1

DASMARIAS GARMENTS, INC., petitioner, vs. HON. RUBEN T. REYES,

Judge, Regional Trial Court, Manila, Branch 50, and AMERICAN
PRESIDENT LINES, LTD., respondents.
[G.R. No. 108229 August 24, 1993 NARVASA, C.J .:]

TOPIC: Mode of Discovery - Deposition
DOCTRINE: Deposition was allowed by the Court because the case is an
example of one of the exemptions mentioned in RoC and the deposition
would still be admissible because Dasmarinas would still have the
opportunity to question the testimonies by submitting cross-interrogatories.
FACTS:
1. American President Lines, Ltd.(APL) sued Dasmarias Garments,
Inc (Dasmarias). 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.
2. Dasmarias specifically denied any liability to APL and set up
compulsory counterclaims against it.
3. 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
a. It further 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 . . . "
b. 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.,"
i. APL prayed that prayed "that commission or
letters rogatory be issued addressed to Director
Joaquin Roces, Executive Director, Asian
Executive Exchange Center, Inc., Room 901, 112
Chunghsiao, E. Road, Section 1, Taipe, Republic of
China, to hear and take the oral deposition of the
aforenamed persons . . . ."
4. Motion was opposed by Dasmarias contending the following:
a. 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;"
c. the Rules of Court "expressly require that the testimony of a
witness must be taken orally in open court and not by
deposition."
5. APL submitted to the RTC the following:
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;"
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.
6. RTC favored APL, granting the motion to take testimonies of
plaintiff's Taiwanese witnesses, Kenneth H. Lee and Yeong Fah Yeh,
by deposition (upon written interrogatories)
a. It opined that "the Asian Exchange Center, Inc. being the
authorized Philippine representative in Taiwan, may take the
testimonies of plaintiff's witnesses residing there by
deposition, but only upon written interrogatoriesso as to give
defendant the opportunity to cross-examine the witnesses by
serving cross-examination."
7. Dasmarias filed a motion fro reconsideration alleging that:
a. 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
b. AECI's articles of incorporation show that it is not vested with
any such authority;
c. to permit deposition-taking by commission without the
authority of the foreign state in which deposition is taken
constitutes infringement of judicial sovereignty
d. 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."
8. RTC denied the MR for being filed out of time and being a mere
rehash of arguments already passed upon. It also ordered APL "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."
9. Dasmarias instituted a special civil action of certiorari in the CA to
nullify the orders of the Trial Court just described.
2

a. CA denied the petition for certiorari
b. Dasmarias sought reconsideration of an adverse
disposition, and once again, was rebuffed. Its motion for
reconsideration was denied in a Resolution of the CA
10. Dasmarias appealed to the SC with the following arguments:
a. 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
c. the situation is inherently unfair for allowing 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 Dasmarias is obligated to
bring and present its witnesses in open court subject to the
prying eyes and probing questions of the Judge;"
d. sanctioning the deposition taking of APL 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

ISSUE: Whether 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.

HELD: YES
1. 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.
2. Depositions, and the other modes of discovery 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.
3. 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.
a. they are not therefore generally meant to be a substitute for
the actual testimony in open court of a party or witness.
b. 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.
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.
c. 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 since theres no
opportunity to cross-examine the deponent at the time
that his testimony is offered
4. 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 mentioned ine Section 4,
Rule 24, ROC.
5. 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.
6. How depositions are taken:
a. In the Philippines: deposition "shall be taken before any
judge, municipal or notary public" (Sec. 10, Rule 24, Rules of
Court).
b. In a foreign country: (a) on notice before a secretary or
embassy or legation, consul general, consul, vice-consul, or
consular agent of the Republic of the Philippines, or (b)
before such person or officer as may be appointed by
commission or under letters rogatory" (Sec. 11, Rule 24).
i. 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).
ii. 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
3

"before such person or officer as may be appointed
by commission or under letters rogatory. Section 12,
Rule 24
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)."
iii. Commission: an 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
1. addressed to officers . . . designated . . .
either by name or descriptive title
iv. Letters rogatory: an 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
1. addressed to some "appropriate judicial
authority in the foreign state."
2. 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
c. 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. . . . "
i. The court intervenes in the process only if a party
moves (1) to "enlarge or shorten the time" stated in
the notice, 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).
7. In the case at bar, RTC 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)"
a. A prima facie showing not rebutted by Dasmarinas that the
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.
b. It also appears that the commission is to be coursed through
DFA under Circular No. 4 issued by CJ Teehankee pursuant
to DFA directing all judges of the RTC, MeTC, MTC in Cities
and MTC and MCTC to course all requests for the taking of
deposition of witnesses residing abroad through the DFA 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.
8. On the One-China Policy: 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.
9. 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. What the law authorizes the taking of depositions of
witnesses before or after an appeal is taken from the judgment
of a RTC "to perpetuate their testimony for use in the event of
further proceedings in the said court", and even during the
process of execution of a final and executory judgment
10. 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.
a. 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
4

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
b. RTC 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.
c. 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.
i. even if the depositions were to be taken on oral
examination in Taipei, the adverse party is still
accorded full right to cross-examine the
deponents by the law, either by proceeding to
Taipei and there conducting the cross-
examination orally, or opting to conduct said
cross-examination merely by serving cross-
interrogatories.



