G.R. No.

108229 August 24, 1993

Center, Inc., Room 901, 112 Chunghsiao, E. Road, Section 1, Taipe, Republic of
China, to hear and take the oral deposition of the aforenamed persons . . . ."

DASMARIAS GARMENTS, INC., petitioner,

vs.
HON. RUBEN T. REYES, Judge, Regional Trial Court, Manila, Branch 50, and
AMERICAN PRESIDENT LINES, LTD., respondents.
Sobrevias, Diaz, Haudini & Bodegon Law Offices for petitioner.
Tan, Manzano & Velez Law Offices for private respondent.

RESOLUTION
NARVASA, C.J.:
Sometime in September, 1987, in the Regional Trial Court of Manila, the American
President Lines, Ltd. sued Dasmarias Garments, Inc. to recover the sum of US
$53,228.45 as well as an amount equivalent to twenty-five percent (25%) thereof as
attorney's fees and litigation expenses.
In its answer dated December 1, 1987, Dasmarias Garments, Inc. (hereafter, simply
Dasmarias) specifically denied any liability to the plaintiff (hereafter simply APL), and
set up compulsory counterclaims against it.
The case was in due course scheduled for trial on April 27, 1988. On that date APL
presented its first witness whose testimony was completed on November 12, 1988.
The case was reset to May 3, 1989 for reception of the testimony of two (2) more
witnesses in APL's behalf.
At the hearing of May 3, 1989, instead of presenting its witnesses, APL filed a motion
praying that it intended to take the depositions of H. Lee and Yeong Fang Yeh in
Taipei, Taiwan and prayed that for this purpose, a "commission or letters rogatory be
issued addressed to the consul, vice-consul or consular agent of the Republic of the
Philippines in Taipei . . . " Five (5) days later APL filed an amended motion stating that
since the Philippine Government has no consulate office in Taiwan in view of its "one
China policy," there being in lieu thereof an office set up by the President "presently
occupied by Director Joaquin Roces which is the Asia Exchange Center, Inc.," it was
necessary and it therefore prayed "that commission or letters rogatory be issued
addressed to Director Joaquin Roces, Executive Director, Asian Executive Exchange

The motion was opposed by Dasmarias. It contended that (a) the motion was "fatally
defective in that it does not seek . . . that a foreign court examine a person within its
jurisdiction;" (b) issuance of letters rogatory was unnecessary because the witnesses
"can be examined before the Philippine Court;" and
(c) the Rules of Court "expressly require that the testimony of a witness must be
taken orally in open court and not by deposition."
Extensive argument on the matter thereafter followed, through various pleadings filed
by the parties, in the course of which APL submitted to the Trial Court (a) the letter
received by its counsel from Director Joaquin R. Roces of the Asian Exchange
Center, Inc., dated November 20, 1989, advising that "this Office can only take
deposition upon previous authority from the Department of Foreign Affairs," this being
"in consonance with the Supreme Court Administrative Order requiring courts or
judicial bodies to course their requests through the Department of Foreign Affairs;"
and (b) a letter sent by "fax" to the same counsel by a law firm in Taipei, Lin &
Associates Maritime Law Office, transmitting information inter alia of the mode by
which, under the "ROC Civil Procedure Code," "a copy or an abridged copy" of
documents on file with a Taiwan Court may be obtained.
By Order dated March 15, 1991, the Trial Court resolved the incident in favor of APL,
disposing as follows:
ACCORDINGLY, the motion to take testimonies of plaintiff's
Taiwanese witnesses, Kenneth H. Lee and Yeong Fah Yeh, by
deposition (upon written interrogatories) is hereby GRANTED. The
Asian Exchange Center, Inc. thru Director Joaquin R. Roces is
hereby COMMISSIONED to take down the deposition. Compliance
with the Rules on the taking of testimony by deposition upon written
interrogatories under Sections 25-29 of Rule 24, Rules of Court is
enjoined.
Let this Order be coursed through the Department of Foreign
Affairs, Manila, pursuant to Supreme Court Administrative Circular
No. 4 dated April 6, 1987.
The Court opined that "the Asian Exchange Center, Inc. being the authorized
Philippine representative in Taiwan, may take the testimonies of plaintiff's witnesses
residing there by deposition, but only upon written interrogatoriesso as to give
defendant the opportunity to cross-examine the witnesses by serving crossexamination."

Dasmarias sought reconsideration by motion filed June 25, 1991 on the following
grounds: (1) authority of the Asian Exchange Center, Inc. (AECI) to take depositions
has not been established, it not being one of those so authorized by the Rules of
Court to take depositions in a foreign state; (2) AECI's articles of incorporation show
that it is not vested with any such authority; (3) to permit deposition-taking by
commission without the authority of the foreign state in which deposition is taken
constitutes infringement of judicial sovereignty; and (4) depositions by written
interrogatories have inherent limitations and are not suitable to matters dependent on
the credibility of witnesses; oral testimony in open court remains the "most
satisfactory method of investigation of facts'" and "'affords the greatest protection to
the rights and liberties of citizens."
By Order dated July 5, 1991, the motion for reconsideration was denied because
"filed out of time" and being a mere rehash of arguments already passed upon. In the
same Order, APL was directed "to take the necessary steps to implement the order
authorizing the . . . (deposition-taking) of its witnesses not later than the end of this
month, otherwise the Court will consider inaction or lack of interest as waiver to
adduce additional evidence by deposition."
Dasmarias instituted a special civil action of certiorari in the Court of Appeals to
nullify the orders of the Trial Court just described. Said Appellate Court restrained
enforcement of the orders of March 15, 1991 and July 5, 1991 "in order to maintain
the status quo and to prevent the infliction of irreparable damage and injury upon the
petitioner."
After due proceedings, the Court of Appeals (Third Division) rendered judgment on
September 23, 1992 denying Dasmarias petition for certiorari and upholding the
challenged orders of the Trial Court. Once again, Dasmarias sought reconsideration
of an adverse disposition, and once again, was rebuffed. Its motion for
reconsideration was denied in a Resolution of the Court of Appeals dated December
11, 1992.
Once again Dasmarias has availed of the remedy of appeal. It has come to this
Court and prays for the reversal of the Appellate Court's Decision of September 23,
1992 and Resolution dated December 11, 1992. Once again, it will fail.
Dasmarias ascribes to the Court of Appeals the following errors, to wit:
1) "in holding that a party could, during the trial of the case, present
its evidence by taking the deposition of its witnesses in a foreign
jurisdiction before a private entity not authorized by law to take
depositions in lieu of their oral examination in open Court
considering that:

a) the taking of deposition is a mode of pretrial

discovery to be availed of before the action
comes to trial;
b) no urgent or compelling reason has been
shown to justify the departure from the accepted
and usual judicial proceedings of examining
witnesses in open court where their demeanor
could be observed by the trial judge;"
2) "in disregarding the inherently unfair situation in allowing private
respondent, a foreign entity suing in the Philippines, to present its
evidence by mere deposition of its witnesses away from the
'penetrating scrutiny' of the trial Judge while petitioner is obligated
to bring and present its witnesses in open court subject to the
prying eyes and probing questions of the Judge;" and
3) "in sanctioning the deposition taking of . . . (APL's) witnesses in
Taipei, Taiwan, a foreign jurisdiction not recognized by the
Philippines in view of its 'one-China policy,' before the AECI, a
private entity not authorized by law to take depositions."
Depositions are chiefly a mode of discovery. They are intended as a means to compel
disclosure of facts resting in the knowledge of a party or other person which are
relevant in some suit or proceeding in court. Depositions, and the other modes of
discovery (interrogatories to parties; requests for admission by adverse party;
production or inspection of documents or things; physical and mental examination of
persons) are meant to enable a party to learn all the material and relevant facts, not
only known to him and his witnesses but also those known to the adverse party and
the latter's own witnesses. In fine, the object of discovery is to make it possible for all
the parties to a case to learn all the material and relevant facts, from whoever may
have knowledge thereof, to the end that their pleadings or motions may not suffer
from inadequacy of factual foundation, and all the relevant facts may be clearly and
completely laid before the Court, without omission or suppression.
Depositions are principally made available by law to the parties as a means of
informing themselves of all the relevant facts; they are not therefore generally meant
to be a substitute for the actual testimony in open court of a party or witness. The
deponent must as a rule be presented for oral examination in open court at the trial or
hearing. This is a requirement of the rules of evidence. Section 1, Rule 132 of the
Rules of Court provides:
Sec. 1. Examination to be done in open court. The examination
of witnesses presented in a trial or hearing shall be done in open

court, and under oath or affirmation. Unless the witness is

incapacitated to speak, or the question calls for a different mode of
answer, the answers of the witness shall be given orally.
Indeed, any deposition offered to prove the facts therein set out during a trial or
hearing, in lieu of the actual oral testimony of the deponent in open court, may be
opposed and excluded on the ground that it is hearsay; the party against whom it is
offered has no opportunity to cross-examine the deponent at the time that his
testimony is offered. It matters not that that opportunity for cross-examination was
afforded during the taking of the deposition; for normally, the opportunity for crossexamination must be accorded a party at the time that the testimonial evidence is
actually presented against him during the trial or hearing.
However, depositions may be used without the deponent being actually called to the
witness stand by the proponent, under certain conditions and for certain limited
purposes. These exceptional situations are governed by Section 4, Rule 24 of the
Rules of Court.
Sec. 4. Use of depositions. At the trial or upon the hearing of a
motion of an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence, may
be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in
accordance with any of the following provisions:
(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
witness;
(b) The deposition of a party or of any one who at the time of taking
the deposition was an officer, director, or managing agent of a
public or private corporation, partnership, or association which is a
party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the court finds: (1) that the
witness is dead; or (2) that the witness if out of the province and at
a greater distance than fifty (50) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition; or (3)
that the witness is unable to attend to testify because of age,
sickness, infirmity, or imprisonment; or (4) that the party offering the
deposition has been unable to procure the attendance of the
witness by subpoena; or (5) upon application and notice, that such

exceptional circumstances exist as to make it desirable, in the

interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open court, to allow
the deposition to be used;
(d) If only part of a deposition is offered in evidence by a party, the
adverse party may require him to introduce all of it which is relevant
to the part introduced, and any party may introduce any other parts.
The principle conceding admissibility to a deposition when the deponent is dead, out
of the Philippines, or otherwise unable to come to court to testify, is consistent with
another rule of evidence, found in Section 47, Rule 132 of the Rules of Court.
Sec. 47. Testimony or deposition at a former proceeding. The
testimony or deposition of a witness deceased or unable to testify,
given in a former case or proceeding, judicial or administrative,
involving the same parties and subject matter, may be given in
evidence against the adverse party who had the opportunity to
cross-examine him.
It is apparent then that the deposition of any person may be taken wherever he may
be, in the Philippines or abroad. If the party or witness is in the Philippines, his
deposition "shall be taken before any judge, municipal or notary public" (Sec. 10, Rule
24, Rules of Court). If in a foreign state or country, the deposition "shall be taken: (a)
on notice before a secretary or embassy or legation, consul general, consul, viceconsul, or consular agent of the Republic of the Philippines, or (b) before such person
or officer as may be appointed by commission or under letters rogatory" (Sec. 11,
Rule 24).
Leave of court is not necessary where the deposition is to be taken before "a
secretary or embassy or legation, consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines," and the defendant's answer has already
been served (Sec. 1 Rule 24). After answer, whether the deposition-taking is to be
accomplished within the Philippines or outside, the law does not authorize or
contemplate any intervention by the court in the process, all that is required being that
"reasonable notice" be given "in writing to every other party to the action . . . (stating)
the time and place for taking the deposition and the name and address of each
person to be examined, if known, and if the name is not known, a general description
sufficient to identify him or the particular class or group to which he belongs. . . . "
(Sec. 15, Rule 24). The court intervenes in the process only if a party moves (1) to
"enlarge or shorten the time" stated in the notice (id.), or (2) "upon notice and for good
cause shown," to prevent the deposition-taking, or impose conditions therefor, e.g.,
that "certain matters shall not be inquired into" or that the taking be "held with no one
present except the parties to the action and their officers or counsel," etc. (Sec. 16,

Rule 24), or
(3) to terminate the process on motion and upon a showing that "it is being conducted
in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or party" (Sec 18, Rule 24).
Where the deposition is to be taken in a foreign country where the Philippines has no
"secretary or embassy or legation, consul general, consul, vice-consul, or consular
agent," then obviously it may be taken only "before such person or officer as may be
appointed by commission or under letters rogatory. Section 12, Rule 24 provides as
follows:
Sec. 12. Commission or letters rogatory. A commission or letters
rogatory shall be issued only when necessary or convenient, on
application and notice, and on such terms and with such directions
as are just and appropriate. Officers may be designated in notices
or commissions either by name or descriptive title and letters
rogatory may be addressed "To the Appropriate Judicial Authority in
(here name the country)."
A commission may be defined as "(a)n instrument issued by a court of justice, or
other competent tribunal, to authorize a person to take depositions, or do any other
act by authority of such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p. 415,
citing Cyclopedic Law Dictionary, p. 200). Letters rogatory, on the other hand, may be
defined as "(a)n instrument sent in the name and by the authority of a judge or court
to another, requesting the latter to cause to be examined, upon interrogatories filed in
a cause pending before the former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed" (Feria, J., op. cit., citing
Cyclopedic Law Dictionary, p. 653). Section 12, Rule 24 just quoted states that a
commission is addressed to "officers . . . designated . . . either by name or descriptive
title," while letters rogatory are addressed to some "appropriate judicial authority in
the foreign state." Noteworthy in this connection is the indication in the Rules that
letters rogatory may be applied for and issued only after a commission has been
"returned unexecuted" as is apparent from Form 21 of the "Judicial Standard Forms"
appended to the Rules of Court, which requires the inclusion in a "petition for letters
rogatory" of the following paragraph, viz.:

of said __________ to said commission and made a part hereof by

attaching it hereto (or state other facts to show commission is
inadequate or cannot be executed) (emphasis supplied).
In the case at bar, the Regional Trial Court has issued a commission to the "Asian
Exchange Center, Inc. thru Director Joaquin R. Roces" "to take the testimonies of . . .
Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) . . . ."
It appears that said Center may, "upon request and authority of the Ministry (now
Department) of Foreign Affairs, Republic of the Philippines" issue a "Certificate of
Authentications" attesting to the identity and authority of Notaries Public and other
public officers of the Republic of China, Taiwan (eg., the Section Chief, Department of
Consular Affairs of the latter's Ministry of Foreign Affairs) (Annex B of Annex N of the
petition for review on certiorari) a prima facie showing not rebutted by petitioner.
It further appears that the commission is to be coursed through the Department of
Foreign Affairs conformably with Circular No. 4 issued by Chief Justice Claudio
Teehankee on April 6, 1987, pursuant to the suggestion of the Department of Foreign
Affairs directing "ALL JUDGES OF THE REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS" "to course
all requests for the taking of deposition of witnesses residing abroad through the
Department of Foreign Affairs" to enable it and "the Philippine Foreign Service
establishments to act on the matter in a judicious and expeditious manner;" this, "in
the interest of justice," and to avoid delay in the deposition-taking.
Petitioner would however prevent the carrying out of the commission on various
grounds.
The first is that the deposition-taking will take place in "a foreign jurisdiction not
recognized by the Philippines in view of its 'one-China policy.'" This is
inconsequential. What matters is that the deposition is taken before a Philippine
official acting by authority of the Philippine Department of Foreign Affairs and in virtue
of a commission duly issued by the Philippine Court in which the action is pending,
and in accordance, moreover, with the provisions of the Philippine Rules of Court
pursuant to which opportunity for cross-examination of the deponent will be fully
accorded to the adverse party.

xxx xxx xxx

3. A commission issued by this Court on the ______ day of ______,
19__, to take the testimony of (here name the witness or witnesses)
in (here name the foreign country in which the testimony is to be
taken), before _________________ (name of officer), was returned
unexecuted by __________________ on the ground that
____________, all of which more fully appears from the certificate

Dasmarias also contends that the "taking of deposition is a mode of pretrial

discovery to be availed of before the action comes to trial." Not so. Depositions may
be taken at any time after the institution of any action, whenever necessary or
convenient. There is no rule that limits deposition-taking only to the period of pre-trial
or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the
law authorizes the taking of depositions of witnesses before or after an appeal is
taken from the judgment of a Regional Trial Court "to perpetuate their testimony for

use in the event of further proceedings in the said court" (Rule 134, Rules of Court),
and even during the process of execution of a final and executory judgment (East
Asiatic Co. v. C.I.R., 40 SCRA 521, 544).
Dasmarias further claims that the taking of deposition under the circumstances is a
"departure from the accepted and usual judicial proceedings of examining witnesses
in open court where the demeanor could be observed by the trial judge;" that it is
"inherently unfair" to allow APL, "a foreign entity suing in the Philippines, to present its
evidence by mere deposition of its witnesses away from the 'penetrating scrutiny' of
the trial Judge while petitioner is obligated to bring and present its witnesses in open
court subject to the prying eyes and probing questions of the Judge."
Of course the deposition-taking in the case at bar is a "departure from the accepted
and usual judicial proceedings of examining witnesses in open court where their
demeanor could be observed by the trial judge;" but the procedure is not on that
account rendered illegal nor is the deposition thereby taken, inadmissible. It precisely
falls within one of the exceptions where the law permits such a situation, i.e., the use
of deposition in lieu of the actual appearance and testimony of the deponent in open
court and without being "subject to the prying eyes and probing questions of the
Judge." This is allowed provided the deposition is taken in accordance with the
applicable provisions of the Rules of Court and the existence of any of the exceptions
for its admissibility e.g., "that the witness if out of the province and at a greater
distance than fifty (50) kilometers from the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence was procured by the party offering the
deposition; or . . . that the witness is unable to attend to testify because of age,
sickness, infirmity, or imprisonment, etc." (Sec. 4 Rule 24, supra, emphasis supplied)
is first satisfactorily established (See Lopez v. Maceren, 95 Phil. 754).
The Regional Trial Court saw fit to permit the taking of the depositions of the
witnesses in question only by written interrogatories, removing the proponent's option
to take them by oral examination, i.e., by going to Taipei and actually questioning the
witnesses verbally with the questions and answers and observations of the parties
being recorded stenographically. The imposition of such a limitation, and the
determination of the cause thereof, are to be sure within the Court's discretion. The
ostensible reason given by the Trial Court for the condition that the deposition be
taken "only upon written interrogatories" is "so as to give defendant (Dasmarias)
the opportunity to cross-examine the witnesses by serving cross-interrogatories." The
statement implies that opportunity to cross-examine will not be accorded the
defendant if the depositions were to be taken upon oral examination, which, of
course, is not true. For even if the depositions were to be taken on oral examination in
Taipei, the adverse party is still accorded full right to cross-examine the deponents by
the law, either by proceeding to Taipei and there conducting the cross-examination
orally, or opting to conduct said cross-examination merely by serving crossinterrogatories.

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

G.R. No. 185527

July 18, 2012

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

when in truth and in fact the accused well knew that the same had been previously
encumbered, mortgaged and foreclosed by CHINA BANK CORPORATION as early
as September 1994 thereby causing damage and prejudice to said HIGHDONE
COMPANY LTD., in the said amount of $464,266.90 or its peso equivalent at
P20,892,010.50 more or less."
Upon arraignment, petitioners pleaded not guilty to the charge.

DECISION
PERLAS-BERNABE, J.:
The procedure for taking depositions in criminal cases recognizes the prosecution's
right to preserve testimonial evidence and prove its case despite the unavailability of
its witness. It cannot, however, give license to prosecutorial indifference or unseemly
involvement in a prosecution witness' absence from trial. To rule otherwise would
effectively deprive the accused of his fundamental right to be confronted with the
witnesses against him.
In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court,
petitioners seek to nullify and set aside the February 19, 2008 Decision1 and
November 28, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No.
99383, which reversed the September 12, 2006 Order3 issued by the Regional Trial
Court (RTC) of Manila, Branch 27 in Civil Case No. 06-114844 and upheld the grant
of the prosecutions motion to take the testimony of a witness by oral depositions in
Laos, Cambodia.
Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged before the
Metropolitan Trial Court (MeTC) of Manila for Other Deceits under Article 318 of the
Revised Penal Code (RPC) docketed as Criminal Case No. 396447. The
Information4 dated September 24, 2003, later amended5 on September 14, 2004,
reads:
"That sometime in August 1996, in the City of Manila, Philippines, the said accused,
conspiring, confederating together and helping one another, did then and there
willfully, unlawfully and feloniously defraud Highdone Company Ltd. Represented by
Li Luen Ping, in the following manner, to wit: all said accused, by means of false
manifestations and fraudulent representations which they made to said Li Luen Ping
to the effect that they have chattels such as machinery, spare parts, equipment and
raw materials installed and fixed in the premises of BGB Industrial Textile Mills
Factory located in the Bataan Export Processing Zone (BEPZ) in Mariveles, Bataan,
executed a Deed of Mortgage for a consideration of the amount of $464,266.90 or its
peso equivalent at P20,892,010.50 more or less in favor of ML Resources and
Highdone Company Ltd. Representing that the said deed is a FIRST MORTGAGE

The prosecution's complaining witness, Li Luen Ping, a frail old businessman from
Laos, Cambodia, traveled from his home country back to the Philippines in order to
attend the hearing held on September 9, 2004. However, trial dates were
subsequently postponed due to his unavailability.
On October 13, 2005, the private prosecutor filed with the MeTC a Motion to Take
Oral Deposition6 of Li Luen Ping, alleging that he was being treated for lung infection
at the Cambodia Charity Hospital in Laos, Cambodia and that, upon doctor's advice,
he could not make the long travel to the Philippines by reason of ill health.
Notwithstanding petitioners' Opposition,7 the MeTC granted8 the motion after the
prosecution complied with the directive to submit a Medical Certificate of Li Luen
Ping. Petitioners sought its reconsideration which the MeTC denied,9 prompting
petitioners to file a Petition for Certiorari10 before the RTC.
On September 12, 2006, the RTC granted the petition and declared the MeTC Orders
null and void.11 The RTC held that Section 17, Rule 23 on the taking of depositions of
witnesses in civil cases cannot apply suppletorily to the case since there is a specific
provision in the Rules of Court with respect to the taking of depositions of prosecution
witnesses in criminal cases, which is primarily intended to safeguard the constitutional
rights of the accused to meet the witness against him face to face.
Upon denial by the RTC of their motion for reconsideration through an Order dated
March 5, 2006,12 the prosecution elevated the case to the CA.
On February 19, 2008, the CA promulgated the assailed Decision which held that no
grave abuse of discretion can be imputed upon the MeTC for allowing the depositiontaking of the complaining witness Li Luen Ping because no rule of procedure
expressly disallows the taking of depositions in criminal cases and that, in any case,
petitioners would still have every opportunity to cross-examine the complaining
witness and make timely objections during the taking of the oral deposition either
through counsel or through the consular officer who would be taking the deposition of
the witness.

