurisdiction over the defendant.

4. 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.

5. 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 the Sandiganbayan. 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.

6. Issue of Non-Lifting of Default Order Dismissed for Forum-shopping 7. 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 the Sandiganbayan. 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, 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.

8. 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.

9. 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 the Sandiganbayan) 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.

10. 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. Forum shopping is a prohibited malpractice and condemned as trifling with the courts and their processes.It is proscribed because it unnecessarily burdens the courts with heavy caseloads, and unduly taxes the manpower and financial resources of the judiciary. It is inimical to the orderly administration of justice as it creates the possibility of conflicting decisions being rendered by two courts, and opens the system to the possibility of manipulation.

11. 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.

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

13. 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.

14. Because of the forum-shopping committed by petitioner, the Court cannot grant the relief he prayed for.

Certiorari is an improper remedy 15. 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).

16. 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 theSandiganbayan 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-partepresentation of evidence on December 20, 2006 was simply consistent with petitioners default status as of that time.

17. 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.

18. 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.

19. 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 partepresentation 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.

DISPOSITION: WHEREFORE, the Petition for Certiorari is DISMISSED. Costs against petitioner.DOCTRINE: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.

People v. bustamanteMetrobank v. sandoval

046 Republic v Heirs of Enrique OribelloGR 199501, March 6, 2013Rules 23-32Ponente: Carpio, J.FACTS:1. The present controversy involves a parcel of land in Olongapo City, which was once classified as forest land by the Bureau of

Forest Development. The property was originally occupied by Valentin Fernandez (Valentin) in 1968 by 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.

2. Oribello filed a Miscellaneous Sales Application with DENR which denied application since it remained forest land.3. The property was declared open to disposition under Public Land Act. Oribello filed Application.4. Director of Lands issued an Order for the issuance of a patent in favor of Oribello. 5. Matilde Apog (Apog) and Aliseo San Juan (San Juan), 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.

6. 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.

7. Office of the Solicitor General, representing petitioner, instituted a complaint for reversion and cancellation of title before the RTC. The case was thereafter consolidated with, a complaint for recovery of possession filed by Oribello against Apog and SanJuan.

8. In trial, petitioner marked numerous documentary evidence and presented several witnesses on various hearing dates.9. 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 abovestated, the Court will be constrained to consider the presentation of evidence for the Republic of the Philippines as terminated.

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

11. The trial of the consolidated cases continued and the reception of evidence of the private parties proceeded.12. 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 partyplaintiffs or any record showing the heirs or party in interest, these cases are dismissed without prejudice.13. 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).14. 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.15. 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.

16. CA: 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

17. Petitioner contends: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

ISSUE: Is the 12 September 1997 Order interlocutory? Yes.Are the consolidated cases subject to multiple appeals?HELD: 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.RATIO: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. To 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.

In the context of legal procedure, the term “consolidation” is used in three different senses:(i) 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. (quasiconsolidation)(ii) 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)

(iii) 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)

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, 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 12 September 1997 Order interlocutory?

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.” Conversely, an interlocutory order “does not dispose of the case completely but leaves something to be decided upon” 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.

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. There is no proof that petitioner intended to delay the proceedings in this case, much less abuse judicialprocesses.

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.

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 nonappearance 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.

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.

Is the property unclassified public forest?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. 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.