The Fundamentals of Deposition Upon Written Interrogatories
By SEVERIANO S. TABIOS
TOPIC: Modes of Discovery Deposition
Cited Case: Dearing vs. Fred Wilson & Co., Inc.
FACTS:
1. This case is an example of how written interrogatories are made use as
a vehicle of advocacy.
2. After the plaintiff, W. W. Dearing, had filed a case in the Court of First
Instance of Manila against the defendant, Fred Wilson & Co., Inc.
claiming damages under the terms of an employment contract
entered between them, he left for the United States so that before the
trial of the case on the merits his counsel filed a notice to take his
deposition in Los Angeles, U.S.A. upon written interrogatories.
3. On the other hand, because of the announcement of plaintiff s counsel
that plaintiff intended to present no other evidence in the case except his
deposition sought to be taken, defendant through counsel interposed an
objection alleging that it was improper and violative of the spirit of the
Rules of Court for said plaintiff to establish his case only by deposition.
4. Subsequently, upon being informed that the lower court had received the
deposition of plaintiff, defendant filed a motion to strike out and suppress
the deposition on the ground that the provisions of the Rules of Court
requiring notice to be given by the officer taking the deposition had not
been complied with.
5. Moreover, after the trial court had denied defendants motion to strike out
and suppress deposition, defendant interposed another objection, this
time during trial, on the ground that plaintiff failed to show that the
requisites provided in the Rules of Court had been satisfactorily complied
with and that, furthermore, said deposition had been irregularly and
improperly taken because the procedure followed by the officer who took
said deposition, the Vice Consul of the Republic of the Philippines for
Los Angeles, California, U.S.A., did not follow the requirement that the
testimony of the deponent be taken stenographically.
ISSUE:
WON Plaintiff Dearings deposition was improper and violative of the
Rules of Court.

HELD:
No. When the case reached the Supreme Court, the High Tribunal after
observing that the private respondent admittedly received notice from the
lower court of the filing with it of petitioners deposition taken abroad
before a vice consul declared that such notice from the court or any
similar one for that matter, provided the adverse party is informed of
such filing should be considered sufficient substantial compliance with
the rules.
Furthermore, the Supreme Court said that it could not see any point at all
in the objection of private respondent, sustained by the Court of Appeals,
that the deposition was taken directly on the typewriter instead of
stenographically as specified in the rules, particularly because
respondent has not alleged any error or mistake prejudicial to it in the
typing of the deposition, for in many instances, taking of a deposition
5

direct on the typewriter is even more convenient because the deponent
can readily read his testimony even while it is being recorded and could
always immediately call attention to any error therein.
NOTE: In this annotation, the author discusses the concept of this kind of
discovery.
The Concept of Deposition Upon Written interrogatories
It should be remembered that a deposition upon written interrogatories is one
of the modes of discovery recognized under Rule 24 of the Rules of Court.
A deposition upon written interrogatories is an instrument of discovery
whereby the party desiring to avail of it serves upon every other party with a
notice stating the name and address of the person who is to answer them
and the name or descriptive title and address of the officer before whom the
deposition is to be taken.2 It is availed of after jurisdiction has been obtained
over any defendant or over property which is the subject of the action but by
leave of court or if an answer to the complaint has already been served it
may be availed of without such leave.3 As the deposition is taken during the
pendency of an action, it is distinguished by the phrase de bene esse.
The right to take deposition de bene esse is sometime conditioned upon the
existence of specified grounds, such as, among others, the impending
departure of the proposed deponent from the country, or that certain facts
could not be elicited except by means of a deposition.5 However, as the
taking of deposition is discretionary, the judge of the lower court cannot be
compelled to take the depositions or fix another date for it.6
While the taking of deposition is discretionary on the part of the court, denial
of a request to take deposition should not be based on flimsy reasons. Thus,
the mere fact that the court could not thereby observe the behavior of the
deponent during the taking of the deposition does not justify the denial of the
right to take deposition as such denial would constitute an abuse of
discretion.7 Therefore, while the grant of authority to take deposition of
witnesses carries with it the authority to exercise discretion in connection
therewith, such discretion conferred by law is not unlimited and should be
exercised, not arbitrarily, capriciously, or oppressively, but in a reasonable
manner and in consonance with the spirit of the law, to the end that its
purposes may be attained.8
In the exercise of its sound discretion, the trial court may grant a
postponement of a case for the purpose of giving the parties the opportunity
to secure the necessary depositions.9 However, if a period of six months
have elapsed from the time a postponement was granted to allow parties to
take depositions of witnesses but depositions have not yet been taken, the
court would be justified to declare the failure of the plaintiff to make efforts to
take deposition as a ground for dismissal as there would then be an
unreasonable delay in prosecuting the case.10
It should be noted that the taking of a deposition has been alluded to as one
in the nature of a fishing expedition. This is because under the Revised
Rules of Court the deponent may be examined regarding any matter, not
privileged, which is relevant to the subject of the pending action, whether
relating to the claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things and the identity and location of persons
having knowledge of relevant facts.12 It can be easily gathered, therefore,
that the scope of the examination is limited to matter which are relevant to
the subject matter involved in the pending action and which are not
privileged, so that subject to such limitations, a deponent may be examined
on any matter relating to the claim or defense of the examining party or to the
claim or defense of any other party to the action.