On November 28, 2008, the CA denied petitioners' motion for reconsideration. Hence,
this petition alleging that
I.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
METROPOLITAN TRIAL COURT INFRINGED THE CONSTITUTIONAL
RIGHT OF THE PETITIONERS TO A PUBLIC TRIAL IN ALLOWING THE
TAKING OF THE DEPOSITION OF THE COMPLAINING WITNESS IN
LAOS, CAMBODIA.
II.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
DEPOSITION TAKING OF THE COMPLAINING WITNESS IN LAOS,
CAMBODIA IS AN INFRINGEMENT OF THE CONSTITUTIONAL RIGHT OF
THE PETITIONERS TO CONFRONT THE SAID WITNESS FACE TO FACE.
III.THE COURT OF APPEALS ERRED IN SUSTAINING THE JUDICIAL
LEGISLATION COMMITTED BY THE METROPOLITAN TRIAL COURT IN
APPLYING THE RULES ON DEPOSITION-TAKING IN CIVIL CASES TO
CRIMINAL CASES.
IV.THE COURT OF APPEALS ERRED IN LIMITING THE TRADITIONAL
DEFINITION OF GRAVE ABUSE OF DISCRETION, OVERLOOKING THE
ESTABLISHED RULE THAT VIOLATION OF THE CONSTITUTION, THE
LAW OR JURISPRUDENCE SIMILARLY COMES WITHIN THE PURVIEW
OF GRAVE ABUSE OF DISCRETION.
We rule in favor of petitioners.
The Procedure for Testimonial Examination of an Unavailable Prosecution Witness is
Covered Under Section 15, Rule 119.
The examination of witnesses must be done orally before a judge in open court.13 This
is true especially in criminal cases where the Constitution secures to the accused his
right to a public trial and to meet the witnessess against him face to face. The
requirement is the "safest and most satisfactory method of investigating facts" as it
enables the judge to test the witness' credibility through his manner and deportment
while testifying.14 It is not without exceptions, however, as the Rules of Court
recognizes the conditional examination of witnesses and the use of their depositions
as testimonial evidence in lieu of direct court testimony.
Even in criminal proceedings, there is no doubt as to the availability of conditional
examination of witnesses both for the benefit of the defense, as well as the
prosecution. The Court's ruling in the case of Vda. de Manguerra v. Risos15 explicitly
states that

"x x x As exceptions, Rule 23 to 28 of the Rules of Court provide for the different
modes of discovery that may be resorted to by a party to an action. These rules are
adopted either to perpetuate the testimonies of witnesses or as modes of discovery.
In criminal proceedings, Sections 12, 13 and 15, Rule 119 of the Revised Rules of
Criminal Procedure, which took effect on December 1, 2000, allow the conditional
examination of both the defense and prosecution witnesses." (Underscoring
supplied)16
The procedure under Rule 23 to 28 of the Rules of Court allows the taking of
depositions in civil cases, either upon oral examination or written interrogatories,
before any judge, notary public or person authorized to administer oaths at any time
or place within the Philippines; or before any
Philippine consular official, commissioned officer or person authorized to administer
oaths in a foreign state or country, with no additional requirement except reasonable
notice in writing to the other party.17
But for purposes of taking the deposition in criminal cases, more particularly of a
prosecution witness who would forseeably be unavailable for trial, the testimonial
examination should be made before the court, or at least before the judge, where the
case is pending as required by the clear mandate of Section 15, Rule 119 of the
Revised Rules of Criminal Procedure. The pertinent provision reads thus:
SEC. 15. Examination of witness for the prosecution. When it satisfactorily appears
that a witness for the prosecution is too sick or infirm to appear at the trial as directed
by the court, or has to leave the Philippines with no definite date of returning, he may
forthwith be conditionally examined before the court where the case is pending. Such
examination, in the presence of the accused, or in his absence after reasonable
notice to attend the examination has been served on him shall be conducted in the
same manner as an examination at the trial. Failure or refusal of the accused to
attend the examination after notice shall be considered a waiver. The statement taken
may be admitted in behalf of or against the accused.
Since the conditional examination of a prosecution witness must take place at no
other place than the court where the case is pending, the RTC properly nullified the
MeTC's orders granting the motion to take the deposition of Li Luen Ping before the
Philippine consular official in Laos, Cambodia. We quote with approval the RTC's
ratiocination in this wise:
The condition of the private complainant being sick and of advanced age falls within
the provision of Section 15 Rule 119 of the Rules of Court. However, said rule
substantially provides that he should be conditionally examined before the court
where the case is pending. Thus, this Court concludes that the language of Section
15 Rule 119 must be interpreted to require the parties to present testimony at the

hearing through live witnesses, whose demeanor and credibility can be evaluated by
the judge presiding at the hearing, rather than by means of deposition. No where in
the said rule permits the taking of deposition outside the Philippines whether the
deponent is sick or not.18 (Underscoring supplied)

accused, i.e., the right to a public trial and the right to confrontation of witnesses.
Section 14(2), Article III of the

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

Section 14. (1) x x x

While we recognize the prosecution's right to preserve the testimony of its witness in
order to prove its case, we cannot disregard the rules which are designed mainly for
the protection of the accused's constitutional rights. The giving of testimony during
trial is the general rule. The conditional examination of a witness outside of the trial is
only an exception, and as such, calls for a strict construction of the
rules.20 (Underscoring supplied)
It is argued that since the Rules of Civil Procedure is made explicitly applicable in all
cases, both civil and criminal as well as special proceedings, the deposition-taking
before a Philippine consular official under Rule 23 should be deemed allowable also
under the circumstances.
However, the suggested suppletory application of Rule 23 in the testimonial
examination of an unavailable prosecution witness has been categorically ruled out
by the Court in the same case of Vda. de Manguerra, as follows:
It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil
procedure apply to all actions, civil or criminal, and special proceedings. In effect, it
says that the rules of civil procedure have suppletory application to criminal cases.
However, it is likewise true that criminal proceedings are primarily governed by the
Revised Rules of Criminal Procedure.
Considering that Rule 119 adequately and squarely covers the situation in the instant
case, we find no cogent reason to apply Rule 23 suppletorily or otherwise."
(Underscoring supplied)
The Conditional Examination of a Prosecution Witness Cannot Defeat the Rights of
the Accused to Public Trial and Confrontation of Witnesses
The CA took a simplistic view on the use of depositions in criminal cases and
overlooked fundamental considerations no less than the Constitution secures to the

Constitution provides as follows:

(2) In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy,
impartial and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is
unjustifiable. (Underscoring supplied)
In dismissing petitioners' apprehensions concerning the deprivation of their
constitutional rights to a public trial and confrontation, the CA opined that petitioners
would still be accorded the right to cross-examine the deponent witness and raise
their objections during the deposition-taking in the same manner as in a regular court
trial.
We disagree. There is a great deal of difference between the face-to- face
confrontation in a public criminal trial in the presence of the presiding judge and the
cross-examination of a witness in a foreign place outside the courtroom in the
absence of a trial judge. In the aptly cited case of People v. Estenzo,21 the Court
noted the uniqueness and significance of a witness testifying in open court, thus:
"The main and essential purpose of requiring a witness to appear and testify orally at
a trial is to secure for the adverse party the opportunity of cross-examination. "The
opponent", according to an eminent authority, "demands confrontation, not for the idle
purpose of gazing upon the witness, or of being gazed upon by him, but for the
purpose of cross examination which cannot be had except by the direct and personal
putting of questions and obtaining immediate answers." There is also the advantage
of the witness before the judge, and it is this it enables the judge as trier of facts "to
obtain the elusive and incommunicable evidence of a witness' deportment while
testifying, and a certain subjective moral effect is produced upon the witness. It is only
when the witness testifies orally that the judge may have a true idea of his
countenance, manner and expression, which may confirm or detract from the weight
of his testimony. Certainly, the physical condition of the witness will reveal his capacity
for accurate observation and memory, and his deportment and physiognomy will
reveal clues to his character. These can only be observed by the judge if the witness
testifies orally in court. x x x"22 (Underscoring supplied)1wphi1

The right of confrontation, on the other hand, is held to apply specifically to criminal
proceedings and to have a twofold purpose: (1) to afford the accused an opportunity
to test the testimony of witnesses by cross-examination, and (2) to allow the judge to
observe the deportment of witnesses.23 The Court explained in People v. Seneris24that
the constitutional requirement "insures that the witness will give his testimony under
oath, thus deterring lying by the threat of perjury charge; it forces the witness to
submit to cross-examination, a valuable instrument in exposing falsehood and
bringing out the truth; and it enables the court to observe the demeanor of the witness
and assess his credibility."25
As the right of confrontation is intended "to secure the accused in the right to be tried
as far as facts provable by witnesses as meet him face to face at the trial who give
their testimony in his presence, and give to the accused an opportunity of crossexamination,"26 it is properly viewed as a guarantee against the use of unreliable
testimony in criminal trials. In the American case of Crawford v. Washington,27 the US
Supreme Court had expounded on the procedural intent of the confrontation
requirement, thus:
Where testimonial statements are involved, we do not think the Framers meant to
leave the Sixth Amendment's right to confront witness face to face protection to the
vagaries of the rules of evidence, much less to amorphous notions of "reliability".
Certainly, none of the authorities discussed above acknowledges any general
reliability exception to the common-law rule.
Admitting statements deemed reliable by a judge is fundamentally at odds with the
right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of
evidence, but it is a procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a particular manner: by
testing in the crucible of cross-examination. The Clause thus reflects a judgment, not
only about the desirability of reliable evidence (a point on which there could be little
dissent), but about how reliability can best be determined." (Underscoring supplied)
The Webb Ruling is Not on All Fours with the Instant Case
The CA found the frail and infirm condition of the prosecution witness as sufficient and
compelling reason to uphold the MeTC Orders granting the deposition-taking,
following the ruling in the case of People v. Webb28 that the taking of an unavailable
witness' deposition is in the nature of a discovery procedure the use of which is within
the trial court's sound discretion which needs only to be exercised in a reasonable
manner and in consonance with the spirit of the law.29
But the ruling in the cited case is not instantly applicable herein as the factual settings
are not similar.1wphi1 The accused in the Webb case had sought to take the oral
deposition of five defense witnesses before a Philippine consular agent in lieu of

presenting them as live witnesses, alleging that they were all residents of the United
States who could not be compelled by subpoena to testify in court. The trial court
denied the motion of the accused but the CA differed and ordered the deposition
taken. When the matter was raised before this Court, we sustained the trial court's
disallowance of the deposition-taking on the limited ground that there was no
necessity for the procedure as the matter sought to be proved by way of deposition
was considered merely corroborative of the evidence for the defense.30
In this case, where it is the prosecution that seeks to depose the complaining witness
against the accused, the stringent procedure under Section 15, Rule 119 cannot be
ignored without violating the constitutional rights of the accused to due process.
Finally, the Court takes note that prosecution witness Li Luen Ping had managed to
attend the initial trial proceedings before the MeTC of Manila on September 9, 2004.
At that time, Li Luen Ping's old age and fragile constitution should have been
unmistakably apparent and yet the prosecution failed to act with zeal and foresight in
having his deposition or testimony taken before the MeTC pursuant to Section 15,
Rule 119 of the Revised Rules of Court. In fact, it should have been imperative for the
prosecution to have moved for the preservation of Li Luen Ping's testimony at that
first instance given the fact that the witness is a non-resident alien who can leave the
Philippines anytime without any definite date of return. Obviously, the prosecution
allowed its main witness to leave the court's jurisdiction without availing of the court
procedure intended to preserve the testimony of such witness. The loss of its cause is
attributable to no other party.
Still, even after failing to secure Li Luen Ping's conditional examination before the
MeTC prior to said witness' becoming sick and unavailable, the prosecution would
capitalize upon its own failure by pleading for a liberal application of the rules on
depositions. It must be emphasized that while the prosecution must provide the
accused every opportunity to take the deposition of witnesses that are material to his
defense in order to avoid charges of violating the right of the accused to compulsory
process, the State itself must resort to deposition-taking sparingly if it is to guard
against accusations of violating the right of the accused to meet the witnesses against
him face to face. Great care must be observed in the taking and use of depositions of
prosecution witnesses to the end that no conviction of an accused will rely on ex parte
affidavits and deposition.31
Thus, the CA ignored the procedure under the Revised Rules of Criminal Procedure
for taking the deposition of an unavailable prosecution witness when it upheld the trial
court's order allowing the deposition of prosecution witness Li Luen Ping to take place
in a venue other than the court where the case is pending. This was certainly grave
abuse of discretion.

WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated

February 19, 2008 and the Resolution dated November 28, 2008 of the Court of
Appeals are REVERSED and SET ASIDE. Accordingly, the Decision of the Regional
Trial Court which disallowed the deposition-taking in Laos, Cambodia is
REINSTATED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate justice

G.R. No. 152643

August 28, 2008

the aforesaid motion. Concepcions motion for reconsideration was denied on June 5,
2000.9

CONCEPCION CUENCO VDA. DE MANGUERRA and THE HON. RAMON C.

CODILLA, JR., Presiding Judge of the Regional Trial Court of Cebu City, Branch
19, petitioners,
vs.
RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ and ATTY. GAMALIEL D.B.
BONJE,respondents.

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

DECISION

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

NACHURA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing
the Court of Appeals (CA) Decision1 dated August 15, 2001 and its Resolution2 dated
March 12, 2002. The CA decision set aside the Regional Trial Court (RTC) Orders
dated August 25, 20003 granting Concepcion Cuenco Vda. de Manguerras
(Concepcions) motion to take deposition, and dated November 3, 20004 denying the
motion for reconsideration of respondents Raul G. Risos, Susana Yongco, Leah
Abarquez, and Atty. Gamaliel D.B. Bonje.
The facts of the case, as culled from the records, follow:
On November 4, 1999, respondents were charged with Estafa Through Falsification
of Public Document before the RTC of Cebu City, Branch 19, through a criminal
information dated October 27, 1999, which was subsequently amended on November
18, 1999. The case, docketed as Criminal Case No. CBU-52248,5 arose from the
falsification of a deed of real estate mortgage allegedly committed by respondents
where they made it appear that Concepcion, the owner of the mortgaged property
known as the Gorordo property, affixed her signature to the document. Hence, the
criminal case.6

On August 25, 2000, the RTC granted the motion and directed that Concepcions
deposition be taken before the Clerk of Court of Makati City.12 The respondents
motion for reconsideration was denied by the trial court on November 3, 2000. The
court ratiocinated that procedural technicalities should be brushed aside because of
the urgency of the situation, since Concepcion was already of advanced age.13 After
several motions for change of venue of the deposition-taking, Concepcions
deposition was finally taken on March 9, 2001 at her residence.14
Aggrieved, respondents assailed the August 25 and November 3 RTC orders in a
special civil action for certiorari before the CA in CA-G.R. SP No. 62551.15
On August 15, 2001, the CA rendered a Decision16 favorable to the respondents, the
dispositive portion of which reads:
WHEREFORE, the petition is GRANTED and the August 25, 2000 and
November 3, 2000 orders of the court a quo are hereby SET ASIDE, and any
deposition that may have been taken on the authority of such void orders is
similarly declared void.
SO ORDERED.17

Earlier, on September 10, 1999, Concepcion, who was a resident of Cebu City, while
on vacation in Manila, was unexpectedly confined at the Makati Medical Center due to
upper gastro-intestinal bleeding; and was advised to stay in Manila for further
treatment.7
On November 24, 1999, respondents filed a Motion for Suspension of the
Proceedings in Criminal Case No. CBU-52248 on the ground of prejudicial question.
They argued that Civil Case No. CEB-20359, which was an action for declaration of
nullity of the mortgage, should first be resolved.8 On May 11, 2000, the RTC granted

At the outset, the CA observed that there was a defect in the respondents petition by
not impleading the People of the Philippines, an indispensable party. This
notwithstanding, the appellate court resolved the matter on its merit, declaring that the
examination of prosecution witnesses, as in the present case, is governed by Section
15, Rule 119 of the Revised Rules of Criminal Procedure and not Rule 23 of the Rules
of Court. The latter provision, said the appellate court, only applies to civil cases.
Pursuant to the specific provision of Section 15, Rule 119, Concepcions deposition
should have been taken before the judge or the court where the case is pending,

which is the RTC of Cebu, and not before the Clerk of Court of Makati City; and thus,
in issuing the assailed order, the RTC clearly committed grave abuse of discretion. 18
In its Resolution dated March 12, 2002 denying petitioners motion for
reconsideration, the CA added that the rationale of the Rules in requiring the taking of
deposition before the same court is the constitutional right of the accused to meet the
witnesses face to face. The appellate court likewise concluded that Rule 23 could not
be applied suppletorily because the situation was adequately addressed by a specific
provision of the rules of criminal procedure.19
Hence, the instant petition raising the following issues:
I.
WHETHER OR NOT RULE 23 OF THE 1997 RULES OF CIVIL
PROCEDURE APPLIES TO THE DEPOSITION OF PETITIONER.
II.
WHETHER OR NOT FAILURE TO IMPLEAD THE "PEOPLE OF THE
PHILIPPINES" IN A PETITION FOR CERTIORARI ARISING FROM A
CRIMINAL CASE A QUO CONSTITUTES A WAIVABLE DEFECT IN THE
PETITION FOR CERTIORARI.20
It is undisputed that in their petition for certiorari before the CA, respondents failed to
implead the People of the Philippines as a party thereto. Because of this, the petition
was obviously defective. As provided in Section 5, Rule 110 of the Revised Rules of
Criminal Procedure, all criminal actions are prosecuted under the direction and
control of the public prosecutor. Therefore, it behooved the petitioners (respondents
herein) to implead the People of the Philippines as respondent in the CA case to
enable the Solicitor General to comment on the petition.21
However, this Court has repeatedly declared that the failure to implead an
indispensable party is not a ground for the dismissal of an action. In such a case, the
remedy is to implead the non-party claimed to be indispensable. Parties may be
added by order of the court, on motion of the party or on its own initiative at any stage
of the action and/or such times as are just. If the petitioner/plaintiff refuses to implead
an indispensable party despite the order of the court, the latter may dismiss the
complaint/petition for the petitioners/plaintiffs failure to comply.22
In this case, the CA disregarded the procedural flaw by allowing the petition to
proceed, in the interest of substantial justice. Also noteworthy is that, notwithstanding
the non-joinder of the People of the Philippines as party-respondent, it managed,

through the Office of the Solicitor General, to file its Comment on the petition
for certiorari. Thus, the People was given the opportunity to refute the respondents
arguments.
Instructive is the Courts pronouncement in Commissioner Domingo v. Scheer23 in this
wise:
There is nothing sacred about processes or pleadings, their forms or
contents. Their sole purpose is to facilitate the application of justice to the
rival claims of contending parties. They were created, not to hinder and
delay, but to facilitate and promote, the administration of justice. They do not
constitute the thing itself, which courts are always striving to secure to
litigants. They are designed as the means best adapted to obtain that thing.
In other words, they are a means to an end. When they lose the character of
the one and become the other, the administration of justice is at fault and
courts are correspondingly remiss in the performance of their obvious duty.24
Accordingly, the CA cannot be faulted for deciding the case on the merits despite the
procedural defect.
On the more important issue of whether Rule 23 of the Rules of Court applies to the
instant case, we rule in the negative.
It is basic that all witnesses shall give their testimonies at the trial of the case in the
presence of the judge.25 This is especially true in criminal cases in order that the
accused may be afforded the opportunity to cross-examine the witnesses pursuant to
his constitutional right to confront the witnesses face to face.26 It also gives the parties
and their counsel the chance to propound such questions as they deem material and
necessary to support their position or to test the credibility of said witnesses.27 Lastly,
this rule enables the judge to observe the witnesses demeanor.28
This rule, however, is not absolute. As exceptions, Rules 23 to 28 of the Rules of
Court provide for the different modes of discovery that may be resorted to by a party
to an action. These rules are adopted either to perpetuate the testimonies of
witnesses or as modes of discovery. In criminal proceedings, Sections 12,29 1330 and
15,31 Rule 119 of the Revised Rules of Criminal Procedure, which took effect on
December 1, 2000, allow the conditional examination of both the defense and
prosecution witnesses.
In the case at bench, in issue is the examination of a prosecution witness, who,
according to the petitioners, was too sick to travel and appear before the trial court.
Section 15 of Rule 119 thus comes into play, and it provides:

Section 15. Examination of witness for the prosecution. When it

satisfactorily appears that a witness for the prosecution is too sick or infirm to
appear at the trial as directed by the court, or has to leave the Philippines
with no definite date of returning, he may forthwith be conditionally examined
before the court where the case is pending. Such examination, in the
presence of the accused, or in his absence after reasonable notice to attend
the examination has been served on him, shall be conducted in the same
manner as an examination at the trial. Failure or refusal of the accused to
attend the examination after notice shall be considered a waiver. The
statement taken may be admitted in behalf of or against the accused.
Petitioners contend that Concepcions advanced age and health condition exempt her
from the application of Section 15, Rule 119 of the Rules of Criminal Procedure, and
thus, calls for the application of Rule 23 of the Rules of Civil Procedure.
The contention does not persuade.
The very reason offered by the petitioners to exempt Concepcion from the coverage
of Rule 119 is at once the ground which places her squarely within the coverage of
the same provision. Rule 119 specifically states that a witness may be conditionally
examined: 1) if the witness is too sick or infirm to appear at the trial; or 2) if the
witness has to leave the Philippines with no definite date of returning. Thus, when
Concepcion moved that her deposition be taken, had she not been too sick at that
time, her motion would have been denied. Instead of conditionally examining her
outside the trial court, she would have been compelled to appear before the court for
examination during the trial proper.
Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus
required that the conditional examination be made before the court where the case is
pending. It is also necessary that the accused be notified, so that he can attend the
examination, subject to his right to waive the same after reasonable notice. As to the
manner of examination, the Rules mandate that it be conducted in the same manner
as an examination during trial, that is, through question and answer.
At this point, a query may thus be posed: in granting Concepcions motion and in
actually taking her deposition, were the above rules complied with? The CA answered
in the negative. The appellate court considered the taking of deposition before the
Clerk of Court of Makati City erroneous and contrary to the clear mandate of
the Rules that the same be made before the court where the case is pending.
Accordingly, said the CA, the RTC order was issued with grave abuse of discretion.
We agree with the CA and quote with approval its ratiocination in this wise:

Unlike an examination of a defense witness which, pursuant to Section 5,

Rule 119 of the previous Rules, and now Section 13, Rule 119 of the present
Revised Rules of Criminal Procedure, may be taken before any "judge, or, if
not practicable, a member of the Bar in good standing so designated by the
judge in the order, or, if the order be made by a court of superior jurisdiction,
before an inferior court to be designated therein," the examination of a
witness for the prosecution under Section 15 of the Revised Rules of
Criminal Procedure (December 1, 2000) may be done only "before the court
where the case is pending."32
Rule 119 categorically states that the conditional examination of a prosecution
witness shall be made before the court where the case is pending. Contrary to
petitioners contention, there is nothing in the rule which may remotely be interpreted
to mean that such requirement applies only to cases where the witness is within the
jurisdiction of said court and not when he is kilometers away, as in the present case.
Therefore, the court may not introduce exceptions or conditions. Neither may it
engraft into the law (or the Rules) qualifications not contemplated.33 When the words
are clear and categorical, there is no room for interpretation. There is only room for
application.34
Petitioners further insist that Rule 23 applies to the instant case, because the rules on
civil procedure apply suppletorily to criminal cases.
It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil
procedure apply to all actions, civil or criminal, and special proceedings. In effect, it
says that the rules of civil procedure have suppletory application to criminal cases.
However, it is likewise true that the criminal proceedings are primarily governed by
the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and
squarely covers the situation in the instant case, we find no cogent reason to apply
Rule 23 suppletorily or otherwise.
To reiterate, the conditional examination of a prosecution witness for the purpose of
taking his deposition should be made before the court, or at least before the judge,
where the case is pending. Such is the clear mandate of Section 15, Rule 119 of
the Rules. We find no necessity to depart from, or to relax, this rule. As correctly held
by the CA, if the deposition is made elsewhere, the accused may not be able to
attend, as when he is under detention. More importantly, this requirement ensures
that the judge would be able to observe the witness deportment to enable him to
properly assess his credibility. This is especially true when the witness testimony is
crucial to the prosecutions case.
While we recognize the prosecutions right to preserve its witness testimony to prove
its case, we cannot disregard rules which are designed mainly for the protection of
the accuseds constitutional rights. The giving of testimony during trial is the general

rule. The conditional examination of a witness outside of the trial is only an exception,
and as such, calls for a strict construction of the rules.
WHEREFORE, the petition is hereby DENIED. The Court of Appeals Decision and
Resolution dated August 25, 2000 and March 12, 2002, respectively, in CA-G.R. SP
No. 62551, are AFFIRMED.
SO ORDERED.
Ynares-Santiago, Chairperson, Austria-Martinez, Chico-Nazario, Reyes, JJ., concur.

[G.R. No. 118438. December 4, 1998]

ALLIED

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

invoices were actually ordered by the former; and, (e) private respondent had no
cause of action against petitioner.
OF
On 19 July 1988, CHERRY VALLEY served on ALLIEDs counsel a Request for
Admission[2] dated 15 July 1988 worded as follows:

DECISION
BELLOSILLO, J.:
ALLIED AGRI-BUSINESS DEVELOPMENT CO., INC. assails in this petition the
decision of the Court of Appeals which affirmed the judgment of the trial court granting
the motion for summary judgment filed by Cherry Valley Farms Limited based on the
implied admissions of petitioner.
On 14 October 1986 respondent Cherry Valley Farms Limited (CHERRY
VALLEY), a foreign company based in England, filed against petitioner Allied AgriBusiness Development Co. Inc. (ALLIED) a complaint with the Regional Trial Court of
Makati City for collection of sum of money alleging, among others that: (a) CHERRY
VALLEY is a foreign corporation with principal office at Rothwell, Lincoln, England; (b)
on 1 September 1982 up to 16 February 1983, or for a period of less than six (6)
months, petitioner ALLIED purchased in ten (10) separate orders and received from
respondent CHERRY VALLEY several duck hatching eggs and ducklings which in
value totaled 51,245.12; (c) ALLIED did not pay the total purchase price of
51,245.12 despite repeated demands evidenced by a letter of Solicitor Braithwaite of
England in behalf of CHERRY VALLEY; (d) instead of paying its obligation, ALLIED
through its president wrote CHERRY VALLEY on 17 July 1985 inviting the latter to be
a stockholder in a new corporation to be formed by ALLIED, which invitation however
was rejected by CHERRY VALLEY on 26 September 1985; and, (e) ALLIED's
president Ricardo Quintos expressly acknowledged through a letter of 8 October 1985
the obligation of his corporation to CHERRY VALLEY. The complaint also prayed that
ALLIED be made to pay the sum of 51,245.12 or its peso equivalent at the time of
payment, plus legal interest from date of filing of the complaint until full payment, and
twenty percent (20%) of the total amount being claimed from petitioner as attorneys
fees; and, to pay the costs of suit.
On 27 February 1986 ALLIED filed an answer [1] denying the material allegations
of the complaint and contended that: (a) private respondent CHERRY VALLEY
lacked the legal capacity to sue; (b) the letter of Quintos to CHERRY VALLEY was
never authorized by the board of petitioner ALLIED, thus any admission made in that
letter could not bind ALLIED; (c) the alleged amount of 51,245.12 did not represent
the true and real obligation, if any, of petitioner; (d) to the best of the knowledge of
ALLIED, not all ducks and ducklings covered and represented by CHERRY VALLEYs

1. That the chairman of the board of directors and president of your corporation is Mr.
Ricardo V. Quintos;
2. That out of the 3,000,000 subscribed shares of stock, 1,496,000 shares is (sic)
owned by Mr. Ricardo Quintos and 1,432,000 shares is(sic) also owned by his wife,
Agnes dela Torre;
3. That for a period of six (6) months starting from 1 September 1982, your
corporation ordered and received from CHERRY VALLEY duck eggs and ducklings
with a total value of 51,245.12 as reflected on CHERRY VALLEY invoices issued to
you;
4. That you received a letter dated 22 March 1985 from Mr. P.R.C. Braithwaite,
solicitor of CHERRY VALLEY, demanding settlement of your unpaid account of
52,245.12 for the above-stated purchases;
5. That instead of paying your obligation to CHERRY VALLEY, Mr. Ricardo Quintos,
in his capacity as president of your corporation, sent a letter to CHERRY VALLEY
dated 17 July 1985 proposing the setting up of a new corporation with CHERRY
VALLEY refusing acceptance of your proposal;
6. That you received a letter dated 26 September 1985 from Mr. J. Cross, Director
and Secretary of CHERRY VALLEY refusing acceptance of your proposal;
7. That Mr. Ricardo Quintos in a letter dated 8 October 1985 admitted your
indebtedness in the sum of English Sterling Pounds 51,245.12.
It is further requested that said sworn admission be made within 10 days from receipt
of this request.
ALLIED filed its Comments/Objections[3] alleging that: (a) the admissions
requested were matters which the private respondent had the burden to prove
through its own witness during the trial and thus petitioner need not answer; and, (b)
the request for admission regarding the ownership set-up of petitioner corporation
was immaterial and improper for not having been pleaded in the complaint.

In its Reply[4] to Comments/Objections to Request for Admission, CHERRY

VALLEY maintained that there was no need on its part to produce a witness to testify
on the matters requested for admission, for these pertained to incidents personal to
and within the knowledge of petitioner alone. Thereafter, on 2 August 1998, CHERRY
VALLEY filed a motion with the trial court to resolve the objections of ALLIED to the
request for admission.
On 11 August 1988 the trial court issued an Order[5] disregarding
ALLIEDs Comments/Objections to Request for Admission in view of its noncompliance with Sec. 2, Rule 26, of the Rules of Court and directing ALLIED to
answer the request for admission within ten (10) days from receipt of the order,
otherwise, the matters contained in the request would be deemed admitted. ALLIED
moved to reconsider the order; however, on 8 November 1988 the lower court
denied[6] ALLIEDs motion for reconsideration and directed the latter to answer the
request for admission within a nonextendible period of five (5) days from receipt of the
order.
ALLIED failed to submit a sworn answer to the request for admission within the
additional period of five (5) days granted by the trial court. Hence, CHERRY VALLEY
filed a motion for summary judgment[7] alleging that there was already an implied
admission on the matters requested for admission pursuant to Rule 26 of the Rules of
Court.
On 23 October 1990, the trial court rendered judgment[8] against petitioner: (a)
Ordering defendant to pay plaintiff the sum of -51,245.12 or its peso equivalent at
the time of payment plus legal interest from the date of filing of this complaint until
fully paid; and, (b) Ordering defendant to pay plaintiff ten percent (10%) of the total
amount due from defendant by way of attorneys fees since no protracted trial was
held in this case, plus cost of suit.
ALLIED appealed to the Court of Appeals. On 6 September 1994 the Court of
Appeals rendered a decision[9] affirming the summary judgment rendered by the trial
court with the modification that ALLIED should pay the monetary award to CHERRY
VALLEY in Philippine currency and that the award of attorneys fees and costs of suit
be deleted.
Hence, the instant petition by ALLIED alleging that serious errors were
committed by the Court of Appeals in affirming the summary judgment of the trial
court; that the complaint should have been instantly dismissed on the ground of lack
of personality to sue on the part of respondent CHERRY VALLEY; that the summary
judgment was tantamount to a denial of ALLIEDs right to due process for not
requiring CHERRY VALLEY to produce its own witness; and, that the admission
requested were matters which CHERRY VALLEY had the burden to prove during the
trial.

The petition must fail. We cannot sustain the allegation that respondent
CHERRY VALLEY being an unlicensed foreign corporation lacked the legal capacity
to institute the suit in the trial court for the recovery of money claims from
petitioner. In fact, petitioner is estopped from challenging or questioning the
personality of a corporation after having acknowledged the same by entering into a
contract with it.[10] The doctrine of lack of capacity to sue or failure of a foreign
corporation to acquire a local license was never intended to favor domestic
corporations who enter into solitary transactions with unwary foreign firms and then
repudiate their obligations simply because the latter are not licensed to do business in
this country.[11]
Petitioner cannot also successfully argue that its failure to answer the request
for admission did not result in its admission of the matters stated in the
request. Section 1 of Rule 26 of the Rules of Court provides:
SECTION 1. Request for admission. - At any time after issues have been joined, a
party may file and serve upon any other party a written request for the admission by
the latter of the genuineness of any material and relevant document described in and
exhibited with the request or of the truth of any material and relevant matter of fact set
forth in the request. Copies of the documents shall be delivered with the request
unless copies have already been furnished.
The purpose of the rule governing requests for admission of facts and
genuineness of documents is to expedite trial and to relieve parties of the costs of
proving facts which will not be disputed on trial and the truth of which can be
ascertained by reasonable inquiry. Each of the matters of which an admission is
requested shall be deemed admitted unless within a period designated in the request
which shall not be less than fifteen (15) days after service thereof, or within such
further time as the court may allow on motion, the party to whom the request is
directed files and serves upon the party requesting the admission a sworn statement
either denying specifically the matters of which an admission is requested or setting
forth in detail the reasons why he cannot truthfully either admit or deny those matters.
[12]
Upon service of request for admission, the party served may do any of the following
acts: (a) he may admit each of the matters of which an admission is requested, in
which case, he need not file an answer; (b) he may admit the truth of the matters of
which admission is requested by serving upon the party requesting a written
admission of such matters within the period stated in the request, which must not be
less than ten (10) days after service, or within such further time as the court may
allow on motion and notice; (c) he may file a sworn statement denying specifically the
matter of which an admission is requested; or, (d) he may file a sworn statement
setting forth in detail the reasons why he cannot truthfully either admit or deny the
matters of which an admission is requested.[13]

The records show that although petitioner filed with the trial court its comments
and objections to the request for admission served on it by private respondent, the
trial court disregarded the objections and directed petitioner after denying its motion
for reconsideration, to answer the request within five (5) days from receipt of the
directive; otherwise, the matters of which the admission was requested would be
deemed admitted. Petitioner failed to submit the required answer within the
period. The matter set forth in the request were therefore deemed admitted by
petitioner, i.e., (a) that for a period of six (6) months starting from 1 September 1982,
petitioner ordered and received from respondent CHERRY VALLEY duck eggs and
ducklings amounting to 51,245.12; (b) that petitioner received a letter dated 22
March 1985 from private respondents lawyer demanding payment of the amount of
the purchases; (c) that instead of paying the obligation to respondent CHERRY
VALLEY, petitioners president Ricardo Quintos sent a letter to the former proposing
the establishment of a new corporation with CHERRY VALLEY as one of the
stockholders; (d) that the proposal was refused by the Director of CHERRY VALLEY;
and, (e) that petitioners president Ricardo Quintos admitted the indebtedness of his
corporation to CHERRY VALLEY in the sum of English Sterling Pounds 51,245.12.
The burden of affirmative action is on the party upon whom notice is served to
avoid the admission rather than upon the party seeking the admission. [14] Hence,
when petitioner failed to reply to a request to admit, it may not argue that the adverse
party has the burden of proving the facts sought to be admitted. Petitioners silence is
an admission of the facts stated in the request.[15]
This Court finds that the motion for summary judgment filed by respondent
CHERRY VALLEY on the ground that there were no questions of fact in issue since
the material allegations of the complaint were not disputed was correctly granted by
the trial court. It is a settled rule that summary judgment may be granted if the facts
which stand admitted by reason of a partys failure to deny statements contained in a
request for admission show that no material issue of fact exists. [16] By its failure to
answer the other partys request for admission, petitioner has admitted all the material
facts necessary for judgment against itself.[17]
WHEREFORE, the Petition is DENIED. The decision of the Court of Appeals
dated 6 September 1994 which AFFIRMED the trial court in "ordering defendant to
pay plaintiff the sum of 51,245.12 or its peso equivalent at the time of payment plus
legal interest from the date of filing of this complaint until fully paid;" and "ordering
defendant to pay plaintiff ten percent (10%) of the total amount due from defendant by
way of attorney's fees since no protacted trial was held in this case plus cost of suit,"
with the modification that "Allied shall pay the monetary award of attorney's fees and
costs of suit be deleted," is AFFIRMED. Costs against herein petitioner Allied AgriBusiness Development Co., Inc.

SO
ORDERED.
Davide,
Panganiban, and Quisumbing, JJ., concur

Jr.,

C.J.

(Chairman), Vitug,

[G.R. No. 132577. August 17, 1999]

PEOPLE OF THE PHILIPPINES, petitioner,
WEBB, respondent.

vs. HUBERT

JEFFREY

3.]

Jaci Alston Department of Motor Vehicle, Sacramento,

California, U.S.A.

4.]

Ami Smalley, Department of Motor Vehicles, Sacramento,

California, U.S.A.

P.

DECISION
5.]

John Pavlisin

YNARES-SANTIAGO, J.:
210 South Glasell, City of Orange, California, 92666, U.S.A.
Challenged in this petition for review on certiorari is the Decision of the Court of
Appeals in CA-G.R. SP No. 45399 entitled Hubert Jeffrey P. Webb v. Hon. Amelita
Tolentino, in her capacity as Presiding Judge of Branch 274 of the Regional Trial
Court of Paraaque, People of the Philippines and Lauro Vizconde which set aside
the order of respondent judge therein denying herein respondent Hubert Jeffrey P.
Webbs request to take the depositions of five (5) citizens and residents of the United
States before the proper consular officer of the Philippines in Washington D.C. and
California, as the case may be.
The factual and procedural antecedents are matters of record or are otherwise
uncontroverted.
Respondent Hubert Jeffrey P. Webb is one of the accused in Criminal Case No.
95-404 for Rape with Homicide entitled People of the Philippines v. Hubert Jeffrey P.
Webb, et al. presently pending before Branch 274 of the Regional Trial Court of
Paraaque, presided by Judge Amelita G. Tolentino.
During the course of the proceedings in the trial court, respondent filed on May
2, 1997, a Motion To Take Testimony By Oral Deposition [1] praying that he be allowed
to take the testimonies of the following:
1.]

Steven Bucher
Acting Chief, Records Services Branch U.S. Department of
Justice Immigration and Naturalization Service 425 Eye Street, N.W.
Washington D.C. 20536 U.S.A.

2.]

Debora Farmer
Records Operations, Office of Records U.S.,Department of
Justice Immigration and Naturalization Service, Washington D.C.,
U.S.A.

before the general consul, consul, vice-consul or consular agent of the Philippines in
lieu of presenting them as witnesses in court alleging that the said persons are all
residents of the United States and may not therefore be compelled by subpoena to
testify since the court had no jurisdiction over them.
Respondent further alleged that the taking of the oral depositions of the
aforementioned individuals whose testimonies are allegedly material and
indispensable to establish his innocence of the crime charged is sanctioned by
Section 4, Rule 24 of the Revised Rules of Court which provides that:
SEC. 4. Use of depositions. At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
(a)
Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness;
(b)
The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or private
corporation, partnership, or association which is a party may be used by an adverse
party for any purpose;
(c)
The deposition of a witness whether or not a party, may be used by
any party for any purpose if the court finds: (1) that the witness is dead; (2) that the
witness is out of the province and a greater distance than fifty (50) kilometers from
the place of trial or hearing, or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition; or (3) that the witness is
unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4)
that the party offering the deposition has been unable to procure the attendance of
the witness by subpoena or (5) upon application and notice, that such exceptional

circumstances exist as to make it desirable in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used;
(d)
If only part of a deposition is offered in evidence by a party, the
adverse party may require him to introduce all of it which is relevant to the part
introduced and any party may introduce any other parts. (italics supplied).

examination must be conducted before an inferior court; and c.] The examination of
the witnesses must be done in open court.
In his Comment,[8] private respondent Lauro Vizconde sought the dismissal of
the petition contending that:
1.]

The prosecution thereafter filed an opposition to the said motion averring

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

a.]
The public respondent correctly held that Rule 23,
Section 1 of the 1997 Revised Rules of Civil Procedure finds no
application in criminal actions such as the case at bar.
b.]
The public respondent correctly ruled that Rule 119,
Section 4 of the Rules of Criminal Procedure only provides for
conditional examination of witnesses before trial but not during trial.

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

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

A motion for reconsideration[4] thereto on the grounds that: 1.] The 1997 Rules
of Court expressly allows the taking of depositions, and 2.] Section 11 of Rule 23 of
the 1997 Rules of Court expressly allows the taking of depositions in foreign countries
before a consul general, consul, vice-consul or consular agent of the Republic of the
Philippines, was likewise denied by the trial court in an order dated July 25, 1997.[5]
Dissatisfied, respondent elevated his cause to the Court of Appeals by way of a
petition for certiorari[6] naming as respondents therein the Presiding Judge Amelita G.
Tolentino, the People and private complainant Lauro Vizconde. In the petition,
docketed as CA-G.R. SP No. 45399, respondent Webb argued that: 1.] The taking of
depositions pending action is applicable to criminal proceedings; 2.] Depositions by
oral testimony in a foreign country can be taken before a consular officer of the
Philippine Embassy in the United States; and, 3.] He has the right to completely and
fully present evidence to support his defense and the denial of such right will violate
his constitutional right to due process.
Commenting[7] on the petition, the People contended that the questioned orders
of the Presiding Judge are well within the sphere of her judicial discretion and do not
constitute grave abuse of discretion amounting to lack or excess of jurisdiction and
that if at all, they may be considered merely as errors of judgment which may be
corrected by appeal in due time because: a.] The motion failed to comply with the
requirements of Section 4, Rule 119 of the Rules of Court; b.] The conditional

The public respondent did not commit grave abuse of

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

2.]