G.R. No. 97654 November 14, 1994
INSULAR LIFE ASSURANCE CO., LTD., petitioner,
vs.
THE HON. COURT OF APPEALS, THIRTEENTH DIVISION, THE HON.
BIENVENIDO V. REYES, Presiding Judge, Regional Trial Court,
Fourth Judicial Region, San Pablo City, Branch 29, RICARDO L.
BRUCAL, OFELIA A. BRUCAL and DONNA A. BRUCAL, respondents.
Doctrine: The (Trial) Court also entertains the view that the questions
propounded by the defendant in the written interrogatories can be asked
by counsel to the witnesses for the plaintiffs during the trial and secure all
the answers he wants from them, and if he is not satisfied then the matters
sought to be established can be proved through its own evidence.
6


Action: Petition for Certiorari Rule 65
Facts:
1. On 04 April 1989, Ofelia Brucal, together with her daughter Donna
Brucal, herein private respondents, claiming to be the designated
beneficiaries of Horacio Aquino, brother of Ofelia Brucal, brought an
action against Insular Life to recover from the latter the proceeds of
an insurance policy covering the life of now deceased Aquino.
2. In its answer, Insular Life contended that the insurance policy was a
nullity, there having been gross misrepresentation and material
concealment and that, in the death of the insured was not
accidental but deliberate.
3. Before pre-trial, Insular Life filed a motion for leave to file a third-
party complaint against Ofelia Brucal's husband, respondent Ricardo
Brucal, an insurance underwriter of Philam Life Insurance, asserting
that Ricardo Brucal forged, or caused to be forged, the signature of
Ricardo Aquino on the application for insurance coverage.
4. The trial court granted the motion and Ricardo Brucal filed his
answer. The parties thereupon submitted their respective pre-trial
briefs.
5. In the course of the proceedings that followed, Insular Life sent
private respondents a request for admission along with a set of
written interrogatories.
6. Insular Life likewise filed a motion asking the trial court to direct
private respondents to produce six (6) other alleged insurance
policies, as well as other related papers, covering the life of Horacio
Aquino and to allow the inspection of the site where Aquino died.
7. In their manifestation, dated 02 March 1990, private respondents
averred that the request of Insular Life was merely designed to
delay the proceedings and just a fishing expedition."
8. The trial court, in its 13th March 1990 Order, denied the request for
the production of the documents, but allowed the written
interrogatories and ordered that the plaintiffs and third-party
defendant must answer the interrogatories within a period of ten
(10) days from receipt of the trial courts order
9. Private respondents failed to give their answers to the
interrogatories.
10. On the scheduled initial presentation of evidence by private
respondents on 13 June 1990, private respondents still had not
provided any answer to the written interrogatories, prompting
Insular Life to file a motion to dismiss the complaint and to declare
third party defendant Rodolfo Brucal in default.
11. In an Order, dated 05 July 1990, the trial court denied the motion of
Insular Life, holding that "substantial justice (would) be better
served if the case (were to be) decided on (the) merits.
12. The denial was reiterated in its July 1990 Order, but the court re-
scheduled the hearing "to give (Insular Life) ample time to elevate
the matter to the higher courts and (to) secure a ruling thereon."
13. Two months later, or on 01 October 1990, Insular Life filed with the
Court of Appeals its petition for certiorari, injunction and
mandamus, with prayer for temporary restraining order, assailing
the 5th July 1990 Order of the trial court.
a. On 11 October 1990, the appellate court issued a
restraining order.
14. On 07 January 1991, the Court of Appeals rendered its questioned
decision ultimately denying Insular Life's petition and remanding the
case to the trial court for further proceedings.

Issue:
1. Should the trial court have dismissed the case because of failure of
the respondents to answer the written interrogatories?

Held: No!
1. Sections 1 and 2, Rule 25, of the Rules of Court, on the matter of
written interrogatories, state:

Sec. 1. Interrogatories to parties, service thereof. Under
the same conditions specified in Section 1 of Rule 24, any
party may serve upon any adverse party written
interrogatories to be answered by the party served . . . .

Sec. 2. Answer to interrogatories. The interrogatories
shall be answered separately and fully in writing under
oath. The answer shall be signed by the person making
7

them, and the party upon whom the interrogatories have
been served shall serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) days after
service of the interrogatories, unless the court on motion
and notice and for good cause shown, enlarges or shortens
the time.

2. In order to give life to the provisions on interrogatories, Section 5,
Rule 29, of the Revised Rules of Court provides:

Sec. 5. Failure of party to attend or serve answers. If a
party or an officer or managing agent of a party wilfully fails
to appear before the officer who is to take his deposition,
after being served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25, after
proper service of such interrogatories, the court on motion
and notice, may strike out all or any part of any pleading
of that party, or dismiss the action or proceeding or any
part thereof, or enter a judgment by default against that
party, and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney's fees.
(Emphasis supplied)

3. The matter of how, and when, the above sanctions should be
applied is one that primarily rests on the sound discretion of the
court where the case pends, having always in mind the paramount
and overriding interest of justice.
4. In the case at bench, the trial court, opted to decide the case on its
merits. In its Order of 31 July 1990:
a. The Court is of the considered view that the greater interest
of justice will be better served if the case is tried absent any
advantage because of technicalities. The Court is not
unmindful of the failure of the plaintiffs' counsel to heed
the order of the Court and is not pleased at all with it. But
it is guided by established Jurisprudence directing a liberal
application of procedural rules.

xxx xxx xxx

b. The Court also entertains the view that the questions
propounded by the defendant in the written interrogatories
can be asked by counsel to the witnesses for the plaintiffs
during the trial and secure all the answers he wants from
them, and if he is not satisfied then the matters sought to
be established can be proved through its own evidence.
5. The CA sustained this.
6. The real question now before us is whether or not the trial court
has committed grave abuse of discretion in its questioned order.
a. We are not inclined to conclude that any such clear
transgression has been committed by the court a quo.
7. While we do not see the disquisitions made by both the court a quo
and the appellate court to be lacking in good coherence, we find it
appropriate, nonetheless, to say here once again that the
discovery methods under our Rules of Court do not deserve to be
taken lightly.
a. These discovery rules can contribute in no small measure to
the simplification of issues, and in thereby hastening the
disposition of cases.
8. At a time particularly when the judiciary is being burdened by a
backlog of cases and faced with yet an apparent propensity of
parties to fully litigate their disputes, large or small, it should
compel us even more now than before to pay close attention to
and heed the Court's call.


[G.R. No. 118438. December 4, 1998]
ALLIED AGRI-BUSINESS DEVELOPMENT CO.,
INC., vs. COURT OF APPEALS and CHERRY VALLEY FARMS
LIMITED, respondents.

8

DOCTRINE: Failure to answer a request for admission within the
period set by the court will admit the matters in the request for
admission.

NATURE: Appeal

FACTS:

1. Respondent Cherry Valley Farms Limited (CHERRY VALLEY), a
foreign company based in England, filed against petitioner Allied Agri-
Business Development Co. Inc. (ALLIED) a complaint with the RTC
of Makati City for collection of sum of money alleging, among
others that:

(a) CHERRY VALLEY is a foreign corporation with principal office at
Rothwell, Lincoln, England;

(b) 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;

(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 inviting the latter to be a stockholder in a
new corporation to be formed by ALLIED, which invitation however
was rejected by CHERRY VALLEY; and,

(e) ALLIED's president Ricardo Quintos expressly acknowledged
through a letter the obligation of his corporation to CHERRY
VALLEY.


2. ALLIED filed an answer

denying the material allegations of the
complaint and contended that:
(a) private respondent CHERRY VALLEY lacked the legal capacity to
sue;

(b) the letter of Quintos to CHERRY VALLEY was never
authorized by the board of petitioner ALLIED, thus any
admission made in that letter could not bind ALLIED;

(c) the alleged amount of 51,245.12 did not represent the true and
real obligation, if any, of petitioner;

(d) to the best of the knowledge of ALLIED, not all ducks and
ducklings covered and represented by CHERRY VALLEYs invoices
were actually ordered by the former; and,

(e) private respondent had no cause of action against petitioner.

3. CHERRY VALLEY served on ALLIEDs counsel a Request for
Admission of the above-mentioned allegations in the complaint.


4. ALLIED filed its Comments/Objections 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.

5. In its Reply 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.

6. TC issued an Order disregarding ALLIEDs Comments/Objections
to Request for Admission in view of its non-compliance with Sec. 2,
Rule 26, of the Rules of Court and directing ALLIED to answer the
request for admission within ten (10) days from receipt of the order,
9

otherwise, the matters contained in the request would be
deemed admitted. Allieds MR: Denied.

7. 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.