The public respondent did not commit any grave abuse of

discretion in denying petitioner Webbs motion to take testimony by oral
deposition considering that the proposed deposition tends only to
further establish the admissibility of documentary exhibits already
admitted in evidence by the public respondent.

On February 6, 1998, the Fourth Division [9] of the Court of Appeals rendered
judgment,[10] the dispositive portion of which reads:
WHEREFORE, the petition is GRANTED. The orders of respondent judge dated 11
June 1997 (Annex A of the Petition) and 25 July 1997 (Annex B of the Petition) are
hereby ANNULLED and SET ASIDE. It is hereby ordered that the deposition of the
following witnesses be TAKEN before the proper consular officer of the Republic of
the Philippines in Washington D.C. and California, as the case may be:
(a)

Mr. Steven Bucher;

(b)

Ms. Deborah Farmer;

(e)

(c)

Mr. Jaci Alston;

(d)

Ms. Ami Smalley; and

IN RULING THAT RESPONDENT WAS DEPRIVED OF DUE PROCESS OF LAW BY

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

Mr. John Pavlisin.

SO ORDERED.
From the foregoing, the People forthwith elevated its cause to this Court by way
of the instant petition dispensing with the filing of a motion for reconsideration for the
following reasons: 1.] The rule that the petitioner should first file a motion for
reconsideration applies to the special civil action of certiorari under Rule 65 of the
1997 Rules of Civil Procedure and there is no similar requirement in taking an appeal
from a final judgment or order[11] such as the present appeal by certiorari; 2.] Section
4, Rule 45 in requiring a petition for review on certiorari which indicates that when a
motion for new trial or reconsideration, if any, was filed implies that petitioner need
not file a motion for reconsideration; 3.] The questions being raised before the Court
are the same as those which were squarely raised before the Court of Appeals; [12] 4.]
The issues being raised here are purely legal; [13] 5.] There is an urgent need to
resolve the issues considering that the trial of the accused in the criminal case is
about to end; and, 6.] The nature of this case requires a speedy and prompt
disposition of the issues involved.[14]
What are challenged before this Court are interlocutory orders and not a final
judgment. The respondent has filed his Comment [15] which We treat as an
Answer. The petitioner, in turn, filed a Reply.[16] The petition is ripe for decision.
In urging this Tribunal to exercise its power of review over the assailed decision
of the Appellate Court, petitioner asserts that the Court of Appeals committed serious
and reversible error
I
IN RULING THAT RULE 23 OF THE 1997 RULES OF CIVIL PROCEDURE IS
APPLICABLE TO CRIMINAL PROCEEDINGS.
II
IN RULING THAT THE DEPOSITION MAY BE TAKEN BEFORE A CONSULAR
OFFICER OF THE PHILIPPINES WHERE THE PROSPECTIVE WITNESSES
RESIDE OR ARE OFFICIALLY STATIONED.
III

In setting aside the order of the trial judge, the Appellate Courts Fourth Division
reasoned, inter alia, thus:
Settled is the rule that the whole purpose and object of procedure is to make the
powers of the court fully and completely available for justice. Thus, as the Supreme
Court has ruled in Manila Railroad Co. vs. Attorney General and reiterated in
subsequent cases:
x x x The most perfect procedure that can be devised is that which give the
opportunity for the most complete and perfect exercise of the powers of the court
within the limitations set by natural justice. It is that one which, in other words, gives
the most perfect opportunity for the powers of the court to transmute themselves into
concrete acts of justice between the parties before it. The purpose of such a
procedure is not to restrict the jurisdiction of the court over the subject matter, but to
give it effective facility in righteous action. It may be said in passing that the most
salient objection which can be urged against procedure today is that it so restricts the
exercise of the courts powers by technicalities that part of its authority effective for
justice between the parties is many times an inconsiderable portion of the whole. The
purpose of procedure is not to thwart justice. Its proper aim is to facilitate the
application of justice to the rival claims of the contending parties. It was created not
to hinder and delay but to facilitate and promote the administration of justice. It does
not constitute the thing itself which the courts are always striving to secure the
litigants. It is designed as the means best adapted to obtain that thing. In other
words, it is a means to an end. It is the means by which the powers of the court are
made effective in just judgments. When it loses the character of the one and takes on
the other [,] the administration of justice becomes incomplete and unsatisfactory and
lays itself open to grave criticism.[17]
In the light of the foregoing judicial precedent, this Court finds that the public
respondent gravely abused her discretion in denying the motion to take the deposition
of the witnesses for petitioner. While petitioner had invoked Rule 23, Section 1 of the
Rules of Court, which is found under the general classification of Civil Procedure, it
does not prevent its application to the other proceedings, provided the same is not
contrary to the specific rules provided therein. Indeed, the Rules of Court is to be
viewed and construed as a whole, and if the Supreme Court had compartmentalized
the same into four divisions, it was, as petitioner had claimed, for the purpose of
organization and expediency and not, for exclusivity.

To be sure, a reading of the rules on criminal procedure, specifically Section 4, Rule

119 vis--vis Section 1, Rule 23 would reveal no inconsistency so as to exclude the
application of the latter rule in criminal proceedings. Section 4, Rule 119 refers to the
conditional examination of witnesses for the accused before trial, while Section 1,
Rule 23 refers to the taking of deposition witnesses during trial. x x x
xxx

xxx

xxx

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

xxx

sought to secure the testimonies of his witnesses through the process of taking their
depositions pending the trial of Criminal Case No. 95-404 in the court below under
Rule 23 of the Rules of Court. In any event, the prosecution would have the
opportunity to cross-examine the witnesses for accused Hubert Webb (petitioner
herein) since they will be given the opportunity to cross-examine the deponents as in
accordance with Sections 3 to 18 of Rule 132.[19]

xxx

Even granting arguendo that Rule 23 is to be exclusively applied to civil actions, the
taking of the deposition of petitioners US-based witnesses should be still allowed
considering that the civil action has been impliedly instituted in the criminal action for
rape with homicide. Since public respondent has jurisdiction over the civil case to
recover damages, she exercised full authority to employ all auxillary writs, processes
and other means to carry out the jurisdiction conferred and [to] adopt any suitable
process or mode of proceeding which includes the application of the rule on
depositions pending action under Rule 23 in the case pending before her.
Second. Depositions obtained during trial in a foreign state or country may be taken
before a consular officer of the Republic of the Philippines where the deponent
resides or is officially stationed.[18]Section 5, Rule 119 of the Rules of Court is thus
clearly inapplicable in the instant case since the same relates to the examination of
witnesses under Section 4 thereof and not Section 1 of Rule 23. Consistent with the
procedure provided [for] under Rule 23, the deposition of the petitioners witnesses,
which include four (4) officials of the United States government, will be taken before a
consular officer of the Philippines where these witnesses reside or are officially
stationed, as the case may be.
The denial of petitioners right to present his witnesses, who are residing abroad,
based on a very shaky technical ground, is tantamount to depriving him of his
constitutional right to due process. This Court recognizes the impossibility of
enforcing the right of petitioner to secure the attendance of the proposed witnesses
through compulsory process considering that they are beyond the jurisdiction of
Philippine Courts. Petitioner, however, is not without any remedy and he correctly

Furthermore, no prejudice would be suffered in the taking of the depositions of

petitioners US-based witness[es]. On the other hand, a denial of the same would be
prejudicial to petitioner-accused since he would be denied an opportunity to
completely present his evidence, which strikes at the very core of the due process
guarantee of the Constitution. To reiterate, it is not the function of this Court to
second-guess the trial court on its ruling on the admissibility of the pieces of
documentary evidence as well as the latters witnesses,[20] but it is definitely within this
courts inherent power to scrutinize, as it does in the case at bench, the acts of
respondent judge and declare that she indeed committed grave abuse of discretion in
issuing the questioned Orders.
In the final analysis, this Court rules that the denial of the deposition-taking amounts
to the denial of the constitutional right to present his evidence and for the production
of evidence in his behalf. The denial is not justified by the flimsy reason that Sec. 1 of
Rule 23 of the Rules of Court is not applicable to criminal proceedings. To rule that
petitioner cannot take the testimony of these witnesses by deposition is to put [a]
premium on technicality at the expense of the constitutional rights of the accused,
which this court is not inclined to do. Particularly where the issue of the guilt or
innocence of petitioner is bound to hinge heavily upon the testimonies of his USbased witnesses, it behooves upon public respondent not only to guarantee that
accused is given a reasonable opportunity to present his evidence, but also to allow
him a certain latitude in the presentation of his evidence, lest he may be so hampered
that the ends of justice may eventually be defeated or appear to be defeated. Finally,
even if respondents contention is correct, it cannot be denied that the case at bar
includes the recovery of the civil liability of the accused, which normally is done
through a civil case.
We disagree.
As defined, a deposition is "The testimony of a witness taken upon oral question or written interrogatories, not in
open court, but in pursuance of a commission to take testimony issued by a court, or
under a general law or court rule on the subject, and reduced to writing and duly
authenticated, and intended to be used in preparation and upon the trial of a civil or
criminal prosecution. A pretrial discovery device by which one party (through his or
her attorney) asks oral questions of the other party or of a witness for the other

party. The person who is deposed is called the deponent. The deposition is
conducted under oath outside of the court room, usually in one of the lawyers
offices. A transcript - word for word account - is made of the deposition. Testimony of
[a] witness, taken in writing, under oath or affirmation, before some judicial officer in
answer to questions or interrogatories x x x.[21]
and the purposes of taking depositions are to: 1.] Give greater assistance to the
parties in ascertaining the truth and in checking and preventing perjury; 2.] Provide an
effective means of detecting and exposing false, fraudulent claims and defenses; 3.]
Make available in a simple, convenient and inexpensive way, facts which otherwise
could not be proved except with great difficulty; 4.] Educate the partiesin advance of
trial as to the real value of their claims and defenses thereby encouraging
settlements; 5.]Expedite litigation; 6.] Safeguard against surprise; 7.] Prevent
delay; 8.] Simplify and narrow the issues; and 9.] Expedite and facilitate both
preparation and trial.[22] As can be gleaned from the foregoing, a deposition, in
keeping with its nature as a mode of discovery, should be taken before and not during
trial. In fact, rules on criminal practice - particularly on the defense of alibi, which is
respondents main defense in the criminal proceedings against him in the court below
- states that when a person intends to rely on such a defense, that person must move
for the taking of the deposition of his witnesses within the time provided for filing a
pre-trial motion.[23]
It needs to be stressed that the only reason of respondent for seeking the
deposition of the foreign witnesses is to foreclose any objection and/or rejection of,
as the case may be, the admissibility of Defense Exhibits 218 and 219. This issue
has, however, long been rendered moot and academic by the admission of the
aforementioned documentary exhibits by the trial court in its order dated July 10,
1998.[24]
In fact, a circumspect scrutiny of the record discloses that the evidence to be
obtained through the deposition-taking would be superfluous or corroborative at
best. A careful examination of Exhibits 218 and 219 readily shows that these are
of the same species of documents which have been previously introduced and
admitted into evidence by the trial court in its order dated July 18, 1997 which We
noted in Webb, et al. v. People of the Philippines, et al.[25] wherein We pointed out,
among others, [t]hat respondent judge reversed this erroneous ruling and already
admitted these 132 pieces of evidence after finding that the defects in (their)
admissibility have been cured though the introduction of additional evidence during
the trial on the merits.[26]
Indeed, a comparison of Exhibit 218-A which is a U.S. Department of State
Certification issued by Joan C. Hampton, Assistant Authenticating Officer of the said
agency, for and in the name of Madeleine K. Albright, stating that the documents
annexed thereto were issued by the U.S. Department of Justice as shown by seal

embossed thereon,[27] with other exhibits previously offered as evidence reveals that
they are of the same nature as Exhibits 42-H [28] and 42-M.[29] The only difference in
the documents lies in the fact that Exhibit 218-A was signed by Joan C. Hampton for
and in behalf of the incumbent Secretary of State, Madeleine K. Albright whereas,
Exhibits 42-H and 42-M were signed by Authenticating Officer Annie R. Maddux for
and in behalf of former Secretary of State Warren Christopher.[30]
A comparison of Exhibit 218-B[31] with the other documentary exhibits offered
by respondent, likewise discloses that its contents are the same as Exhibits 42I[32] and 42-N.[33] The only difference in the three exhibits, which are actually
standard issue certification forms issued by the U.S. Department of Justice with
blanks to be filled up, is that Exhibit 218-B is dated February 5, 1997 and signed by
one of the U.S. Attorney Generals several Deputy Assistant Attorneys for
Administration for and in her behalf, while Exhibits 42-I and 42-N are both dated
September 21, 1995 with another of the said deputies signing both documents.[34]
Still comparing respondents Exhibit 218-F,[35] which is likewise a standard
issue U.S. Department of Justice Certification Form, with other documents previously
introduced as evidence reveals that it is the same as Exhibits 39-D[36] and 42C.[37] The only differences in these documents are that Exhibit 218-F is dated
October 13, 1995 and is signed by Debora A. Farmer while Exhibits "-39-D and 42C are both dated August 31, 1995 and signed by Cecil G. Christian, Jr., Assistant
Commissioner, Officer of Records, INS.[38]
Still further scrutinizing and comparing respondents Exhibit 218-G [39] which
was also introduced and admitted into evidence as Defense Exhibit 207-B [40] shows
that the document has been earlier introduced and admitted into evidence by the trial
court an astounding seven (7) times, particularly as Exhibits 34-A, 35-F, 39-E,
42-D, 42-P, 50 and 50-F.[41] The only difference in these documents is that they
were printed on different dates. Specifically, Exhibits 218-G as with Exhibits 34-A,
35-F, 50, and 52-F were printed out on October 26, 1995 [42] whereas Exhibit
207-B as with Exhibits 39-E, 42-D and 42-F were printed out on August 31,
1995.[43]
In fact, the records show that respondents: a.] application for Non-Commercial
Drivers License; b.] Documentary records based on Clets Database Response; c.]
Computer-generated thumb-print; d.] Documentary records based on still another
Clets Database Response, and e.] The Certification issued by one Frank Zolin,
Director of the State of Californias Department of Motor Vehicles, were already
introduced and admitted into evidence as Defense Exhibits 66-J, 66-K, 66-H, 66I and 66-L, respectively.[44]
It need not be overemphasized that the foregoing factual circumstances only
serves to underscore the immutable fact that the depositions proposed to be taken

from the five U.S. based witnesses would be merely corroborative or cumulative in
nature and in denying respondents motion to take them, the trial court was but
exercising its judgment on what it perceived to be a superfluous exercise on the belief
that the introduction thereof will not reasonably add to the persuasiveness of the
evidence already on record. In this regard, it bears stressing that under Section 6,
Rule 113 of the Revised Rules of Court:
SEC. 6. Power of the court to stop further evidence. - The court may stop the
introduction of further testimony upon any particular point when the evidence upon
it is already so full that more witnesses to the same point cannot be reasonably
expected to be additionally persuasive. But this power should be exercised with
caution. (emphasis and italics supplied.)
Needless to state, the trial court can not be faulted with lack of caution in
denying respondents motion considering that under the prevailing facts of the case,
respondent had more than ample opportunity to adduce evidence in his defense.
Certainly, a party can not feign denial of due process where he had the opportunity to
present his side.[45] It must be borne in mind in this regard that due process is not a
monopoly of the defense. Indeed, the State is entitled to due process as much as the
accused.[46] Furthermore, while a litigation is not a game of technicalities, it is a truism
that every casemust be prosecuted in accordance with the prescribed procedure to
insure an orderly and speedy administration of justice.[47]
The use of discovery procedures is directed to the sound discretion of the trial
judge.[48] The deposition taking can not be based nor can it be denied on flimsy
reasons.[49] Discretion has to be exercised in a reasonable manner and in consonance
with the spirit of the law. There is no indication in this case that in denying the motion
of respondent-accused, the trial judge acted in a biased, arbitrary, capricious or
oppressive manner. Grave abuse of discretion x x x implies such capricious, and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other
words where the power is exercised in an arbitrary and despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act all
in contemplation of law.[50]
Certiorari as a special civil action can be availed of only if there is concurrence of the
essential requisites, to wit: (a) the tribunal, board or officer exercising judicial
functions has acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or in excess or jurisdiction, and (b) there is no appeal,
nor any plain, speedy and adequate remedy in the ordinary course of law for the
purpose of annulling or modifying the proceeding. There must be a capricious,
arbitrary and whimsical exercise of power for it to prosper.[51]

To question the jurisdiction of the lower court or the agency exercising judicial or
quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65
of the Rules of Court. The petitioner in such cases must clearly show that the public
respondent acted without jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but
generally refers to capricious or whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to
an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.
It has been held, however, that no grave abuse of discretion may be attributed to a
court simply because of its alleged misappreciation of facts and evidence. A writ of
certiorari may not be used to correct a lower tribunal's evaluation of the evidence and
factual findings. In other words, it is not a remedy for mere errors of judgment, which
are correctible by an appeal or a petition for review under Rule 45 of the Rules of
Court.
In fine, certiorari will issue only to correct errors of jurisdiction, not errors of
procedure or mistakes in the findings or conclusions of the lower court. As long as a
court acts within its jurisdiction, any alleged errors committed in the exercise of its
discretion will amount to nothing more than errors of judgment which are reviewable
by timely appeal and not by special civil action for certiorari.[52]
Whether or not the respondent-accused has been given ample opportunity to
prove his innocence and whether or not a further prolongation of proceedings would
be dilatory is addressed, in the first instance, to the sound discretion of the trial
judge. If there has been no grave abuse of discretion, only after conviction may this
Court examine such matters further. It is pointed out that the defense has already
presented at least fifty-seven (57) witnesses and four hundred sixty-four (464)
documentary exhibits, many of them of the exact nature as those to be produced or
testified to by the proposed foreign deponents. Under the circumstances, We sustain
the proposition that the trial judge commits no grave abuse of discretion if she
decides that the evidence on the matter sought to be proved in the United States
could not possibly add anything substantial to the defense evidence involved. There
is no showing or allegation that the American public officers and the bicycle store
owner can identify respondent Hubert Webb as the very person mentioned in the
public and private documents. Neither is it shown in this petition that they know, of
their own personal knowledge, a person whom they can identify as the respondentaccused who was actually present in the United States and not in the Philippines on
the specified dates.
WHEREFORE, in view of all the foregoing, the petition is hereby
GRANTED. The Decision of the Court of Appeals dated February 6, 1998 in CA-G.R.

SP No. 45399 is hereby REVERSED and SET ASIDE. The Regional Trial Court of
Paraaque City is ordered to proceed posthaste in the trial of the main case and to
render judgment therein accordingly.
SO ORDERED.
Kapunan, and Pardo, JJ., concur.
Davide, Jr., C.J., see separate opinion.
Puno, J., see concurring opinion.

G.R. No. 185145

February 5, 2014

SPOUSES VICENTE AFULUGENCIA and LETICIA AFULUGENCIA, Petitioners,

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

Meycauayan, Bulacan covered by Transfer Certificate of Title No. 20411 (M). The
Motion contained a notice of hearing written as follows:
NOTICE
The Branch Clerk of Court
Regional Trial Court
Branch 7, Malolos, Bulacan

DECISION
Greetings:
DEL CASTILLO, J.:
Section 6,1 Rule 25 of the Rules of Court (Rules) provides that "a party not served
with written interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give a deposition pending appeal." The provision seeks
to prevent fishing expeditions and needless delays. Its goal is to maintain order and
facilitate the conduct of trial.
Assailed in this Petition for Review on Certiorari2 are the April 15, 2008 Decision3 of
the Court of Appeals (CA) in CA-G.R. SP No. 99535 which dismissed petitioners'
Petition for Certiorari for lack of merit and its October 2, 2008 Resolution4 denying
petitioners' Motion for Reconsideration.5
Factual Antecedents
Petitioners, spouses Vicente and Leticia Afulugencia, filed a Complaint6 for
nullification of mortgage, foreclosure, auction sale, certificate of sale and other
documents, with damages, against respondents Metropolitan Bank & Trust Co.
(Metrobank) and Emmanuel L. Ortega (Ortega) before the Regional Trial Court (RTC)
of Malolos City, where it was docketed as Civil Case No. 336-M-2004 and assigned to
Branch 7.
Metrobank is a domestic banking corporation existing under Philippine laws, while
Ortega is the Clerk of Court and Ex-Officio Sheriff of the Malolos RTC.
After the filing of the parties pleadings and with the conclusion of pre-trial, petitioners
filed a Motion for Issuance of Subpoena Duces Tecum Ad Testificandum7 to require
Metrobanks officers8 to appear and testify as the petitioners initial witnesses during
the August 31, 2006 hearing for the presentation of their evidence-in-chief, and to
bring the documents relative to their loan with Metrobank, as well as those covering
the extrajudicial foreclosure and sale of petitioners 200-square meter land in

Please submit the foregoing motion for the consideration and approval of the Hon.
Court immediately upon receipt hereof.
(signed)
Vicente C. Angeles9
Metrobank filed an Opposition10 arguing that for lack of a proper notice of hearing, the
Motion must be denied; that being a litigated motion, the failure of petitioners to set a
date and time for the hearing renders the Motion ineffective and pro forma; that
pursuant to Sections 1 and 611 of Rule 25 of the Rules, Metrobanks officers who are
considered adverse parties may not be compelled to appear and testify in court for
the petitioners since they were not initially served with written interrogatories; that
petitioners have not shown the materiality and relevance of the documents sought to
be produced in court; and that petitioners were merely fishing for evidence.
Petitioners submitted a Reply12 to Metrobanks Opposition, stating that the lack of a
proper notice of hearing was cured by the filing of Metrobanks Opposition; that
applying the principle of liberality, the defect may be ignored; that leave of court is not
necessary for the taking of Metrobanks officers depositions; that for their case, the
issuance of a subpoena is not unreasonable and oppressive, but instead favorable to
Metrobank, since it will present the testimony of these officers just the same during
the presentation of its own evidence; that the documents sought to be produced are
relevant and will prove whether petitioners have paid their obligations to Metrobank in
full, and will settle the issue relative to the validity or invalidity of the foreclosure
proceedings; and that the Rules do not prohibit a party from presenting the adverse
party as its own witness.
Ruling of the Regional Trial Court
On October 19, 2006, the trial court issued an Order13 denying petitioners Motion for
Issuance of Subpoena Duces Tecum Ad Testificandum, thus:

The motion lacks merit.