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

9. TC rendered judgment

against petitioner. ALLIED appealed to the
Court of Appeals.
10. CA: rendered a decision affirming the summary judgment
rendered by the TC 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.


ISSUE: WON the summary judgment was tantamount to a denial of
ALLIEDs right to due process for not requiring CHERRY VALLEY to
produce its own witness?

HELD: NO. Petitioner fails to answer the request for admission by the
respondent within the period set by the court pursuant to Sec. 1 of
Rule 26

RATIO:
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.

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
10

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. 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.

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. By its failure to answer the other partys request
for admission, petitioner has admitted all the material facts necessary
for judgment against itself.


PEOPLE OF THE PHILIPPINES, petitioner vs. HUBERT JEFFREY P. WEBB, respondent
Date: August 17, 1999
Ponente: Justice Ynares-Santiago
Original Action: Criminal Case for Rape with Homicide
Nature of Action in the SC: Petition for review on certiorari
Doctrine:

Facts:
1. During the course of the proceedings in the trial court, respondent filed on
May 2, 1997, a Motion to Take Testimony by Oral Deposition

praying that
he be allowed to take the testimonies of the following people before the
general consul, consul, vice-consul or consular agent of the Philippines.
a. Steven Bucher: Acting Chief, Records Services Branch, U.S.
Department of Justice, Immigration and Naturalization Service in
Washington
b. Debora Farmer: Records Operations, Office of Records, U.S.
Department of Justice, Immigration and Naturalization Service in
Washington
c. Jaci Alston: Department of Motor Vehicles in Sacramento,
California
d. Ami Smalley: Department of Motor Vehicles in Sacramento,
California
e. John Pavlisin: California
i. Respondents alleged 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.
2. 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.
3. The prosecution filed an opposition to the said motion:
a. Rule 24, Section 4 of the Rules of Court, contrary to the
representation of respondent-accused, has no application in
criminal cases;
b. 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;
11

c. Rule 19, 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.
4. TC: 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.
5. MR was filed on the following grounds:
a. The 1997 Rules of Court expressly allows the taking of
depositions, and
b. 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 w
6. MR: Denied
7. CA: Petition for Certiorari
a. Respondent Webb argued:
i. The taking of depositions pending action is applicable to
criminal proceedings;
ii. Depositions by oral testimony in a foreign country can be
taken before a consular officer of the Philippine Embassy
in the United States; and,
iii. 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.
b. People contended:
i. 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:
1. The motion failed to comply with the
requirements of Section 4, Rule 119 of the Rules
of Court;
2. The conditional examination must be conducted
before an inferior court; and
3. The examination of the witnesses must be done
in open court.
c. Lauro Vizconde sought the dismissal of the petition contending:
i. The public respondent did not commit grave abuse of
discretion in denying petitioner [now herein respondent]
Webb's motion to take testimony by oral deposition
dated 29 April 1997 as well as petitioner's motion for
reconsideration dated 23 June 1997 for not being
sanctioned by the Rules of Court.
1. 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.
2. 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.
3. 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.
ii. The public respondent did not commit any grave abuse
of discretion in denying petitioner Webb's 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.
8. CA: ANNULLED and SET ASIDE the TCs decision and 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.

Issue: Whether the motion to take testimony by oral depositions in the United
States which would be used in the criminal case before her Court should have been
denied.
Held: YES
1. 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 court, or under a general law or
court rule on the subject, and reduce to writing and duly authenticated,
and intended to be used in preparation and upon the trial of a civil or a
criminal prosecution.
a. A pretrial discovery device by which one party (through his or her
attorney) ask 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
12

court room, usually in one of the lawyer's offices. A transcript is
made of the deposition.
b. Testimony of a witness, taken in writing, under oath or
affirmation, before some judicial officer in answer to questions or
interrogatories
2. The purposes of taking depositions are to:
a. Give greater assistance to the parties in ascertaining the truth
and in checking and preventing perjury;
b. Provide an effective means of detecting and exposing false,
fraudulent claims and defenses;
c. Make available in a simple, convenient and inexpensive way,
facts which otherwise could not be proved except with great
difficulty;
d. Educate the parties in advance of trial as to the real value of
their claims and defenses thereby encouraging settlements;
e. Expedite litigation;
f. Safeguard against surprise;
g. Prevent delay;
h. Simplify and narrow the issues; and
i. Expedite and facilitate both preparation and trial.
3. A deposition should be taken before and not during trial.
4. Rules on criminal practice particularly on the defense of alibi, which is
respondent's 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.
5. 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 the defense exhibits "218" and "219
a. But this issue has, however, long been rendered moot and
academic by the admission of the documentary exhibits by the
trial court in its previous order.
6. 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 some exhibits 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.
7. The 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 respondent's 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.
a. In this regard, it bears stressing that under Section 6, Rule 113 of
the Revised Rules of Court, 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.
8. The trial court cannot be faulted with lack of caution in denying
respondent's motion considering that under the prevailing facts of the
case, respondent had more than ample opportunity to adduce evidence in
his defense. Furthermore, while a litigation is not a game of technicalities,
it is a truism that every case must be prosecuted in accordance with the
prescribed procedure to insure an orderly and speedy administration of
justice.
9. The use of discovery procedures is directed to the sound discretion of the
trial judge. The deposition taking cannot be based nor can it be denied on
flimsy reasons. Discretion has to be exercised in a reasonable manner
and in consonance with the spirit of the law.
10. 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.
11. 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 decide that
the evidence on the matter sought to be proved in the United States could
not possibly add anything substantial to the defense evidence involved.
There is no showing or allegation that the American public officers and the
bicycle store owner can identify respondent Hubert Webb as the very
person mentioned in the public and private documents. Neither is it shown
in this petition that they know, of their own personal knowledge, a person
whom they can identify as the respondent-accused who was actually
present in the United States and not in the Philippines on the specified
dates.

Separate Opinion
CJ Davide: Concurred with the majority
1. The trial court had already admitted the exhibits on which the said
witnesses would have testified, the taking of the depositions would have
been unnecessary.
13

2. The issue of whether the taking of the depositions of such witnesses may
be allowed in criminal cases before the Philippine courts must be squarely
resolved: YES
a. Sec. 4. Application for examination of witness for accused before
trial. When the accused has been held to answer for an
offense, he may, upon motion with notice to all other parties,
have witnesses conditionally examined in his behalf in the manner
hereinafter provided, but not otherwise. The motion shall state:
(a) the name and residence of the witness; (b) the substance of
his testimony; and (c) that the witness is so sick or infirm as to
afford reasonable ground for believing that he will not be able to
attend the trial, or resides more than 100 kilometers from the
place of trial and has no means to attend the same, or that, apart
from the foregoing, other similar circumstances exist that would
make him unavailable or prevent him from attending the trial. The
motion shall be supported by affidavit of the accused and such
other evidence as the court may require.
b. Sec. 5. Examination of defense witness; how made. If the court
is satisfied that the examination of witness for the accused is
necessary, an order will be made directing that the witness be
examined at a specified time and place, and that a copy of the
order be served in the fiscal within a given time prior to that fixed
for the examination. The examination will be taken before any
judge or if not practicable, any member of the Bar in good
standing so designated by the judge in the order, or, if the order
be granted by a court of superior jurisdiction, before an inferior
court to be designated in the order. The examination shall
proceed notwithstanding the absence of the fiscal, if it appears
that he was duly notified of the hearing. A written record of the
testimony shall be taken.
i. These Sections refer to the conditional examination of
defense witnesses, which is "one mode of perpetuating
testimony available to the accused". This deposition,
being to perpetuate testimony, may be done before the
commencement of the trial state, or anytime thereafter,
as the need therefor arises, but before the promulgation
of judgment.
c. Sec. 7. Depositions pending appeal. If an appeal has been taken
from a judgment of a court, including the Court of Appeals in
proper cases, or before the taking of an appeal if the time
therefor has not expired, the court in which the judgment was
rendered may allow the taking of depositions of witnesses to
perpetuate their testimony for use in the event of further
proceedings in the said court. In such case the party who desires
to perpetuate the testimony may make a motion in the said court
for leave to take the depositions, upon the same shall state (a) the
names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each;
and (b) the reason for perpetuating their testimony. If the court
finds that the perpetuation of the testimony is proper to avoid a
failure or delay of justice, it may make an order allowing the
depositions to be taken, and thereupon the depositions may be
taken and used in the same manner and under the same
conditions as are prescribed in the rules for depositions taken
pending actions.
d. The only corollary issue that has to be addressed is how to take
the testimony of a defense witness who is unable to come to
testify in open court because he is a resident of a foreign country.
The Rule on Criminal Procedure is silent on this. I respectfully
submit, however, that the rule on the matter under Rules on Civil
Procedure may be applied suppletorily.
i. Sec. 11. Persons before whom depositions may be taken
in foreign countries. In a foreign state or country,
deposition may be taken (a) on notice before a secretary
of embassy or legation, consul general, consul, vice-
consul, or consular agent of the Republic of the
Philippines; (b) before such person or officer as may be
appointed by commission or under rogatory; or (c) the
person referred to in Section 14 hereof.
ii. There are provisions of the Rule on Civil Procedure which
have been made applicable in criminal cases.
iii. Section 6 of Rule 1 of the 1997 Rule of Civil Procedure
(formerly Sec. 2, Rule 1 of the 1964 Rules of Court),
expressly provides that the rules shall be liberally
construed in order to promote their objective of securing
a just, speedy and inexpensive disposition of every action
and proceeding.