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

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

SO ORDERED.18

In view of the foregoing, and for lack of merit, the motion under consideration is
hereby DENIED.
SO ORDERED.14
Petitioners filed a Motion for Reconsideration15 pleading for leniency in the application
of the Rules and claiming that the defective notice was cured by the filing of
Metrobanks Opposition, which they claim is tantamount to notice. They further
argued that Metrobanks officers who are the subject of the subpoena are not
party-defendants, and thus do not comprise the adverse party; they are individuals
separate and distinct from Metrobank, the defendant corporation being sued in the
case.
In an Opposition16 to the Motion for Reconsideration, Metrobank insisted on the
procedural defect of improper notice of hearing, arguing that the rule relative to
motions and the requirement of a valid notice of hearing are mandatory and must be
strictly observed. It added that the same rigid treatment must be accorded to Rule 25,
in that none of its officers may be summoned to testify for petitioners unless written
interrogatories are first served upon them. Finally, it said that since a corporation may
act only through its officers and employees, they are to be considered as adverse
parties in a case against the corporation itself.
In another Order17 dated April 17, 2007, the trial court denied petitioners Motion for
Reconsideration. The trial court held, thus:
Even if the motion is given consideration by relaxing Sections 4 and 5, Rule 15 of the
Rules of Court, no such laxity could be accorded to Sections 1 and 6 of Rule 25 of the
Revised Rules of Court which require prior service of written interrogatories to
adverse parties before any material and relevant facts may be elicited from them
more so if the party is a private corporation who could be represented by its officers
as in this case. In other words, as the persons sought to be subpoenaed by the
plaintiffs-movants are officers of the defendant bank, they are in effect the very
persons who represent the interest of the latter and necessarily fall within the
coverage of Sections 1 and 6, Rule 25 of the Revised Rules of Court.

Ruling of the Court of Appeals

Petitioners filed a Petition for Certiorari19 with the CA asserting this time that their
Motion for Issuance of Subpoena Duces Tecum Ad Testificandum is not a litigated
motion; it does not seek relief, but aims for the issuance of a mere process. For these
reasons, the Motion need not be heard. They likewise insisted on liberality, and the
disposition of the case on its merits and not on mere technicalities.20 They added that
Rule 2121 of the Rules requires prior notice and hearing only with respect to the taking
of depositions; since their Motion sought to require Metrobanks officers to appear and
testify in court and not to obtain their depositions, the requirement of notice and
hearing may be dispensed with. Finally, petitioners claimed that the Rules
particularly Section 10,22Rule 132 do not prohibit a party from presenting the
adverse party as its own witness.
On April 15, 2008, the CA issued the questioned Decision, which contained the
following decretal portion:
WHEREFORE, the petition is DISMISSED for lack of merit. The assailed orders dated
October 19, 2006 and April 17, 2007 in Civil Case No. 336-M-2004 issued by the
RTC, Branch 7, Malolos City, Bulacan, are AFFIRMED. Costs against petitioners.
SO ORDERED.23
The CA held that the trial court did not commit grave abuse of discretion in issuing the
assailed Orders; petitioners Motion is a litigated motion, especially as it seeks to
require the adverse party, Metrobanks officers, to appear and testify in court as
petitioners witnesses. It held that a proper notice of hearing, addressed to the parties
and specifying the date and time of the hearing, was required, consistent with
Sections 4 and 5,24 Rule 15 of the Rules.
The CA held further that the trial court did not err in denying petitioners Motion to
secure a subpoena duces tecum/ad testificandum, ratiocinating that Rule 25 is quite
clear in providing that the consequence of a partys 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 banks officers as their witnesses.

The CA declared that the justification for the rule laid down in Section 6 is that by
failing to seize the opportunity to inquire upon the facts through means available
under the Rules, petitioners should not be allowed to later on burden Metrobank with
court hearings or other processes. Thus, it held:
x x x Where a party unjustifiedly refuses to elicit facts material and relevant to his
case by addressing written interrogatories to the adverse party to elicit those facts,
the latter may not thereafter be compelled to testify thereon in court or give a
deposition pending appeal. The justification for this is that the party in need of said
facts having foregone the opportunity to inquire into the same from the other party
through means available to him, he should not thereafter be permitted to unduly
burden the latter with courtroom appearances or other cumbersome processes. The
sanction adopted by the Rules is not one of compulsion in the sense that the party is
being directly compelled to avail of the discovery mechanics, but one of negation by
depriving him of evidentiary sources which would otherwise have been accessible to
him.25
Petitioners filed their Motion for Reconsideration,26 which the CA denied in its assailed
October 2, 2008 Resolution. Hence, the present Petition.
Issues
Petitioners now raise the following issues for resolution:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERRORS IN REQUIRING
NOTICE AND HEARING (SECS. 4 AND 5, RULE 15, RULES OF COURT) FOR A
MERE MOTION FOR SUBPOENA OF RESPONDENT BANKS OFFICERS WHEN
SUCH REQUIREMENTS APPLY ONLY TO DEPOSITION UNDER SEC. 6, RULE 25,
RULES OF COURT.
II

issuance of process. They insist that a motion which is subject to notice and hearing
under Sections 4 and 5 of Rule 15 is an application for relief other than a pleading;
since no relief is sought but just the process of subpoena, the hearing and notice
requirements may be done away with. They cite the case of Adorio v. Hon.
Bersamin,28 which held that
Requests by a party for the issuance of subpoenas do not require notice to other
parties to the action.1wphi1 No violation of due process results by such lack of
notice since the other parties would have ample opportunity to examine the witnesses
and documents subpoenaed once they are presented in court.29
Petitioners add that the Rules should have been liberally construed in their favor, and
that Metrobanks filing of its Opposition be considered to have cured whatever defect
the Motion suffered from.
Petitioners likewise persist in the view that Metrobanks officers the subject of the
Motion do not comprise the adverse party covered by the rule; they insist that these
bank officers are mere employees of the bank who may be called to testify for them.
Respondents Arguments
Metrobank essentially argues in its Comment30 that the subject Motion for the
issuance of a subpoena duces tecum/ad testificandum is a litigated motion, especially
as it is directed toward its officers, whose testimony and documentary evidence would
affect it as the adverse party in the civil case. Thus, the lack of a proper notice of
hearing renders it useless and a mere scrap of paper. It adds that being its officers,
the persons sought to be called to the stand are themselves adverse parties who may
not be compelled to testify in the absence of prior written interrogatories; they are not
ordinary witnesses whose presence in court may be required by petitioners at any
time and for any reason.
Finally, Metrobank insists on the correctness of the CA Decision, adding that since
petitioners failed up to this time to pay the witnesses fees and kilometrage as
required by the Rules,31 the issuance of a subpoena should be denied.

THE COURT OF APPEALS COMMITTED (REVERSIBLE) ERROR IN HOLDING

THAT THE PETITIONERS MUST FIRST SERVE WRITTEN INTERROGATORIES TO
RESPONDENT BANKS OFFICERS BEFORE THEY CAN BE SUBPOENAED.27

Our Ruling
The Court denies the Petition.

Petitioners Arguments
Praying that the assailed CA dispositions be set aside and that the Court allow the
issuance of the subpoena duces tecum/ad testificandum, petitioners assert that the
questioned Motion is not a litigated motion, since it seeks not a relief, but the

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

Nonetheless, contrary to petitioners submission, the case of Adorio cannot apply

squarely to this case. In Adorio, the request for subpoena duces tecum was sought
against bank officials who were not parties to the criminal case for violation of Batas
Pambansa Blg. 22. The situation is different here, as officers of the adverse party
Metrobank are being compelled to testify as the calling partys main witnesses;
likewise, they are tasked to bring with them documents which shall comprise the
petitioners principal evidence. This is not without significant consequences that affect
the interests of the adverse party, as will be shown below.
As a rule, in civil cases, the procedure of calling the adverse party to the witness
stand is not allowed, unless written interrogatories are first served upon the latter.
This is embodied in Section 6, Rule 25 of the Rules, which provides
Sec. 6. Effect of failure to serve written interrogatories.
Unless thereafter allowed by the court for good cause shown and to prevent a failure
of justice, a party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending appeal.
One of the purposes of the above rule is to prevent fishing expeditions and needless
delays; it is there to maintain order and facilitate the conduct of trial. It will be
presumed that a party who does not serve written interrogatories on the adverse party
beforehand will most likely be unable to elicit facts useful to its case if it later opts to
call the adverse party to the witness stand as its witness. Instead, the process could
be treated as a fishing expedition or an attempt at delaying the proceedings; it
produces no significant result that a prior written interrogatories might bring.

unfair court practices such as fishing for evidence, badgering, or altogether ruining
their own cases. Ultimately, such unnecessary processes can only constitute a waste
of the courts precious time, if not pointless entertainment.
In the present case, petitioners seek to call Metrobanks officers to the witness stand
as their initial and main witnesses, and to present documents in Metrobanks
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 Metrobanks officers who are considered
adverse parties as well, based on the principle that corporations act only through their
officers and duly authorized agents34 as their main witnesses; nor may they be
allowed to gain access to Metrobanks documentary evidence for the purpose of
making it their own. This is tantamount to building their whole case from the evidence
of their opponent. The burden of proof and evidence falls on petitioners, not on
Metrobank; if petitioners cannot prove their claim using their own evidence, then the
adverse party Metrobank may not be pressured to hang itself from its own defense.
It is true that under the Rules, a party may, for good cause shown and to prevent a
failure of justice, be compelled to give testimony in court by the adverse party who
has not served written interrogatories. But what petitioners seek goes against the very
principles of justice and fair play; they would want that Metrobank provide the very
evidence with which to prosecute and build their case from the start. This they may
not be allowed to do.

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

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.

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.

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

Thus, the rule not only protects the adverse party from unwarranted surprises or
harassment; it likewise prevents the calling party from conducting a fishing expedition
or bungling its own case. Using its own judgment and discretion, the court can hold its
own in resolving a dispute, and need not bear witness to the parties perpetrating

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

SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

G.R. No. 175730

July 5, 2010

HERMINIO T. DISINI, Petitioner,

vs.
THE HONORABLE SANDIGANBAYAN, THE REPUBLIC OF THE PHILIPPINES, as
represented by the OFFICE OF THE SOLICITOR GENERAL (OSG), and the
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Respondents.

rights to due process and fair play, and the arbitrary acts of respondent court
which effectively ousted it of jurisdiction to hear the case.3
In sum, petitioner assails the Sandiganbayans refusal to set aside its Order of Default
against petitioner, as well as its acts which allegedly reveal its inclination to "railroad"
the proceedings and render a precipitate judgment by default against petitioner.4
Factual Antecedents

DECISION
DEL CASTILLO, J.:
The simultaneous availment of judicial remedies from different fora for exactly the
same ultimate relief and involving the same issue constitutes forum-shopping. It is a
prohibited malpractice, condemned for trifling with the courts and their processes.
The Case
The instant Petition for Certiorari and Prohibition1 under Rule 65 of the Rules of Court
seeks to:
1. Annul the December 18, 2006 Resolution of
the Sandiganbayan (respondent court), which denied petitioners Motion to
Lift Default Order and to Admit Answer, and consequently allowed
respondent Republic to present evidence ex-parte in Civil Case No. 0013
entitled "Republic of the Philippines v. Herminio T. Disini, et al.;"
2. Annul the orders or declarations made by the Sandiganbayan in open
court during the hearing of December 8, 2006, which prevented petitioner
from commenting ad cautelam on the Republics Urgent Manifestation and
Motion (hereinafter the Urgent Manifestation and Motion) to Present
Evidence Ex-Parte;2
3. Prohibit the Sandiganbayan from continuing with the ex-parte proceedings
and rendering a judgment by default;
4. Secure injunctive relief to enjoin the Sandiganbayan from conducting
further proceedings in Civil Case No. 0013 and from rendering judgment on
the basis of the ex-parte proceedings; and
5. Declare null and void all the proceedings conducted as against petitioner
because of lack of jurisdiction over his person, violation of his Constitutional

On July 23, 1987, the Republic (through the Presidential Commission on Good
Government [PCGG]) filed with theSandiganbayan a civil complaint for reconveyance,
reversion, accounting, restitution, and damages against petitioner Herminio T. Disini
(Disini), spouses Ferdinand and Imelda Marcos (Marcos spouses) and Rodolfo B.
Jacob (Jacob).5 The same was docketed as Civil Case No. 0013 and assigned to the
First Division of theSandiganbayan (respondent court). Summons for Disini was
issued on July 29, 1987.6 Per Sheriffs Return dated September 4, 1987,7 the
summons8 was unserved on the ground that petitioner did not live at the given
address, which was No. 92 Kennedy St., Greenhills, San Juan, Metro Manila. The
occupants of said address were the Roman family.
On August 26, 1987,9 the Complaint was amended10 to include Rafael A. Sison
(Sison) as a party-defendant.11
The Amended Complaint alleged that Disini acted in unlawful concert with his codefendants in acquiring and accumulating ill-gotten wealth through the
misappropriation of public funds, plunder of the nations wealth, extortion,
embezzlement, and other acts of corruption.12
The Sandiganbayan issued summons on the Amended Complaint on September 3,
1987.13 On September 15, 1987, the Sandiganbayan Deputy Sheriff proceeded to the
same address, No. 92 Kennedy Street, Greenhills, San Juan, Metro Manila. Again,
the summons was returned unserved for the reason that the Roman family occupied
the said residence.14
In the meantime, petitioners co-defendants, Sison15 and Jacob,16 filed their respective
answers, while the Marcos spouses were declared in default17 for failure to file their
responsive pleadings despite valid service of summons.18
After the lapse of two years without any progress in the case, Jacob filed an Omnibus
Motion for theSandiganbayan to either set the case for pre-trial or to dismiss the
same with respect to Jacob for failure to prosecute.19 Jacob argued that there was no
excuse for the delay in prosecuting the case. He reasoned that, if summons could not

be served on his co-defendant Disini within a reasonable time, the prosecution should
have moved to exclude Disini from the complaint so that the case could be disposed
of one way or another instead of being left pending indefinitely.

Heeding the Sandiganbayans warning, the Office of the Solicitor General filed its
Manifestation and Urgent Motion to Drop Rafael Sison as Party-Defendant on March
14, 1997.28

The Sandiganbayan denied Jacobs motion.20 It held that the Republic had not lacked
in efforts to ascertain Disinis whereabouts; hence, there is no basis to rule that it
failed to prosecute the case. Nevertheless, it ordered the Republic to furnish the court
with the correct address of petitioner or to file a motion to show the reasonability of
expecting Disini to be summoned.

A year later, on April 8, 1998, the Republic filed an Ex Parte Motion for Leave to Serve
Summons by Publication.29 It stated that resort to service by publication was needed
because they could not ascertain Disinis whereabouts despite diligent efforts to do
so. While this motion was awaiting resolution five months later, the Republic filed an
Urgent Ex Parte Motion for Issuance of Alias Summons.30 It allegedly received
information that Disini had returned to the Philippines and could be served with
summons at No. 92 Kennedy Street, Greenhills, San Juan, Metro Manila. Alias
summons was issued but was returned unserved on the ground that Disini did not
occupy the said house, which belonged to the Roman family.31 Receiving information
that Disini was often seen at No. 35 Buchanan Street, Greenhills, San Juan, Metro
Manila, the sheriff proceeded to the new address only to find that it belonged to
petitioners cousin, Jesus Disini.32

In response, the Republic filed a Manifestation that it is still in the process of securing
alias summonses for the unserved defendants and will take steps to serve summons
by publication.21
On October 11, 1990, the Republic moved to drop Jacob as party-defendant
considering that he will testify as a witness for the Republic in its ill-gotten wealth
cases both here and abroad.22 It also sought several times to suspend the pre-trial on
various grounds such as the PCGGs vacillation regarding the grant of immunity in
favor of Jacob23 and the Republics admission that it still could not ascertain Disinis
whereabouts for purposes of service of summons. The Republic explained that it was
still trying to exhaust all efforts to make a personal or substituted service of summons
through the help of the Philippine consulate office in Austria, where Disini is believed
to be residing.24
On August 4, 1994, the Sandiganbayan resolved to grant the dismissal of the
complaint against Jacob with prejudice and ordered him dropped as partydefendant.251avvph!1
When it appeared that pre-trial could finally continue in 1995, the Republic again
moved for several resetting of pre-trial for reasons such as looking at the possibility of
granting immunity to petitioners other co-defendant, Sison, and the unavailability of
the solicitor assigned to the case.26
After displaying utmost liberality in the past as regards the postponement of the pretrial, the Sandiganbayanissued a strongly-worded Order on January 17, 1997, on
which date the Republic was still not ready to submit Sisons affidavit for the
consideration of the court. The Order reads:
Over the year, the matter of the affidavit [of Sison] remains unresolved. In the end,
this case is sought once more to be reset with no visible product for the effort.
Under the circumstances, should no action be taken thereon with finality on or before
March 14, 1997, the Court will assume that the government is not disposed to
prosecute this matter and will dismiss the case.27

Failing to serve summons personally on Disini, the Republic filed an Urgent Motion to
Resolve Motion for Leave to Serve Summons by Publication on October 3,
2001.33 While awaiting the resolution of the Urgent Motion, the Republic again
received information that petitioner has been regularly seen at the Wack Wack Golf
and Country Club in Mandaluyong City and at No. 57 Flamingo Street,
Greenmeadows Subdivision, Quezon City. Thus, the Republic sought again the
issuance of alias summons, without prejudice to the resolution of its previous Motion
for Leave for Issuance of Summons by Publication.34 The Sandiganbayan issued an
alias summons for Disini, but it was returned unserved.
On February 6, 2002, the Republic filed a Motion to Resolve (Ex Parte Motion for
Leave to Serve Summons by Publication).35 The same was granted36 and on April 23,
2002, the summons and the Amended Complaint were published in Peoples Tonight,
with a copy sent by registered mail to Disinis last known address, No. 92 Kennedy
Street, Greenhills, San Juan, Metro Manila.37 By August 27, 2002, petitioner was
declared in default for failure to file his responsive pleading within 60 days from the
publication of the summons.38
Since three of the party-defendants (Ferdinand Marcos, Imelda Marcos, and
petitioner) had been declared in default, while one was dropped to become state
witness (Jacob), Sison remained as the sole defendant who could participate in Civil
Case No. 0013. Given that there was a pending motion to drop Sison also as partydefendant, the Republic asked the Sandiganbayan to resolve the said motion so that
they could proceed with the ex parte presentation of evidence.39 The said motion was
submitted for resolution on September 20, 2002.40

On February 17, 2003, with the motion to drop Sison as party-defendant still pending,
the Republic asked theSandiganbayan to hold in abeyance the pre-trial until the said
motion had been resolved.41 On February 27, 2003, the Sandiganbayan clerk of court
sent notice of the cancellation of the pre-trial set for March 4, 2003.42
The records of the Sandiganbayan became silent from the year 2003 to 2006,
revealing an inaction that would only be broken by a foreign court that imposed a
deadline on the freeze orders of the Disini Swiss accounts. This development began
when petitioner Disinis wife and children filed a petition43 in a Swiss Federal Court to
remove a previously issued freeze order on their Swiss accounts. On August 18,
2006, the Swiss Federal Court rendered a partial decision44 ordering the counsel for
the Republic of the Philippines to submit a forfeiture order from a Philippine court with
regard to the assets of Liliana and Herminio Disini not later than December 30, 2006;
otherwise, the Swiss Federal Court would revoke the freeze order on the Disini Swiss
accounts.45
This deadline apparently spurred the Republic (through the PCGG) to file an Urgent
Manifestation and Motion46with the Sandiganbayan on November 30, 2006. The
Republic prayed for the resolution of its Urgent Motion to Resolve (its motion to drop
Rafael Sison as party-defendant).47 Should the resolution of this pending motion be
favorable to the Republic, it likewise prayed for the setting of the ex parte presentation
of evidence at an early date.
On December 7, 2006, petitioner Disini filed a Motion to Lift Order of Default and for
Leave to File and Admit Attached Answer,48 together with an Answer to Amended
Complaint with Compulsory Counterclaims.49 He maintained that he was unaware of
the civil case pending against him because he never received summons or other
processes from the court, nor any pleadings from the parties of the case. His only
fault, he averred, was that he was ignorant of the proceedings in the case because of
the absence of a proper notice. Petitioner asked the respondent court to look at his
meritorious defenses. He then invoked the liberality of the courts in lifting default
orders to give both parties every opportunity to defend their cases, and pointed out
that the proceedings, being in their pre-trial stage, would not be delayed by
petitioners participation therein.
Petitioners Answer contained affirmative defenses such as the respondent courts
failure to acquire jurisdiction over his person through service by publication and the
failure of the Amended Complaint to state a cause of action against him.
With the two motions pending before it, the Sandiganbayan heard the Republic on its
Urgent Manifestation and Motion on December 8, 2006. Petitioner Disinis lawyers
were present during the hearing but were not allowed to participate therein because
of the prevailing default order against Disini. The Sandiganbayan issued the following
Order at the end of the said hearing:

This morning, the Court heard the arguments of the counsel for [respondent]
regarding the latters "Urgent Manifestation and Motion" dated November 29, 2006.
The Court also gave the [respondent] a non-extendible period of three days counted
from today within which to file its comment on the Motion to Lift Order of Default filed
by [petitioner] Disini, and the latter is given a non-extendible period of three days from
December 11, 2006 or until December 14, 2006, within which to file his reply to the
comment of the [respondent], after which the incident shall be considered submitted
for resolution without need of oral arguments. The Court will act on the [respondent]s
"Urgent Manifestation and Motion" dated November 29, 2006 after the Court has
resolved the Motion to Lift Order of Default.
x x x x50
On December 11, 2006, the Republic filed its Comment/Opposition51 stating that it
exhausted all efforts to ascertain the whereabouts of petitioner Disini. Failing to do so,
the Republic resorted to service of summons by publication. This mode of service is
allowed under Sections 14 and 15 of Rule 14 considering that the forfeiture case is in
rem and the defendants address is unknown. The Republic explained that it filed its
Ex Parte Motion for Leave to Serve Summons by Publication because it received
information that petitioner had already gone to Austria. Clearly then, Disini was no
longer a resident of the Philippines. The Republic reiterated that the service of
summons by publication is proper considering that what is involved is a forfeiture
case, an action in rem, under Republic Act No. 1379, in relation to Executive Order
(EO) Nos. 1, 2, 14, and 14-A all issued by President Corazon C. Aquino.
As for petitioners allegation that the Republic was aware of Disinis address as shown
by the fact that summons were properly served at his correct address52 in two criminal
cases pending before the same First Division of theSandiganbayan, the Republic
pointed out that these criminal cases were filed on June 30, 2004, while respondents
Ex Parte Motion for Leave to Serve Summons by Publication was filed on April 8,
1998. Hence, at the time the Republic asked for service by publication, it was not yet
aware of petitioners correct address. Since petitioner failed to file his answer to a
validly served Amended Complaint, the motion to lift the order of default is utterly
lacking merit.
Petitioner Disini filed his Reply on December 14, 200653 basically expounding on the
arguments he stated in his Motion to Lift.
On December 15, 2006, the Sandiganbayan granted PCGGs motion to drop Sison as
party-defendant in Civil Case No. 0013,54 leaving only the defaulted defendants (i.e.,
the Marcos spouses and petitioner Disini) as parties to the case.
Ruling of the Sandiganbayan (Assailed Resolution)

On December 18, 2006, the Sandiganbayan resolved to deny55 petitioners Motion to

Lift Default Order.
The Sandiganbayan held that the Republic exerted diligence in ascertaining
petitioners whereabouts as evidenced by the two motions it filed for the issuance of
alias summons. The Sandiganbayan looked favorably at the Republics efforts to
personally serve the summons on petitioner despite the pendency of its Ex Parte
Motion for Leave to Serve Summons by Publication. It held that the Republics
determination to serve summons at the places where the petitioner was last heard of
to reside belies the petitioners claim that the Republic had intended to mislead the
court into service by publication all along. The Sandiganbayan likewise held that the
rules for a valid service of summons by publication were observed.
The Sandiganbayan did not find any indication that the Republic knew petitioners
actual residence when it sought leave to serve summons by publication in 1998 and
2001.
As for the argument that publication is not proper because the action is in personam,
the Sandiganbayan ruled that Civil Case No. 0013 is an action in rem for which
service by publication is proper. The case is in rem because it involves the forfeiture
of ill-gotten wealth based on EO No. 2,56 EO No. 1457 and No. 14-A58 promulgated by
former President Corazon Aquino by virtue of her legislative authority. It cited the case
of Republic v. Sandiganbayan and Marcos59 where the Court ruled that forfeiture
proceedings are civil actions in rem.
Given the validity of the service of summons, the respondent court held that
petitioners failure to file a responsive pleading within the allotted period resulted in
his default. The respondent court refused to lift the order of default on the ground that
there was no fraud, accident, mistake or excusable negligence that would justify such
an action.

on December 20, 2006, and instead require the [respondent] to file its written
comment on the above-said motion on or before December 22, 2006, after which the
motion shall be deemed submitted for resolution.62
Considering the difficulty in obtaining a quorum for the purpose of hearing the
Extremely Urgent Motion for Reconsideration dated December 19, 2006 of [petitioner]
Herminio T. Disini which was filed at the close of office hours on December 19, 2006,
the Court resolves to cancel the hearing on the above-said motion on December 20,
2006, and instead require the [respondent] to file its written comment on the abovesaid motion within a non-extendible period of three (3) days from receipt thereof, after
which the motion shall be deemed submitted for resolution, unless the parties or the
Court will set the matter for hearing anew after the submission of the above
comment.63
The Republics ex parte presentation of evidence held before
the Sandiganbayan Executive Clerk of Court began on December 20, 2006 as
evidenced by the transcript.64 While petitioner was not allowed to participate in the
said proceedings, he was notified thereof and his counsels were present to observe
the same.
On December 22, 2006, petitioner filed this Petition for Certiorari. On January 2,
2007, he filed a Supplement to the Petition for Certiorari and Prohibition65 protesting
the continuation of the ex parte proceedings before theSandiganbayan as a grave
abuse of discretion amounting to lack of jurisdiction. He also filed a Second
Supplemental Petition on January 5, 2007.66
Proceedings before the Sandiganbayan during the pendency of the instant Petition
for Certiorari and Prohibition
On August 7, 2007, the Sandiganbayan issued its Resolution67 denying petitioners
Extremely Urgent Motion for Reconsideration for lack of merit.

Petitioner then filed an Extremely Urgent Motion for Reconsideration60 and an

Extremely Urgent Manifestation and Motion61 on December 19, 2006. Aside from
asking for reconsideration, petitioner also prayed that the republics ex parte
presentation of evidence be held in abeyance until the resolution of his motion for
reconsideration.

The Republic presented 10 witnesses.68 It filed its Formal Offer of Evidence dated
October 17, 2008, which offer was admitted in the Resolution dated December 3,
2008.69 On February 11, 2009, the Republic filed its Memorandum.70

Petitioners motions were set for hearing on December 20, 2006 but the said hearing
did not take place. Instead, the Sandiganbayan issued the following orders on
December 19 and 20, 2006 respectively:

On July 7, 2009, despite the pendency of his Petition for Certiorari and Prohibition
with the Supreme Court, petitioner filed with the Sandiganbayan a Second Motion to
Lift the Order of Default71 dated August 27, 2002 the very same Order which is now
at the heart of the present petition.

Considering the difficulty in obtaining a quorum for the purpose of hearing the
Extremely Urgent Manifestation and Motion dated December 18, 2006 of [petitioner]
Herminio T. Disini, the Court resolves to cancel the hearing on the abovesaid motion

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

or Cross-Examine Plaintiffs Witnesses.72 On September 15, 2009, he also filed a
Motion to Expunge Evidence Presented Before the Clerk of Court.73

On September 23, 2009, petitioner filed with this Court a Motion for Leave to File
Supplemental Memorandum,74which was denied in a Resolution dated September 30,
2009.75

(b) Motion to Expunge Evidence Presented Before the Clerk of

Court,82 which prayed that all the evidence presented before the clerk of
court be stricken off the records for being taken in violation of the Rules;

On October 15, 2009, petitioner filed with the Sandiganbayan a Motion to Expunge
Rolando Gapuds Deposition taken on October 18-20, 1995.76 On October 19, 2009,
he filed a Motion to Expunge or Cross-Examine Plaintiffs witnesses.77

(c) Motion to Expunge Gapuds Deposition taken on 18-20 October

1995,83 which sought to remove from the records the deposition offered by
the Republic;

On February 18, 2010, petitioner filed with the Sandiganbayan a Supplement to the
Second Motion to Lift the Order of Default dated August 27, 2002 with Motion to Take
Judicial Notice.78 On March 4, 2010, he filed a Motion for Leave to Take Deposition.79

(d) Motion to Expunge Exhibits "FFF" and "GGG",84 which sought to strike off
the mentioned exhibits of respondents and asked the Sandiganbayan to
permit petitioner to cross-examine witness Jesus Disini;

Issues

(e) Motion for Consolidation,85 which prayed that Civil Case No. 0013 be
consolidated with Criminal Case Nos. 28001 and 28001; and

Petitioner raised the following issues for our consideration:

1. Whether the Sandiganbayan court gravely abused its discretion in not
lifting its default order against petitioner Disini
2. Whether the Sandiganbayan court gravely abused its discretion when it
allowed the Republic to present its evidence ex-parte while petitioners
Motion for Reconsideration [of the stay of the default order] had not yet been
resolved.80
Our Ruling
Issue of Validity of Service of Summons Mooted by Voluntary Appearance
In his Petition, petitioner originally sought the nullification of the proceedings before
the Sandiganbayan on the theory of lack of jurisdiction over his person, premised on
the alleged impropriety in the service of summons.
However, petitioner subsequently filed several motions with the Sandiganbayan which
sought various affirmative reliefs from that court, sans any qualification of the nature
of its appearance and without reserving or reiterating its previous objection on the
ground of lack of jurisdiction over the person. These motions are:
(a) Motion to Expunge Exhibits "A," "B," "C," "D," "E," "XX," "YY," "ZZ," "EE,"
and their Submarkings or Cross-Examine Plaintiffs Witness,81 which sought
to expunge various affidavits of the Republics witnesses;

(f) Motion for Leave to Take Deposition based on Section 1 of Rule 23

(Depositions Pending Action or De Benne Esse).86
In regard to the last mentioned Motion for Leave to Take Deposition87 (which is the
last pleading on record), it is important to note that there are two instances when the
defendant can take depositions under Section 1 of Rule 23: (1) after the court has
acquired jurisdiction over the defendant or the property subject of the action; and (2)
after an answer has been served. Both instances presuppose that the court has
already acquired jurisdiction over the defendant. By seeking the relief contained in
this provision, petitioner is deemed to have voluntarily submitted himself to the
jurisdiction of the Sandiganbayan. Thus, petitioner may be held to have waived his
objections regarding the lack of jurisdiction over his person by seeking affirmative
relief through the said provision.
While petitioner bewailed the mode of service of summons on him and questioned
the Sandiganbayansjurisdiction 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.88
Issue of Non-Lifting of Default Order Dismissed for Forum-shopping
When petitioner filed this Petition on December 22, 2006 assailing
the Sandiganbayans December 18, 2006 Resolution, the latter was still the subject of
a pending Extremely Urgent Motion for Reconsideration filed by petitioner with
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,89which could have warranted the outright dismissal of the

petition. However, in light of the due process issues raised by petitioner and the very
real possibility that he had no other speedy remedy available to him, his Petition was
given due course.
Inexplicably, and in continuing disregard of the rules on forum-shopping and judicial
courtesy, petitioner raised again the same issue (validity of the default order and the
propriety of lifting said default order) in a Second Motion to Lift the Order of Default
dated August 27, 2002 which he filed with the Sandiganbayan after the latter denied
his Extremely Urgent Motion for Reconsideration.
This Second Motion to Lift the Order of Default was filed on July 27, 2009, admittedly
during the pendency of the instant Petition. Both remedies seek from different fora
exactly the same ultimate relief (lifting of the default order issued by
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.
There is forum shopping when one party repetitively avails of several judicial
remedies in different courts, simultaneously or successively, all substantially founded
on the same transactions and the same essential facts and circumstances, and all
raising substantially the same issues either pending in, or already resolved adversely,
by some other court.90 Forum shopping is a prohibited malpractice and condemned as
trifling with the courts and their processes.91 It is proscribed because it unnecessarily
burdens the courts with heavy caseloads, and unduly taxes the manpower and
financial resources of the judiciary.92 It is inimical to the orderly administration of
justice as it creates the possibility of conflicting decisions being rendered by two
courts,93 and opens the system to the possibility of manipulation.94
In filing a Second Motion to Lift the Order of Default with the Sandiganbayan while the
instant Petition is pending with this Court, petitioner has unfairly doubled his chances
of securing the lifting of the default order. "This misdeed amounts to a wagering on
the result of [petitioners] twin devious strategies, and shows not only [his] lack of faith
in this Court in its evenhanded administration of law but also [his] expression of
disrespect if not ridicule for our judicial process and orderly procedure."95
The situation here is strikingly similar to that in People v. Sandiganbayan.96 In that
case, the petitioner had filed with the Sandiganbayan a motion for consolidation of a
bribery case with a plunder case. The Sandiganbayanrefused, 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 forumshopping."
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
theSandiganbayan, praying anew for the lifting of the default order. Thus, following
the ruling in People v. Sandiganbayan, we rule that petitioners actuations clearly
constitute forum-shopping.
Because of the forum-shopping committed by petitioner, the Court cannot grant the
relief he prayed for.
Certiorari is an improper remedy
Petitioner imputes grave abuse of discretion on the Sandiganbayan for allegedly
"railroading" the proceedings in violation of his right to due process and fair trial. More
specifically, petitioner points out that when theSandiganbayan denied his Motion to
Lift Order of Default (December 18, 2006), he immediately filed an Extremely Urgent
Motion for Reconsideration (December 19, 2006). However, before the latter could be
resolved, the Sandiganbayan allowed the ex-parte presentation of evidence to
proceed (December 20, 2006). This prompted petitioner to file the instant Petition with
this Court two days later (December 22, 2006).
While it may have been more convenient if the Sandiganbayan resolved first the
Extremely Urgent Motion for Reconsideration before allowing the ex-parte
presentation of evidence, we cannot say that the course taken by
the Sandiganbayan constitutes grave abuse of discretion. We cannot infer from
the Sandiganbayans deliberate speed that it was done to prejudice petitioner. There
was adequate justification for the Sandiganbayans resolve to finish the twenty-year
old forfeiture case with dispatch. Aside from the length of time that Civil Case No.
0013 has stagnated in the dockets, the Republics manifestation (that a resolution
was necessary by December 30, 2006 in order to maintain the Swiss Federal Courts
freeze order on petitioners Swiss accounts) is reason enough not to further delay the
case as a matter of public interest. Besides, it should be remembered that when
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 exparte presentation of evidence on December 20, 2006 was simply consistent with
petitioners default status as of that time.
Grave abuse of discretion refers to such "capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be
patent and gross as to amount to an evasion of positive duty or a virtual refusal to

perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion and
hostility. The actions of theSandiganbayan were not thus tainted under the
circumstances we described above. Thus, we cannot accept petitioners contention
that the proceedings taken below must be nullified because of the alleged
"railroading" by the Sandiganbayan.
Moreover, Rule 65 petitions for certiorari are extraordinary remedies available only
when there is grave abuse of discretion amounting to lack of jurisdiction and the
petitioner has no other plain, speedy, and adequate remedy for correcting such
abuse.97
By filing a Second Motion to Lift the Order of Default and the various motions seeking
the Sandiganbayanscorrection of the perceived errors during the Republics ex parte
presentation of evidence, petitioner has revealed his belief that he had adequate
remedies before the Sandiganbayan. A resort to a Rule 65 petition is, under the
premises, improper.
WHEREFORE, the Petition for Certiorari is DISMISSED. Costs against petitioner.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

G.R. No. 189836

June 5, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff -Appellee,

vs.
ROMEO BUSTAMANTE y ALIGANGA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
For our review is this appeal from the Decision1 dated July 31, 2009 of the Court of
Appeals in CA-G.R. CR.-B.C. No. 03102, entitled People of the Philippines v. Romeo
Bustamante y Aliganga, which affirmed the Judgment2dated November 28, 2007 of
the Regional Trial Court (RTC) of Tuguegarao City, Branch 3 in Criminal Case No.
7406. The trial court found appellant Romeo Bustamante y Aliganga guilty beyond
reasonable doubt of the crime of rape as defined and penalized under Article 335 of
the Revised Penal Code, considering that the offense was committed before the
effectivity on October 22, 1997 of Republic Act No. 8353 (the Anti-Rape Law of 1997)
that reclassified and defined rape as a crime against persons under Articles 266-A to
266-D of the same Code.
The pertinent portion of the Information3 charging appellant with the crime of rape
reads:
That on or about February 17, 1997, and sometime prior thereto, in the Municipality of
Alcala, Province of Cagayan, and within the jurisdiction of this Honorable Court, the
said accused Romeo Bustamante y Aliganga, father of the complainant, AAA,4 with
lewd design and by means of threat and intimidation did then and there wilfully,
unlawfully and feloniously have sexual intercourse with his own daughter, the herein
offended party, AAA for several times, starting from the time that the offended party
was only eleven (11) years of age, against her will.
Upon arraignment, appellant pleaded not guilty to the charge against him.5
During pre-trial, appellant made an admission with regard to the identity of the victim
in this case.6 Trial on the merits thereafter commenced.

time or thereafter on February 17, 1997, she was alone in the second floor in their
house when the appellant arrived. Her younger brother Jayjun was playing outside
while her mother went to clean their ginger garden. The appellant laid her down on
the floor and removed her shorts and panty. He then removed his pants, went on top
of her and inserted his penis into her vagina. Appellant removed his penis after he
ejaculated and told her not to report what had happened. Appellant forced her and
she was not able to resist because she was still young during that time. She reported
the incident to her mother and the police.
On re-direct examination, AAA testified that she filed the case against the appellant so
that the latter would no longer box and maltreat her and because he raped her. On recross, it was revealed that appellant was neither armed during the incident nor
covered her mouth when he laid her down. She did not shout because she was
afraid. Appellant threatened her before he raped her.
xxxx
Appellant testified that in the early morning on February 7, 1997, he went to
Tuguegarao with his daughter, AAA. He went to Mrs. Lolit Casauay, his employer, and
Sgt. Poli to tell them his problem regarding AAA and her cousin having sex. Sgt. Poli
advised appellant to go to Alcala Police to have his problem entered in the blotter and
to go back to him after. They stayed in Tuguegarao the whole day and went back to x
x x, Alcala, Cagayan about 7:00 oclock in the evening. When they were approaching
their house, Purita Torrado called for AAA and told appellant that he was a traitor.
Purita Torrado and brothers, Rogelio and Amador Torrado, then entered his house,
mauled him and tied his hands. Thereafter, policemen arrived and brought him to the
Municipal Hall of Alcala, Cagayan without informing him why. His daughter AAA
charged him of the heinous crime of rape because his wife and brothers-inlaw
harbored ill feelings against him, blaming him to have spread the rumor that Rogelio
Torrado was the father of the child of his own sister Purita Torrado. Before February
17, 1997, his daughter AAA admitted to him that she had sexual relations with her
cousin Randy Torrado for which reason he went to Tuguegarao to help AAA file a
complaint against said Randy Torrado. It was after they came from Tuguegarao that
his daughter AAA charged him with rape.

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

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

AAA testified that she lived with his father, the appellant in this case, mother and
younger siblings, 3 brothers and a sister, in x x x, Alcala, Cagayan. At about lunch

On re-direct, appellant further testified that it was his daughter AAA who told him that
Randy Torrado molested her so he brought her to Tuguegarao the following day,

February 17, 1997. He was not able to enter it in the blotter of Alcala police as
directed by Sgt. Poli because when they arrived in Maraburab, Alcala from
Tuguegarao, his brothers-inlaw mauled him. He did not file any charges against his
brothers-in-law.
Police Inspector Carlos T. Poli testified as follows: He was then the Assistant Chief
Investigator at the Cagayan Police Provincial Headquarters on February 17, 1997.
Appellant, with his daughter AAA went to him. Appellant told him that his daughter
was molested by a nephew of his wife but he could not recall the name. He advised
appellant to have the incident reported to, and entered in the blotter of, the Alcala
Police Station where the incident took place and to return for investigation. He talked
to AAA who admitted that there was truth to the report that she was molested and that
there was a second occasion. He did not enter the report in the blotter because they
did not have a blotter so he advised appellant to have the case entered in the blotter
of Alcala Police. The report was not recorded because appellant only sought his
advice and that he would first talk to his wife as the suspect was her relative.
Admittedly, he invited the wife of appellant to his office upon the request of her in-laws
who pitied and considered the appellant as their son. He asked the wife if she could
help but the latter could not do it because her brother and sister were interested to
pursue the case.
The last witness for the defense was Lolita Casauay who testified, thus: she knew
appellant who was the mechanic of her brother. On February 13, 1997, he met the
appellant who asked her advice regarding his daughter who was sexually molested.
She told the appellant to go to the police to enter the incident in the blotter. The
appellant went to Sgt. Poli for this purpose. On February 17, 1997, the appellant and
AAA went to her house in Caggay, Tuguegarao. AAA voluntarily related to her that she
was molested by her cousin Randy Torrado. In March 1997, she learned of the charge
of rape against the appellant. When she saw the appellant in jail, she went to
Maraburab, Alcala, Cagayan, and called for the wife and daughter of the appellant.
She asked the wife why the appellant was incarcerated and the former felt guilty of
what happened to the latter.7
At the conclusion of trial, the trial court convicted appellant of the crime of rape. The
dispositive portion of the assailed November 28, 2007 Judgment of the trial court
reads as follows:
WHEREFORE, the Court finds that the evidence on record has fully established with
moral certainty the guilt of the accused beyond reasonable doubt of the felony of
RAPE, defined and penalized under the provisions of Article 335, of the Revised
Penal Code, as amended, and hereby sentences him:
1.) To suffer imprisonment of reclusion perpetua;

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

a. P75,000.00 by way of civil indemnity;
b. P50,000.00 as moral damages; and,
c. P30,000.00 as exemplary damages.
3.) To pay the costs.8
Appellant elevated his case to the Court of Appeals in the hope of having a reversal of
judgment; however, his appeal was denied in the assailed Decision dated July 31,
2009, the dispositive portion of which states:
WHEREFORE, premises considered, instant appeal is DENIED. Accordingly, the
assailed Judgment, supra, of the court a quo is hereby AFFIRMED in toto.9
Hence, the appellant brought the present appeal before this Court wherein he merely
adopted the Appellants Brief he submitted to the Court of Appeals in lieu of submitting
a Supplemental Brief as permitted by this Court. Appellant assigned two errors for our
consideration, to wit:
I
THE COURT A QUO ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY
OF THE PRIVATE COMPLAINANT.
II
THE COURT A QUO ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY OF
THE CRIME OF RAPE DESPITE THE PROSECUTIONS FAILURE TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.10
In his appeal, appellant maintains that the accusation against him is baseless and
untrue. He claims that, as evidenced by the victims own testimony, AAA filed a false
complaint of rape against him mainly due to her ill feelings towards him brought about
by his purported repeated physical maltreatment of the victim.
The appeal is without merit.
It appears that the crux of appellants appeal centers on the credibility of AAAs
testimony. Accordingly, appellant implores this Court to review the same and render a
judgment reversing his conviction for the crime of rape.