Concurring Opinion
J. Puno: Agrees that respondent Webb's Motion to Take Testimony by Oral
Deposition was correctly denied by the trial court on the ground of lack of
necessity.
1. In civil litigation, the development of these rules came at a faster speed.
By the 1940's, court rules and legislations promoted the ideal of full and
open pre-trial discovery in civil cases. Thus, they provided for depositions,
interrogatories, production of documents, inspection of intangible items
14

and physical and mental examinations. Well to note, our first Rules of
Court followed this highly developed pattern. The liberalization of
discovery and deposition rules in civil litigation highly satisfied the
objective of enhancing the truth-seeking process of litigation as all
relevant evidence are immediately brought up front in the courts.
2. The liberalization of the rules of discovery in criminal procedure in the
United States while slow was unabated. In the 1960's, the movement
received tremendous impetus from a liberal US Supreme Court led by
Chief Justice Earl Warren whose decisions radically expanded the rights of
an accused. For years and until now, proponents and opponents of liberal
defense discovery and depositions in criminal cases continue to lock
horns. Proponents of liberal defense discovery hammer on the need to
make criminal trials "less a game of blind man's bluff and more a fair
contest with the basic issues and facts disclosed to the fullest practicable
extent." Opponents of liberalization argue that three factors distinguish
civil discovery from criminal discovery, viz: "(1) the criminal defendant's
privilege against self-incrimination, which would not permit the fully
reciprocal discovery found in civil practice; (2) the greater likelihood that
defense discovery in criminal cases would be used to facilitate successful
perjury; and (3) the greater likelihood that criminal defense discovery
would lead to the intimidation of witnesses."
3. In the case of the Philippines, the move towards a more liberal discovery
and deposition procedure in criminal cases is even slower but its march,
likewise, appears inexorable. There can be no stepping back for the 1987
Constitution has gone to the extent of constitutionalizing basic rights of
an accused, which has not been done in the United States. With this new
orientation of the Constitution, this Court itself has taken steps to
liberalize our rules of criminal procedure. Thus, Section 1, Rule 118 of our
1985 Rules on Criminal Procedure for the first time ordered the holding of
pre-trial when the accused and the counsel agree. The fruitful experience
of courts holding pre-trial in criminal cases has impelled requests that our
rules be further amended to make it mandatory.


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.
August 28, 2008
G.R. No. 152643
Nature: This is a petition for review on certiorari under Rule 45 of the Rules
of Court, assailing the CA Decision dated Aug, 15, 2001 and its
Resolution dated Mar. 12, 2002. The CA decision set aside the RTC Orders
dated Aug. 25, 2000 granting Concepcion Cuenco Vda. de Manguerras
(Concepcions) motion to take deposition, and dated Nov. 3, 2000

denying
the motion for reconsideration of respondents Raul Risos, Susana Yongco,
Leah Abarquez, and Atty. Gamaliel Bonje.
Doctrine: 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.
Facts:
1. Respondents were charged with Estafa Through Falsification of
Public Document before the RTC of Cebu City, Branch 19. The
case 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.
2. 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.
3. Respondents then 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. On May 11, 2000, the RTC granted the aforesaid motion.
Concepcions motion for reconsideration was denied on June 5,
2000.
4. 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.
5. The counsel of Concepcion filed a motion to take the latters
deposition. He explained the need to perpetuate Concepcions
testimony due to her weak physical condition and old age,
which limited her freedom of mobility.
6. RTC: granted the motion and ordered the taking of the deposition
before the Clerk of Court of the Makati RTC.
15

7. CA: reversed the RTC ruling. It ratiocinated 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 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.

Issue: Whether or not Rule 23 of the 1997 Rules of Civil Procedure applies
to the deposition of Concepcion.

Held:
8. No. It is basic that all witnesses shall give their testimonies at the
trial of the case in the presence of the judge. 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. 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. Lastly, this rule
enables the judge to observe the witnesses' demeanor.
9. This rule however, is not absolute. As exceptions, Rules 23 to 28 of
the Rules of Court provide for 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
of Rule 119, which took effect 1 December 2000, allow the
conditional examination of both the defense and prosecution
witnesses.
10. 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 comes into play and it provides:
Section 15. Examination of witness for 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.
11. Petitioners contend that Concepcion's advanced age and health
condition exempt her from this application of Section 15, Rule
119 of the Rules on Criminal Procedure and thus, calls for the
application of Rule 23 of the Rules of Civil Procedure.
12. 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. Undoubtedly, the procedure
set forth in Rule 119 applies to the case at bar.
13. Petitioners insistence that Rule 23 applies to the instant case,
because the rules on civil procedure apply suppletorily to
criminal cases is likewise untenable.
14. 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.
15. In granting Concepcion's motion and in actually taking her
deposition, the rules were not complied with. 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, the RTC order was
issued with grave abuse of discretion.
16. 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 the Rules of Criminal Procedure.
While we recognize the prosecution's right to preserve its witness testimony
to prove its case, we cannot disregard rules which are designed mainly for
the protection of the accused's constitutional rights. The giving of testimony
during trial is the general rule. The conditional examination of a witness
outside of the trial is only an exception, and as such, calls for a strict
construction of the rules.



16

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.

Topic: Deposition? Forum Shopping?

Doctrine:
1. D: 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.
2. FS: To constitute forum shopping, there should be similarity in the
issue and in the relief.

FACTS:
1. The Republic (through the PCGG) filed a civil complaint for
reconveyance, reversion, accounting, restitution, and damages
against petitioner Herminio Disini, spouses Ferdinand and Imelda
Marcos and Rodolfo Jacob. [1987]
2. The Complaint was amended to include Rafael Sison a party-
defendant.
a. The Amended Complaint alleged that Disini acted in unlawful
concert with his co-defendants in acquiring and
accumulating ill-gotten wealth through the misappropriation
of public funds, plunder of the nations wealth, extortion,
embezzlement, and other acts of corruption.
3. Sandiganbayan issued summons on the Amended Complaint.
a. As to Disini: Returned unserved for the reason that the
Roman family occupied the said residence.
b. Sison and Jacob filed their respective answers
c. Marcos spouses were declared in default.
4. As to his co-defendants:
a. Jacob was dropped as party-defendant considering that he
will testify as a state witness.
b. As to Sison, [1997] the OSG filed a Manifestation and
Urgent Motion to Drop Rafael Sison as Party-Defendant.
5. [1998] the Republic filed an Ex Parte Motion for Leave to Serve
Summons by Publication (in order to acquire jurisdiction over
Disini)
a. During the pendency, Alias of Summons was issued twice
but both summonses were returned unserved.
6. [2002] the Republic filed a Motion to Resolve (the 1998 motion) -
GRANTED
a. The summons and the Amended Complaint were published
in Peoples Tonight, with a copy sent by registered mail to
Disinis last known address.
b. Petitioner was declared in default for failure to file his
responsive pleading within 60 days from the publication of
the summons.
7. Republic asked the Sandiganbayan to resolve the motion filed in
1997 (dropping Sison) so that they could proceed with the ex parte
presentation of evidence.
8. Years after:
a. Counsel of the Republic received an order from the Swiss
Federal Court ordering him to submit a forfeiture order from
a Philippine court with regard to the assets of Disini not later
than Dec. 30, 2006; otherwise, it will revoke the freeze order
on the Disini Swiss Accounts.
9. [2006] Petitioner Disini filed a Motion to Lift Order of Default and
for Leave to File and Admit Attached Answer, together with an
Answer to Amended Complaint with Compulsory
Counterclaims.
a. He maintained that he never received summons nor any
pleadings from the parties.
b. His answer contained affirmative defenses such as the
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.
10. Later on, Sandiganbayan granted PCGGs motion to drop Sison
11. Sandiganbayan: Disinis Motion to Lift Default Order is DENIED!
12. Disini filed an extremely urgent motion for reconsideration.
a. He prays that the ex parte presentation of evidence be held
in abeyance until the resolution of the motion.
13. However, Republics ex parte presentation of evidence began before
the Clerk of Court.
14. SC: Disini filed a Petition for Certiorari Rule 65
a. He protests the continuation of the ex parte proceedings
15. Sandiganbayan: Disinis Extremely Urgent MFR is DENIED!
16. The Republic presented 10 witnesses and it filed its Formal Offer of
Evidence.
17. Despite the pendency of his Petition (Rule 65) with the SC, Disini
filed with the Sandiganbayan a Second Motion to Lift the Order of
Default.
18. From 2009-10, he filed different motions before the Sandiganbayan:
17

a. Petitioner filed a Motion to Expunge or Cross-Examine
Plaintiffs Witnesses.
b. He also filed a Motion to Expunge Evidence
c. He filed a Motion to Expunge Rolando Gapuds Deposition
d. He filed a Motion to Expunge or Cross-Examine Plaintiffs
witnesses.
e. He filed a Motion for Leave to Take Deposition.

ISSUE#1: W/N the issue of Validity of Service of Summons is Mooted by
Voluntary Appearance

HELD: Yes
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: (see #19 facts)
(a) Motion to Expunge Exhibits xxx c,) xxx
(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 (letter F) Motion for Leave to Take
Deposition, 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.
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.
ISSUE#2: W/N there was Forum-shopping
Held: Yes.
A Second Motion to Lift the Order of Default was filed 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. Forum shopping is a
prohibited malpractice and condemned as trifling with the courts and their
processes. It is proscribed because it unnecessarily burdens the courts with
heavy caseloads, and unduly taxes the manpower and financial resources of
the judiciary. It is inimical to the orderly administration of justice as it creates
the possibility of conflicting decisions being rendered by two courts, and
opens the system to the possibility of manipulation.
WHEREFORE, the Petition for Certiorari is DISMISSED. Costs against
petitioner.