It is settled in jurisprudence that in a prosecution for rape, the accused may be

convicted solely on the basis of the testimony of the victim that is credible, convincing,
and consistent with human nature and the normal course of things.11 Jurisprudence is
likewise instructive that the factual findings of the trial court, especially on the
credibility of the rape victim, are accorded great weight and respect and will not be
disturbed on appeal.12
In the case at bar, both the trial court and the Court of Appeals found AAA to be a
credible witness and her testimony worthy of full faith and credit. After a careful review
of the records of this case, we find no reason to deviate from the findings of the lower
courts.
Since the incident at issue happened prior to the enactment of Republic Act No. 8353,
the trial court correctly applied Article 335 of the Revised Penal Code which provides:
Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

A At the second floor, sir.

Q At that time and day, do you have any companions in your house?
A None, sir.
Q When you were alone in your house that time and day, do you recall if any member
of your family arrived?
A Yes sir, there was.
Q Who arrived?
A My father, sir.
Q Now, if your father who arrived on that time and day, can you recognize him?

1. By using force or intimidation;

A Yes, sir.

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

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

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

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

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

Q When the accused arrived, where did he proceed?

A He went upstairs, sir.

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

Q That means that upstairs that you were?

A Yes, sir.

[PROS. SAGUCIO]
Q When the accused went upstairs where you were, what happened, if any?
Q At about lunch time or thereafter on February 17, 1997, do you remember where
were you?

A He laid me down, sir.

A I was in our house, sir.

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

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

A On the floor, sir.

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

A None, sir.

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

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

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

A None sir, we were only two.

Q When the accused laid you down to the floor, what did he do next, if any?
A He removed my short and my panty, sir.
Q At the time that the accused removed your short and panty, were you still in that
lying position?
A Yes, sir.
xxxx
Q After the accused removed your short and your panty, what did he do next if any?
A He removed also his pants, sir.
Q And after the accused removed his pants, what did he do next, if any?
A He went on top of me, sir.
Q After he went on top of you, what happened next, if any?
A He inserted his penis into my vagina, sir.
Q How long did the penis of the accused stayed inside your vagina?
A When he ejaculates thats the time he removed his penis, sir.
Q Did you not resist?
A He forced me so I was not able to resist, sir.
Q Why were you not able to resist, can you explain?
A Because he was strong and I was still young during that time, sir.

Clearly, the element of carnal knowledge is present in the foregoing narration.

Furthermore, despite the absence of any evident force and intimidation, the same is
still appreciated in the case at bar because it is doctrinally settled that the moral
ascendancy of an accused over the victim renders it unnecessary to show physical
force and intimidation since, in rape committed by a close kin, such as the victims
father, stepfather, uncle, or the common-law spouse of her mother, moral influence or
ascendancy takes the place of violence or intimidation.14
In his defense, appellant interposes denial while also ascribing ill motive on the part of
the victim, his own biological daughter, for accusing him of rape. However, it is wellsettled that denial, if unsubstantiated by clear and convincing evidence, is a selfserving assertion that deserves no weight in law because denial cannot prevail over
the positive, candid and categorical testimony of the complainant, and as between the
positive declaration of the complainant and the negative statement of the appellant,
the former deserves more credence.15 Likewise, the testimonies of the witnesses
presented by appellant failed to buttress his defense of denial as they merely related
to tangential matters which do not seriously affect the issue of AAAs
credibility.1wphi1
With regard to the allegation that the accusation of rape was motivated by ill will and
revenge, this Court is not surprised at this rather common excuse being raised by
offenders in rape cases. We have consistently held that such alleged motives cannot
prevail over the positive and credible testimonies of complainants who remained
steadfast throughout the trial.16 Jurisprudence tells us that it is against human nature
for a young girl to fabricate a story that would expose herself as well as her family to a
lifetime of shame, especially when her charge could mean the death or lifetime
imprisonment of her own father.17
Under the old rape law which is applicable in this case, the death penalty shall be
imposed if the crime of rape is committed under certain enumerated circumstances
which would designate the crime as qualified rape. One such particular circumstance
is when the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, stepparent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim. The minority of the
victim and her relationship to the accused were duly proven by her birth certificate.
However, due to the effectivity of Republic Act No. 9346, otherwise known as "An Act
Prohibiting the Imposition of Death Penalty in the Philippines," the trial court correctly
imposed upon appellant the penalty of reclusion perpetua.

In view of the foregoing, we therefore affirm the conviction of appellant for qualified
rape for which he is to suffer the penalty of reclusion perpetua without eligibility for
parole in consonance with Article 335 of the Revised Penal Code and Republic Act
No. 9346. The award of civil indemnity and exemplary damages is likewise upheld.
However, in line with jurisprudence, the award of moral damages is increased from
Fifty Thousand Pesos (P50,000.00) to Seventy-Five Thousand Pesos (P75,000.00).18
WHEREFORE, premises considered, the Decision dated July 31, 2009 of the Court of
Appeals in CA-G.R. CR.-HC No. 03102 convicting appellant Romeo A. Bustamante
for qualified rape for which he is to suffer the penalty of reclusion perpertua without
eligibility for parole is hereby
AFFIRMED with the MODIFICATIONS that:
(1) The moral damages to be paid by appellant Romeo A. Bustamante is
increased from Fifty Thousand Pesos (P50,000.00) to Seventy-Five
Thousand Pesos (P75,000.00); and
(2) Appellant Romeo A. Bustamante is ordered to pay the private offended
party interest on all damages awarded at the legal rate of six percent ( 6%)
per annum from the date of finality of this judgment.
No pronouncement as to costs.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

G.R. No. 169677

February 18, 2013

METROPOLITAN BANK AND TRUST COMPANY, as successor-in-interest of

ASIAN BANK CORPORATION,Petitioner,
vs.
HON. EDILBERTO G. SANDOVAL, HON. FRANCISCO H. VILLARUZ, JR. and
HON. RODOLFO A. PONFERRADA (in their capacities as Chairman and
Members, respectively, of the Second Division of SANDIGANBAYAN) and the
REPUBLIC OF THE PHILIPPINES, Respondents.
DECISION
BERSAMIN, J.:
The court, in furtherance of convenience or to avoid prejudice, may order a separate
trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any
separate issue or of any number of claims, cross-claims, counterclaims, third-party
complaints or issues.1 But a separate trial may be denied if a party is thereby deprived
of his right to be heard upon an issue dealt with and determined in the main trial.
Through this special civil action for certiorari, Metropolitan Bank and Trust Company
(Metrobank) hereby seeks to set aside and nullify the resolutions dated June 25,
20042 and July 13, 20053 issued in Civil Case No. 0004, whereby the Sandiganbayan
granted the motion for separate trial filed by the Republic of the Philippines
(Republic), and upheld its jurisdiction over the Republics claim against the petitioner
as the successor-in-interest of Asian Bank Corporation (Asian Bank).
Antecedents
On July 17, 1987, the Republic brought a complaint for reversion, reconveyance,
restitution, accounting and damages in the Sandiganbayan against Andres V. Genito,
Jr., Ferdinand E. Marcos, Imelda R. Marcos and other defendants. The action was
obviously to recover allegedly ill-gotten wealth of the Marcoses, their nominees,
dummies and agents. Among the properties subject of the action were two parcels of
commercial land located in Tandang Sora (Old Balara), Quezon City, covered by
Transfer Certificate of Title (TCT) No. 2664234 and TCT No. 2665885 of the Registry
of Deeds of Quezon City registered in the names of Spouses Andres V. Genito, Jr.
and Ludivina L. Genito.
On February 5, 2001, the Republic moved for the amendment of the complaint in
order to implead Asian Bank as an additional defendant. The Sandiganbayan granted
the motion.6 It appears that Asian Bank claimed ownership of the two parcels of land

as the registered owner by virtue of TCT No. N-201383 and TCT No. N-201384
issued in its name by the Registry of Deeds of Quezon City. Asian Bank was also in
possession of the properties by virtue of the writ of possession issued by the Regional
Trial Court (RTC) in Quezon City.7
When the Republic was about to terminate its presentation of evidence against the
original defendants in Civil Case No. 0004, it moved to hold a separate trial against
Asian Bank.8
Commenting on the motion, Asian Bank sought the deferment of any action on the
motion until it was first given the opportunity to test and assail the testimonial and
documentary evidence the Republic had already presented against the original
defendants, and contended that it would be deprived of its day in court if a separate
trial were to be held against it without having been sufficiently apprised about the
evidence the Republic had adduced before it was brought in as an additional
defendant.9
In its reply to Asian Banks comment, the Republic maintained that a separate trial for
Asian Bank was proper because its cause of action against Asian Bank was entirely
distinct and independent from its cause of action against the original defendants; and
that the issue with respect to Asian Bank was whether Asian Bank had actual or
constructive knowledge at the time of the issuance of the TCTs for the properties in its
name that such properties were the subject of the complaint in Civil Case No. 0004,
while the issue as to the original defendants was whether they had "committed the
acts complained of as constituting illegal or unlawful accumulation of wealth which
would, as a consequence, justify forfeiture of the said properties or the satisfaction
from said properties of the judgement that may be rendered in favor of the
Republic."10
Asian Banks rejoinder to the Republics reply asserted that the issue concerning its
supposed actual or constructive knowledge of the properties being the subject of the
complaint in Civil Case No. 0004 was intimately related to the issue delving on the
character of the properties as the ill-gotten wealth of the original defendants; that it
thus had a right to confront the evidence presented by the Republic as to the
character of the properties; and that the Sandiganbayan had no jurisdiction to decide
Asian Banks ownership of the properties because the Sandiganbayan, being a
special court with limited jurisdiction, could only determine the issue of whether or not
the properties were illegally acquired by the original defendants.11
On June 25, 2004, the Sandiganbayan issued the first assailed resolution granting the
Republics motion for separate trial, giving its reasons as follows:
xxxx

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

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

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

8.02 x x x the Honorable Sandiganbayan failed to consider that Respondent Republic

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

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

Issues
Metrobank contends that the Sandiganbayan committed grave abuse of discretion in
ruling that: (1) the Republic was entitled to a separate trial against Asian Bank; (2) the
only issue as regards Asian Bank was whether there was evidence that Asian Bank
acquired the properties in bad faith; and
(3) the Sandiganbayan had jurisdiction over the issue of Asian Banks alleged bad
faith in acquiring the properties.15
Anent the first issue, Metrobank states that the holding of a separate trial would deny
it due process, because Asian Bank was entitled to contest the evidence of the
Republic against the original defendants prior to Asian Banks inclusion as an
additional defendant; that Asian Bank (Metrobank) would be deprived of its day in
court if a separate trial was held against it, considering that the Republic had already
presented such evidence prior to its being impleaded as an additional defendant; that
such evidence would be hearsay unless Asian Bank (Metrobank) was afforded the
opportunity to test and to object to the admissibility of the evidence; that because
Asian Bank disputed the allegedly ill-gotten character of the properties and denied
any involvement in their allegedly unlawful acquisition or any connivance with the
original defendants in their acquisition, Asian Bank should be given the opportunity to
refute the Republics adverse evidence on the allegedly illgotten nature of the
properties.16
With respect to the second issue, Metrobank submits thuswise:

8.03 It must be stressed that the discretion of the court to order a separate trial of
such issues should only be exercised where the issue ordered to be separately tried
is so independent of the other issues that its trial will in no way involve the trial of the
issues to be thereafter tried and where the determination of that issues will
satisfactorily and with practical certainty dispose of the case, if decided for defendant.
Considering that the issue on Asian Bank Corporations alleged acquisition in bad
faith of the subject properties is intimately related to the issue on the character and
nature of the subject properties as ill-gotten wealth of the other defendants in the
instant civil case, there is absolutely no legal or factual basis for the holding of a
separate trial against Asian Bank Corporation.17
As to the third issue, Metrobank posits that Asian Bank acquired the properties long
after they had been acquired by the original defendants supposedly through unlawful
means; that the Republic admitted that the evidence adduced against the original
defendants would not apply to Asian Bank because the amended complaint in Civil
Case No. 0004 did not impute any responsibility to Asian Bank for the accumulation of
wealth by the original defendants, or did not allege that Asian Bank had participated in
such accumulation of wealth; that there was also no allegation or proof that Asian
Bank had been a business associate, dummy, nominee or agent of the Marcoses; that
the inclusion of Asian Bank was not warranted under the law; that Asian Bank was a
transferee in good faith and for valuable consideration; that the Sandiganbayan had
no jurisdiction over civil cases against innocent purchasers for value like Asian Bank
that had no notice of the allegedly ill-gotten nature of the properties; and that
considering the admission of the Republic that the issue on the accumulation of
wealth by the original defendants did not at all concern Asian Bank, it follows that the
Sandiganbayan had no jurisdiction to pass judgment on the validity of Asian Banks
ownership of the properties.18

In contrast, the Republic insists that the Rules of Court allowed separate trials if the
issues or claims against several defendants were entirely distinct and separate,
notwithstanding that the main claim against the original defendants and the issue
against Asian Bank involved the same properties; that the allegations in the case
against Spouses Genito and the other original defendants pertained to the Republics
claim that the properties listed in Annex A of the original complaint constituted illgotten wealth, resulting in the probable forfeiture of the listed properties should the
Republic establish in the end that such original defendants had illegally or unlawfully
acquired such properties; that although the Republic conceded that neither Asian
Bank nor Metrobank had any participation whatsoever in the commission of the illegal
or unlawful acts, the only issue relevant to Metrobank being whether it had knowledge
that the properties had been in custodia legis at the time of its acquisition of them to
determine its allegation of being an innocent purchaser for valuable consideration;
that because the properties were situated in the heart of Quezon City, whose land
records had been destroyed by fire in 1998, resulting in the rampant proliferation of
fake land titles, Asian Bank should have acted with extra caution in ascertaining the
validity of the mortgagors certificates of title; and that the series of transactions
involving the properties was made under dubious circumstances.19
The Republic posits that the Sandiganbayan had exclusive original jurisdiction over all
cases involving the recovery of ill-gotten wealth pursuant to Executive Orders No. 1,
No. 2, No. 14 and No. 14-A issued in 1986, laws encompassing the recovery of
sequestered properties disposed of by the original defendants while such properties
remained in custodia legis and pending the final resolution of the suit; and that the
properties pertaining to Spouses Genito were among the properties placed under the
writs of sequestration issued by the Presidential Commission on Good Government
(PCGG), thereby effectively putting such properties in custodia legis and rendering
them beyond disposition except upon the prior approval of the Sandiganbayan.20
Ruling
The petition for certiorari is partly meritorious.
The Sandiganbayan gravely abused its discretion in granting the Republics motion
for separate trial, but was correct in upholding its jurisdiction over the Republics claim
against Asian Bank (Metrobank).
First and Second Issues:
Separate Trials are Improper
The first and second issues, being interrelated, are jointly discussed and resolved.
The rule on separate trials in civil actions is found in Section 2, Rule 31 of the Rules
of Court, which reads:

Section 2. Separate trials. The court, in furtherance of convenience or to avoid

prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or thirdparty complaint, or of any separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues.
The text of the rule grants to the trial court the discretion to determine if a separate
trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any
separate issue or of any number of claims, cross-claims, counterclaims, third-party
complaints or issues should be held, provided that the exercise of such discretion is in
furtherance of convenience or to avoid prejudice to any party.
The rule is almost identical with Rule 42(b) of the United States Federal Rules of Civil
Procedure (Federal Rules), a provision that governs separate trials in the United
States Federal Courts (US Federal Courts), viz:
Rule 42. Consolidation; Separate Trials.
xxxx
(b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or
when separate trials will be conducive to expedition and economy, may order a
separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any
separate issue or of any number of claims, crossclaims, counterclaims, third-party
claims, or issues, always preserving the inviolate right of trial by jury as declared by
the Seventh Amendment to the Constitution or as given by a statute of the United
States.
The US Federal Courts have applied Rule 42(b) by using several principles and
parameters whose application in this jurisdiction may be warranted because our rule
on separate trials has been patterned after the original version of Rule 42(b).21 There
is no obstacle to adopting such principles and parameters as guides in the application
of our own rule on separate trials. This is because, generally speaking, the Court has
randomly accepted the practices in the US Courts in the elucidation and application of
our own rules of procedure that have themselves originated from or been inspired by
the practice and procedure in the Federal Courts and the various US State Courts.
In Bowers v. Navistar International Transport Corporation,22 we find the following
explanation made by the US District Court for the Southern District of New York on
the objectives of having separate trials, to wit:
The aim and purpose of the Rule is aptly summarized in C. Wright and A Millers
Federal Practice and Procedure:

The provision for separate trials in Rule 42 (b) is intended to further convenience,
avoid delay and prejudice, and serve the ends of justice. It is the interest of efficient
judicial administration that is to be controlling rather than the wishes of the parties.
The piecemeal trial of separate issues in a single suit is not to be the usual course. It
should be resorted to only in the exercise of informed discretion when the court
believes that separation will achieve the purposes of the rule.
xxxx
As explained recently by the Second Circuit in United v. Alcan Aluminum Corp., Nos.
92-6158, 6160 1993 WL 100100, 1 (2d Cir., April 6, 1993), the purpose of separate
trials under Rule 42 (b) is to "isolate issues to be resolved, avoid lengthy and perhaps
needless litigation . . . and to encourage settlement discussions and speed up
remedial action." (citing, Amoco Oil v. Borden, Inc., 889 F.2d 664, 668 (5th Cir.
1989); Katsaros v. Cody, 744 F.2d 270, 278 (2d Cir.), cert. denied sub nom., 469 U.S.
1072, 105 S. Ct. 565, 83 L. Ed. 2d 506 (1984) (separate trials are proper to further
convenience or to avoid prejudice); Ismail v. Cohen, 706 F. Supp. 243, 251 (S.D.N.Y.
1989) (quoting, United States v. International Business Machines Corp., 60 F.R.D.
654, 657 (S.D.N.Y. 1973) (separate trials under Rule 42 (b) are appropriate, although
not mandatory, to "(1) avoid prejudice; (2) provide for convenience, or (3) expedite the
proceedings and be economical.") Separate trials, however, remain the exception
rather than the rule. See, e.g., Response of Carolina, Inc. v. Leasco Response,
Inc., 537 F.2d 137 (5th Cir. 1976) xxx (separation of issues is not the usual course
under Rule 42 (b)). The moving party bears the burden of establishing that separate
trials are necessary to prevent prejudice or confusion and serve the ends of
justice. Buscemi v. Pepsico, Inc., 736 F. Supp. 1267, 1271 (S.D.N.Y. 1990).
In Divine Restoration Apostolic Church v. Nationwide Mutual Insurance Co.,23 the US
District Court for the Southern District of Texas, Houston Division specified that
separate trials remained the exception, and emphasized that the moving party had
the burden to establish the necessity for the separation of issues, viz:
Rule 42 (b) provides that a court has discretion to order separate trials of claims "in
furtherance of convenience or to avoid prejudice, or when separate trials will be
conducive to expedition and economy." FED. R. CIV. P.42 (b). Thus, the two primary
factors to be considered in determining whether to order separate trials are efficient
judicial administration and potential prejudice. Separation of issues for separate trials
is "not the usual course that should be followed," McDaniel v. Anheuser-Bush,
Inc., 987 F. 2d 298, 304 (5th Cir. 1993), and the burden is on the party seeking
separate trials to prove that separation is necessary. 9A CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE 2388 (3d ed. 2001).
xxxx

Still, in Corrigan v. Methodist Hospital,24 the US District Court for the Eastern District
of Pennsylvania has cautioned against the unfettered granting of separate trials,
thusly:
Courts order separate trials only when "clearly necessary." Wetherill v. University of
Chicago, 565 F. Supp. 1553, 1566-67 (N.D. Ill. 1983) (citing 5 James William
Moore, Moores Federal Practice at pp. 42-37 to 42-38 & n.4 (1982)). This is because
a "single trial will generally lessen the delay, expense, and inconvenience to the
parties and the courts." 5 James William Moore, Moores Federal Practice P. 42-03[1],
at p. 42-43 (1994); Laitram Corp. v. Hewlett-Packard Co., 791 F. Supp. 113, 115 (E.D.
La. 1992); Willemijn Houdstermaatschaapij BV. V. Apollo Computer, 707 F. Supp.
1429, 1433 (D. Del. 1989). The movant has the burden to show prejudice. Moore at p.
42-48.
x x x A Colorado District Court found three factors to weigh in determining whether to
order separate trials for separate defendants. These are 1) whether separate trials
would further the convenience of the parties; 2) whether separate trials would
promote judicial economy; and 3) whether separate trials would avoid substantial
prejudice to the parties.
Tri-R Sys. V. Friedman & Son, 94 F.R.D. 726, 727 (D. Colo. 1982).
In Miller v. American Bonding Company,25 the US Supreme Court has delimited the
holding of separate trials to only the exceptional instances where there were special
and persuasive reasons for departing from the general practice of trying all issues in a
case at only one time, stating:
In actions at law, the general practice is to try all the issues in a case at one time; and
it is only in exceptional instances where there are special and persuasive reasons for
departing from this practice that distinct causes of action asserted in the same case
may be made the subjects of separate trials. Whether this reasonably may be done in
any particular instance rests largely in the courts discretion.
Further, Corpus Juris Secundum26 makes clear that neither party had an absolute
right to have a separate trial of an issue; hence, the motion to that effect should be
allowed only to avoid prejudice, further convenience, promote justice, and give a fair
trial to all parties, to wit:
Generally speaking, a lawsuit should not be tried piecemeal, or at least such a trial
should be undertaken only with great caution and sparingly. There should be one full
and comprehensive trial covering all disputed matters, and parties cannot, as of right,
have a trial divided. It is the policy of the law to limit the number of trials as far as
possible, and

separate trials are granted only in exceptional cases. Even under a statute permitting
trials of separate issues, neither party has an absolute right to have a separate trial of
an issue involved. The trial of all issues together is especially appropriate in an action
at law wherein the issues are not complicated, x x x, or where the issues are basically
the same x x x
x x x Separate trials of issues should be ordered where such separation will avoid
prejudice, further convenience, promote justice, and give a fair trial to all parties.
Bearing in mind the foregoing principles and parameters defined by the relevant US
case law, we conclude that the Sandiganbayan committed grave abuse of its
discretion in ordering a separate trial as to Asian Bank (Metrobank) on the ground that
the issue against Asian Bank was distinct and separate from that against the original
defendants. Thereby, the Sandiganbayan veered away from the general rule of
having all the issues in every case tried at one time, unreasonably shunting aside the
dictum in Corrigan, supra, that a "single trial will generally lessen the delay, expense,
and inconvenience to the parties and the courts."27
Exceptions to the general rule are permitted only when there are extraordinary
grounds for conducting separate trials on different issues raised in the same case, or
when separate trials of the issues will avoid prejudice, or when separate trials of the
issues will further convenience, or when separate trials of the issues will promote
justice, or when separate trials of the issues will give a fair trial to all parties.
Otherwise, the general rule must apply.
As we see it, however, the justification of the Sandiganbayan for allowing the separate
trial did not constitute a special or compelling reason like any of the exceptions. To
begin with, the issue relevant to Asian Bank was not complicated. In that context, the
separate trial would not be in furtherance of convenience. And, secondly, the cause of
action against Asian Bank was necessarily connected with the cause of action against
the original defendants.1wphi1 Should the Sandiganbayan resolve the issue against
Spouses Genito in a separate trial on the basis of the evidence adduced against the
original defendants, the properties would be thereby adjudged as ill-gotten and liable
to forfeiture in favor of the Republic without Metrobank being given the opportunity to
rebut or explain its side. The outcome would surely be prejudicial towards Metrobank.
The representation by the Republic in its comment to the petition of Metrobank, that
the latter "merely seeks to be afforded the opportunity to confront the witnesses and
documentary exhibits," and that it will "still be granted said right during the conduct of
the separate trial, if proper grounds are presented therefor,"28 unfairly dismisses the
objective possibility of leaving the opportunity to confront the witnesses and
documentary exhibits to be given to Metrobank in the separate trial as already too
late. The properties, though already registered in the name of Asian Bank, would be
meanwhile declared liable to forfeiture in favor of the Republic, causing Metrobank to

suffer the deprivation of its properties without due process of law. Only a joint trial with
the original defendants could afford to Metrobank the equal and efficient opportunity
to confront and to contest all the evidence bearing on its ownership of the properties.
Hence, the disadvantages that a separate trial would cause to Metrobank would far
outweigh any good or benefit that the Republic would seemingly stand to gain from
the separation of trials.
We must safeguard Metrobanks right to be heard in the defense of its registered
ownership of the properties, for that is what our Constitution requires us to do. Hence,
the grant by the Sandiganbayan of the Republics motion for separate trial, not being
in furtherance of convenience or would not avoid prejudice to a party, and being even
contrary to the Constitution, the law and jurisprudence, was arbitrary, and, therefore, a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
Sandiganbayan.29
Third Issue:
Sandiganbayan has exclusive original jurisdiction
over the matter involving Metrobank
Presidential Decree No. 1606,30 as amended by Republic Act No. 797531 and
Republic Act No. 8249,32 vests the Sandiganbayan with original exclusive jurisdiction
over civil and criminal cases instituted pursuant to and in connection with Executive
Orders No. 1, No. 2, No. 14 and No. 14-A, issued in 1986 by then President Corazon
C. Aquino.
Executive Order No. 1 refers to cases of recovery and sequestration of ill-gotten
wealth amassed by the Marcoses their relatives, subordinates, and close associates,
directly or through nominees, by taking undue advantage of their public office and/or
by using their powers, authority, influence, connections or relationships. Executive
Order No. 2 states that the ill-gotten wealth includes assets and properties in the form
of estates and real properties in the Philippines and abroad. Executive Orders No. 14
and No. 14-A pertain to the Sandiganbayans jurisdiction over criminal and civil cases
relative to the ill-gotten wealth of the Marcoses and their cronies.
The amended complaint filed by the Republic to implead Asian Bank prays for
reversion, reconveyance, reconstitution, accounting and damages. In other words, the
Republic would recover ill-gotten wealth, by virtue of which the properties in question
came under sequestration and are now, for that reason, in custodia legis.33
Although the Republic has not imputed any responsibility to Asian Bank for the illegal
accumulation of wealth by the original defendants, or has not averred that Asian Bank
was a business associate, dummy, nominee, or agent of the Marcoses, the allegation
in its amended complaint in Civil Case No. 0004 that Asian Bank acted with bad faith
for ignoring the sequestration of the properties as ill-gotten wealth has made the

cause of action against Asian Bank incidental or necessarily connected to the cause
of action against the original defendants. Consequently, the Sandiganbayan has
original exclusive jurisdiction over the claim against Asian Bank, for the Court has
ruled in Presidential Commission on Good Government v. Sandiganbayan,34 that "the
Sandiganbayan has original and exclusive jurisdiction not only over principal causes
of action involving recovery of ill-gotten wealth, but also over all incidents arising from,
incidental to, or related to such cases." The Court made a similar pronouncement
sustaining the jurisdiction of the Sandiganbayan in Republic of the Philippines
(PCGG) v. Sandiganbayan (First Division),35 to wit:
We cannot possibly sustain such a puerile stand. Pea itself already dealt with the
matter when it stated that under Section 2 of Executive Order No. 14, all cases of the
Commission regarding alleged illgotten properties of former President Marcos and his
relatives, subordinates, cronies, nominees and so forth, whether civil or criminal, are
lodged within the exclusive and original jurisdiction of the Sandiganbayan, "and all
incidents arising from, incidental to, or related to such cases necessarily fall likewise
under the Sandiganbayans exclusive and original jurisdiction, subject to review on
certiorari exclusively by the Supreme Court."
WHEREFORE, the Court PARTIALLY GRANTS the petition for certiorari.
Let the writ of certiorari issue: (a) ANNULLING AND SETTING ASIDE the Resolution
dated June 25, 2004 and the Resolution dated July 13, 2005 issued by the
Sandiganbayan in Civil Case No. 0004 granting the motion for separate trial of the
Republic of the Philippines as to Metropolitan Bank and Trust Company; and
(b), DIRECTINGthe Sandiganbayan to hear Civil Case No. 0004 against Metropolitan
Bank and Trust Company in the same trial conducted against the original defendants
in Civil Case No. 0004.
The Court DECLARES that the Sandiganbayan has original exclusive jurisdiction
over the amended complaint in Civil Case No. 0004 as against Asian Bank
Corporation/Metropolitan Bank and Trust Company.
No pronouncements on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice

G.R. No. 199501

March 6, 2013

REPUBLIC OF THE PHILIPPINES, represented by the REGIONAL EXECUTIVE

DIRECTOR, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
REGION III, Petitioner,
vs.
HEIRS OF ENRIQUE ORIBELLO, JR. and THE REGISTER OF DEEDS OF
OLONGAPO CITY, Respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 29 April 2011 Decision2 and 16 November 2011
Resolution3 of the Court of Appeals in CA-G.R. CV No. 90559. The Court of Appeals
denied petitioner Republic of the Philippines' (peitioner) appeal of the Order of the
Regional Trial Court, Olongapo City, Branch 72,4 which dismissed petitioner's action
for reversion and cancellation of Original Certificate of Title (OCT) No. P-5004 in the
name of Enrique Oribello, Jr. (Oribello ).
The Facts
The present controversy involves a parcel of land situated in Nagbaculao, Kalaklan,
Olongapo City, which was once classified as forest land by the Bureau of Forest
Development. The property was originally occupied by a certain Valentin Fernandez
(Valentin) in 1968 by virtue of a Residential Permit issued by the same government
office.
Upon Valentins death, his son, Odillon Fernandez (Odillon), continued to occupy the
property, together with spouses Ruperto and Matilde Apog. Sometime in 1969, Odillon
sold the property to a certain Mrs. Florentina Balcita who, later on, sold the same
property to Oribello. Oribello filed a Miscellaneous Sales Application with the
Department of Environment and Natural Resources (DENR), which denied the
application since the land remained forest land.
On 20 February 1987, the subject property was declared open to disposition under
the Public Land Act. Thus, Oribello filed another Miscellaneous Sales Application on 6
April 1987.

On 27 March 1990, the Director of Lands issued an Order for the issuance of a patent
in favor of Oribello. On even date, Miscellaneous Sales Patent No. 12756 and OCT
No. P-5004 were issued to Oribello.
Matilde Apog (Apog) and Aliseo San Juan (San Juan),5 claiming to be actual
occupants of the property, protested with the DENR the issuance of the sales patent
and OCT in favor of Oribello. They sought the annulment of the sales patent, arguing
that Oribello and Land Inspector Dominador Laxa (Laxa) committed fraud and
misrepresentation in the approval of the Miscellaneous Sales Application of Oribello.
They alleged that Laxa submitted a false report to the Director of Lands, by stating
that there were no other claimants to the property and that Oribello was the actual
occupant thereof, when the contrary was true.
After investigation, the Regional Executive Director of the DENR found substantial
evidence that fraud and misrepresentation were committed in the issuance of the
sales patent in favor of Oribello, warranting a reversion suit.
On 25 March 1992, the Office of the Solicitor General, representing petitioner,
instituted a complaint for reversion and cancellation of title before the Regional Trial
Court of Olongapo City, docketed as Civil Case No. 225-0-92. The case was
thereafter consolidated with Civil Case No. 233-0-91, a complaint for recovery of
possession filed by Oribello against Apog and San Juan.
During the trial, petitioner marked numerous documentary evidence and presented
several witnesses on various hearing dates.6
In an Order dated 20 December 1996, the trial court warned petitioner on the possible
effect of its non-appearance on the next scheduled hearing, thus:
WHEREFORE, let the continuation of the reception of evidence for the Republic of
the Philippines be reset to February 14, 21 and 28, 1997, all at 10:00 oclock in the
morning, as previously scheduled.
The Solicitor General is warned that should his designated lawyer or any of his
assistants fail to appear on the dates above-stated, the Court will be constrained to
consider the presentation of evidence for the Republic of the Philippines as
terminated.
Atty. Dumpit, therefore, is advised that he bring his witnesses on said dates to testify
for the defendants Matilde Apog and Eliseo San Juan should the Solicitor General fail
to appear and present evidence.
xxxx

SO ORDERED.7 (Emphasis supplied)

On the hearing of 4 April 1997, Atty. Oscar Pascua, representing petitioner, presented
a witness on the stand.For petitioners failure to appear on the hearing of 12
September 1997, the trial court issued an Order8 on even date holding as follows:
On July 25, 1997, this Court issued an Order, quoted as follows:
xxxx
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.
xxxx
WHEREFORE, the Republic of the Philippines is hereby deemed to have abandoned
the case for the government.
Attorney Dumpit for the defendant Matilde Apog, et al., is hereby required to manifest
in writing on whether or not he is adopting the evidence already presented by the
Republic of the Philippines, and if so, to make his offer of evidence within 30 days
from today. Atty. Leyco is given 10 days from receipt of a copy of his offer to file his
comment or opposition. Let the reception of evidence, if there be any on any part of
Enrique Oribello, be set on October 24, 1997 at 10:00 a.m. as previously scheduled.
And in addition thereto on November 21, and December 5, 1997 also both at 10:00
a.m. To give way to the filing of these pleadings, cancel the hearing scheduled for
October 3, 1997.
Upon receipt of proof from the Post Office by this Court which will show that Atty.
Pascua has received a copy of the Order dated July 25, 1997, the Motion to hold him
in contempt will be deemed submitted for resolution. Furnish Atty. Barcelo, the
Solicitor General, the Executive Regional Director, DENR, R-III, Angeles City, and
Atty. Oscar Pascua, a copy of this Order. Attys. Dumpit and Leyco are both notified in
open court of this Order.
SO ORDERED.9
The trial of the consolidated cases continued and the reception of evidence of the
private parties proceeded.

However, in its Order of 21 February 2005, the trial court dismissed the consolidated
cases without prejudice for non-substitution of the deceased plaintiff (Oribello) and his
counsel, to wit:
Considering that the plaintiffs counsel is already dead, and the plaintiff is likewise
dead already, there being no substitution of party-plaintiffs or any record showing the
heirs or party in interest, these cases are dismissed without prejudice.10

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

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

WHEREFORE, the foregoing premises considered, the instant appeal is hereby

DENIED for lack of merit.

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

The Court of Appeals denied the motion for reconsideration.

Aggrieved, Oribellos 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. Oribellos heirs pointed out that from the time
petitioner received the Order in 1997, it did nothing to question the same, making the
Order final.
In its Resolution of 12 July 2006, the trial court recalled its 29 June 2005 Order, and
declared instead:

SO ORDERED.13 (Emphasis in the original)

The Issues
Petitioner anchors the present petition on the following grounds:
1. Interlocutory orders are not subject of appeal.
2. The consolidated cases, without any order of severance, cannot be
subject of multiple appeals.
3. There can be no private ownership over an unclassified public forest.

Finding merit in defendants Motion and Manifestation, the Order dated 29 June 2005
granting the Motion for Reconsideration filed by the Solicitor General is recalled and
the above-entitled case is DISMISSED.

The Ruling of the Court

SO RESOLVED.12

Is the 12 September 1997 Order interlocutory?

Petitioner appealed to the Court of Appeals.

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

The Ruling of the Court of Appeals

The Court of Appeals denied petitioners 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 courts 12 September 1997
Order, declaring it to have abandoned the case. As a consequence of petitioners
inaction, such order inevitably became final.

We agree with petitioner.

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

Conversely, an interlocutory order "does not dispose of the case completely but
leaves something to be decided upon"17 by the court. Its effects are merely provisional
in character and substantial proceedings have to be further conducted by the court in
order to finally resolve the issue or controversy.18
Based on the records, petitioner has presented testimonial evidence on various
hearing dates and marked numerous documents during the trial of Civil Case No.
225-0-92. Such acts do not manifest lack of interest to prosecute. Admittedly there
was delay in this case. However, such delay is not the delay warranting dismissal of
the complaint. To be a sufficient ground for dismissal, delay must not only be lengthy
but also unnecessary resulting in the trifling of court processes.19 There is no proof
that petitioner intended to delay the proceedings in this case, much less abuse
judicial processes.
While petitioner failed to appear on the hearing of 12 September 1997, such failure
does not constitute a ground for the dismissal of the reversion complaint for failure to
prosecute. Petitioners non-appearance on that date should simply be construed as a
waiver of the right to present additional evidence.20
We note that prior to the issuance of the 12 September 1997 Order, the trial court
already warned petitioner on the likely adverse effect of its non-appearance on the
next hearing date. If petitioner fails to attend the next scheduled hearing, the trial
court would consider petitioners presentation of evidence as terminated. Termination
of presentation of a partys 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
courts 29 June 2005 Order.
While it is within the trial courts discretion to dismiss motu proprio the complaint on
the ground of plaintiffs failure to prosecute, it must be exercised with caution. Resort
to such action must be determined according to the procedural history of each case,
the situation at the time of the dismissal, and the diligence (or the lack thereof) of the
plaintiff to proceed therein.21 As the Court held in Gomez v. Alcantara,22 if a lesser
sanction would achieve the same result, then dismissal should not be resorted to.
Unless a partys conduct is so indifferent, irresponsible, contumacious or slothful as to
provide substantial grounds for dismissal, i.e., equivalent to default or nonappearance in the case, the courts should consider lesser sanctions which would still
amount to achieving the desired end. In the absence of a pattern or scheme to delay
the disposition of the case or of a wanton failure to observe the mandatory
requirement of the rules on the part of the plaintiff, as in the case at bar, courts should

decide to dispense with rather than wield their authority to dismiss.23 (Emphasis
supplied)
Notably, the trial court, even after its supposed "dismissal" of the case for petitioners
abandonment, continued to recognize petitioners personality in its proceedings. In
fact, in its Order of 16 January 1998, well beyond the "dismissal" on 12 September
1997, the trial court directed the service of such order to the Solicitor General, to wit:
xxxx
Should Atty. Dumpit fail to submit the said offer of evidence, it will be deemed a
waiver on his part to do so. Atty. Leyco announced that he is presenting evidence for
and in behalf of the defendants Oribello in Civil Case No. 225-0-92 and as plaintiff in
Civil Case No. 233-0-91.
To give way to the filing of said pleadings, cancel the hearing on February 20, 1998.
Let the reception of evidence for the plaintiff Oribellos be set on March 20, 1998 at
9:00 a.m.. Attys. Leyco and Dumpit are notified in open court. Furnish a copy of this
order the Solicitor General, DENR Office in Angeles City, as well as Atty.
Pascua.24(Emphasis supplied)
In addition, the above Order states that Oribellos counsel was presenting evidence
on the two consolidated cases. This means that Oribello himself continued to
recognize the pendency of the reversion suit (Civil Case No. 225-0-92), contrary to
his subsequent allegation that such case has already been dismissed.
Are the consolidated cases subject to multiple appeals?
Section 1, Rule 31 of the Rules of Court provides:
SECTION 1. Consolidation. When actions involving a common question of law or
fact are pending before the court, it may order a joint hearing or trial of any or all the
matters in issue in the actions; it may order all the actions consolidated, and it may
make such orders concerning proceedings therein as may tend to avoid unnecessary
costs or delay.
Consolidation is a procedural device to aid the court in deciding how cases in its
docket are to be tried so that the business of the court may be dispatched
expeditiously and with economy while providing justice to the parties.25To promote this
end, the rule allows the consolidation and a single trial of several cases in the courts
docket, or the consolidation of issues within those cases.26 The Court explained, thus:

In the context of legal procedure, the term "consolidation" is used in three different
senses:
(1) Where all except one of several actions are stayed until one is tried, in
which case the judgment in the one trial is conclusive as to the others. This
is not actually consolidation but is referred to as such. (quasi-consolidation)
(2) Where several actions are combined into one, lose their separate identity,
and become a single action in which a single judgment is rendered. This is
illustrated by a situation where several actions are pending between the
same parties stating claims which might have been set out originally in one
complaint. (actual consolidation)1wphi1
(3) Where several actions are ordered to be tried together but each retains
its separate character and requires the entry of a separate judgment. This
type of consolidation does not merge the suits into a single action, or cause
the parties to one action to be parties to the other. (consolidation for trial)27
In the present case, the complaint for reversion filed by petitioner (Civil Case No. 2250-92) was consolidated with the complaint for recovery of possession filed by Oribello
(Civil Case No. 223-0-91). While these two cases involve common questions of law
and fact,28 each action retains its separate and distinct character. The reversion suit
settles whether the subject land will be reverted to the State, while the recovery of
possession case determines which private party has the better right of possession
over the subject property. These cases, involving different issues and seeking
different remedies, require the rendition and entry of separate judgments. The
consolidation is merely for joint trial of the cases. Notably, the complaint for recovery
of possession proceeded independently of the reversion case, and was disposed of
accordingly by the trial court.

Since each action does not lose its distinct character, severance of one action from
the other is not necessary to appeal a judgment already rendered in one action. There
is no rule or law prohibiting the appeal of a judgment or part of a judgment in one
case which is consolidated with other cases. Further, severance is within the sound
discretion of the court for convenience or to avoid prejudice. It is not mandatory under
the Rules of Court that the court sever one case from the other cases before a party
can appeal an adverse ruling on such case.
Is the property unclassified public forest?
In its petition, petitioner contended that the subject property remains unclassified
public forest, incapable of private appropriation. In its complaint, petitioner alleged
that Oribello committed fraud and misrepresentation in acquiring the subject property.
This Court is not a trier of facts. Fraud is a question offact. 29 Whether there was fraud
and misrepresentation in the issuance of the sales patent in favor of Oribello calls for
a thorough evaluation of the parties' evidence. Thus, this Court will have to remand
the reversion case to the trial court for further proceedings in order to resolve this
issue and accordingly dispose of the case based on the parties' evidence on record.
WHEREFORE, the Court GRANTS the petition IN PART and SETS ASIDE the
assailed Decision and Resolution of the Court of Appeals. The reversion case is
remanded to the trial court for further proceedings. The trial court is ordered to resolve
the reversion case with utmost dispatch.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice