RULE 23
in open court if required during the trial on the
G.R. No. 108119 January 19, 1994
FORTUNE CORPORATION, petitioner,
vs.
HON. COURT OF APPEALS AND
INTER-MERCHANTS
CORPORATION, respondents.
Antonio L. Azores for petitioner.
Estella and Virtudazo Law Firm for private
respondent.
REGALADO, J.:
This petition impugns and seeks the review
on certiorari of the decision1 of respondent Court
of Appeals, dated September 23, 1992, which
affirmed the order of the Regional Trial Court of
San Pablo City disallowing the taking of the oral
deposition of Juanito S. Teope, Chairman of the
Board of Directors of herein private respondent
Inter-Merchants Corporation.
An action for breach of contract was filed by
petitioner Fortune Corporation against
respondent Inter-Merchants Corporation,
docketed as Civil Case No. SP-3469, before the
Regional Trial Court of San Pablo City, Branch
30. After respondent corporation had filed its
Answer, petitioner served the former with written
interrogatories pursuant to Rule 25 of the Rules
of Court. The interrogatories were answered by
respondent corporation through its board
chairman, Juanito A. Teope.
The pre-trial conference was thereafter
scheduled for January 9, February 12 and April
22, 1992.
On March 26, 1992, however, petitioner served
upon private respondent a Notice to Take
Deposition Upon Oral Examination2 dated March
26, 1992, notifying the latter that on April 7, 1992,
at San Pablo City, herein petitioner would take
the deposition of said Juanito A. Teope, in
accordance with Section 15, Rule 24.
Private respondent filed an Urgent Motion Not
To Take Deposition/Vehement Opposition to
Plaintiff's Notice to Take Deposition Upon Oral
Examination,3 dated March 27, 1992,
alleging inter alia that : (a) herein petitioner has
previously availed of one mode of discovery, that
is, the written interrogatories which practically
covered all the claims, counterclaims and
defenses in the case; (b) there is absolutely no
sound reason or justification advanced for the
taking of the oral deposition; (c) such taking
would cause annoyance, embarrassment and
oppression upon the prospective deponent,
Juanito A. Teope; (d) Mr. Teope has no intention
of leaving the country; and
(e) the intended deponent is available to testify
merits.
The trial court thereafter issued on April 3, 1992
an order4 that the requested deposition shall not
be taken for the following reasons:
. . . , the Court opines that the deposition of
Juanito A. Teope set on April 7, 1992, appears
unwarranted since the proposed deponent had
earlier responded to the written interrogatories of
the plaintiff and has signified his availability to
testify in court.
To allow the deposition will deprive the Court of
the opportunity to ask clarificatory questions, if
any, on the proposed deponent who appears to
be a vital witness.
Its motion for reconsideration having been
denied, petitioner filed an original action
for certiorari before the Supreme Court which
was docketed as G.R. No. 101526. However, in
a resolution dated May 20, 1992, this Court
referred the case to the Court of Appeals for
consideration and adjudication on the merits.
As earlier stated, respondent Court of Appeals
promulgated a decision on September 23, 1992,
dismissing the petition and holding that:
It cannot be gainsaid that the respondent court
has jurisdiction to direct, in its discretion, that a
deposition shall not be taken, if there are valid
reasons for so ruling. This is provided for in
Sections 16 and 18,
Rule 24 of the Rules of Court. Said sections
imply that the right of a party to take depositions
as means of discovery is not absolute. Thus, as
held in the case of Caguiat vs. Torres, 30 SCRA
106, 110:
. . . sections 16 and 18 of Rule 24, (which) are
precisely designed to protect parties and their
witnesses, whenever in the opinion of the trial
court, the move to take their depositions under
the guise of discovery is actually intended to only
annoy, embarrass or oppress them. In such
instances, these provisions expressly authorize
the court to either prevent the taking of a
deposition or stop one that is already being
taken.
Moreover, the respondent court, in its assailed
Order, has indicated at least three (3) valid
reasons for it not to order the deposition taken:
First, that the proposed deponent had earlier
responded to the written Interrogatories; Second,
that the proposed deponent had signified his
availability to testify in court; and Third, that to
allow the deposition would deprive the trial court
of the opportunity to ask clarificatory questions, if
any, on the proposed deponent who appears to
be a vital witness.
Finally, anent private respondent's contention
that certiorari does not lie in this case, it should
be recalled that certiorari presupposes either
lack or excess of jurisdiction or grave abuse of
discretion. In the instant case, no question of
jurisdiction is possible simply because the
respondent court undoubtly had jurisdiction over
petitioner's case. On the question of abuse of
discretion, appeal and not certiorariis the proper
remedy for the correction of any error as to the
admission or rejection of a deposition being
offered as evidence since such a situation would
involve an error of law constituting a violation of
rules of evidence. Hence, as held in the case
of Dearing vs. Fredwilson (sic) & Co., Inc., 98
SCRA 758, 764:
. . . . Thus, the jurisprudential rule is that the
admission or rejection of certain interrogatories
in the course of discovery procedure could be an
error of law but not an abuse of discretion, much
less a grave one. . . .
With the denial of petitioner's motion for
reconsideration, the instant petition was filed,
submitting the following issues for resolution:
1. Whether or not the conclusion of the
Honorable Court of Appeals, based on a gross
misapprehension of facts, constitutes reversible
error;
2. Whether or not the said order, based on the
three reasons stated therein, is arbitrary or
whimsical because it is contrary to reason, logic
or equity;
3. Whether or not mere allegation, without proof,
that the examination sought by petitioner was
intended merely to annoy, embarrass or oppress
the proposed deponent is, as a matter of law,
"good cause" within the purview of Rule 24,
Section 16, Rules of Court; and
4. Whether or not, absent the requisite element
of "good cause" as mandated by Section 16 of
Rule 24, Rules of Court, a trial court has
unbridled discretion to forbid the taking of
deposition upon oral examination as authorized
under Rule 24, Section 15, Rules of Court.
Rule 24 of the Rules of Court provides:
Sec. 1. Depositions pending action, when may
be taken. — By leave of court after jurisdiction
has been obtained over any defendant or
property which is the subject of the action, or
without such leave after an answer has been
served, the testimony of any person, whether a
party or not, may be taken, at the instance of any
party, by deposition upon oral examination or
written interrogatories. The attendance of
witnesses may be compelled by the use of a
subpoena as provided in Rule 23. Depositions
shall be taken only in accordance with these
rules. The deposition of a person confined in
prison may be taken only by leave of court on
such terms as the court prescribes.
The seeming unreceptive and negative attitude
of lawyers and the courts towards discovery
procedures has heretofore been observed and
discommended by the Court in this wise:
. . . Now, it appears to the Court that among far
too many lawyers (and not a few judges), there
is, if not a regrettable unfamiliarity and even
outright ignorance about the nature, purposes
and operations of the modes of discovery, at
least a strong yet unreasoned and unreasonable
disinclination to resort to them — which is a
great pity for the intelligent and adequate use of
the deposition-discovery mechanism, coupled
with pre-trial procedure, could, as the experience
of other jurisdictions convincingly demonstrates,
effectively shorten the period of litigation and
speed up adjudication. . . . .5
It would do well, therefore, to point out the finer
attributes of these rules of discovery, the
availment of which, we are convinced, would
contribute immensely to the attainment of the
judiciary's primordial goal of expediting the
disposition of cases.
The rules providing for pre-trial discovery of
testimony, pre-trial inspection of documentary
evidence and other tangible things, and the
examination of property and person, were an
important innovation in the rules of procedure.
The promulgation of this group of rules satisfied
the long-felt need for a legal machinery in the
courts to supplement the pleadings, for the
purpose of disclosing the real points of dispute
between the parties and of affording an
adequate factual basis in preparation for trial.
The rules are not grounded on the supposition
that the pleadings are the only or chief basis of
preparation for trial. On the contrary, the
limitations of the pleadings in this respect are
recognized. In most cases under the rules the
function of the pleadings extends hardly beyond
notification to the opposing parties of the general
nature of a party's claim or defense. It is
recognized that pleadings have not been
successful as fact-sifting mechanisms and that
attempts to force them to serve that purpose
have resulted only in making the pleadings
increasingly complicated and technical, without
any corresponding disclosure of the issues
which it will be necessary to prove at the trial.
Thus the rules provide for simplicity and brevity
in pleadings, which in most cases will terminate
with the answer; and at the same time adapt the
old and familiar deposition procedure to serve as
a device for ascertaining before trial what facts
are really in dispute and need to be tried.
Experience had shown that the most effective
legal machinery for reducing and clarifying the
issues was a preliminary examination, as broad
in scope as the trial itself, of the evidence of both
parties.6
Stated otherwise, the rules seek to make a trial
less a game of blind man's buff and more a fair
contest with the basic issues and facts disclosed
to the fullest practicable extent.7
The elemental purpose of the discovery
procedure was pithily explained by the Court,
speaking through now Chief Justice Andres R.
Narvasa, in the recent case of Republic
vs. Sandiganbayan,8 which opinion, we feel,
should be reiterated through an extended
reproduction, to wit:
The resolution of controversies is, as everyone
knows, the
raison d'etre of courts. This essential function is
accomplished by first, the ascertainment of all
the material and relevant facts from the
pleadings and from the evidence adduced by the
parties, and second, after that determination of
the facts has been completed, by the application
of the law thereto to the end that the controversy
may be settled authoritatively, definitely and
finally.
It is for this reason that a substantial part of the
adjective law in this jurisdiction is occupied with
assuring that all the facts are indeed presented
to the Court; for obviously, to the extent that
adjudication is made on the basis of incomplete
facts, to that extent there is faultiness in the
approximation of objective justice. It is thus the
obligation of lawyers no less than of judges to
see that this objective is attained; that is to say,
that there be no suppression, obscuration,
misrepresentation or distortion of the facts; and
that no party be unaware of any fact material and
relevant to the action, or surprised by any factual
detail suddenly brought to his attention during
the trial.
Seventy-one years ago, in Alonzo vs. Villamor,
this Court described the nature and object of
litigation and in the process laid down the
standards by which judicial contests are to be
conducted in this jurisdiction. It said:
A litigation is not a game of technicalities in
which one, more deeply schooled and skilled in
the subtle art of movement and position, entraps
and destroys the other. It is, rather a contest in
which each contending party fully and fairly lays
before the court the facts in issue and then
brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of
procedure, asks that justice be done on the
merits. Lawsuits, unlike duels, are not be won by
a rapier's thrust. Technicality, when it deserts its
proper office as an aid to justice and becomes its
great hindrance and chief enemy, deserves
scant consideration from courts. There should be
no vested right in technicalities. . . . .
The message is plain. It is the duty of each
contending party to lay before the court the facts
in issue — fully and fairly; i.e., to present to the
court all the material and relevant facts known to
him, suppressing or concealing nothing, nor
preventing another party, by clever and adroit
manipulation of the technical rules of pleading
and evidence, from also presenting all the facts
within his knowledge.
Initially, that undertaking of laying the facts
before the court is accomplished by the
pleadings filed by the parties; but that, only in a
very general way. Only "ultimate facts" are set
forth in the pleadings; hence, only the barest
outline of the factual basis of a party's claims or
defenses is limned in his pleadings. The law
says that every pleading "shall contain in a
methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which
the party pleading relies for his claim or defense,
as the case may be, omitting the statement of
mere evidentiary facts.
Parenthetically, if this requirement is not
observed, i.e., the ultimate facts are alleged too
generally or "not averred with sufficient
definiteness or particularly to enable . . . (an
adverse party) properly to prepare his
responsive pleading or to prepare for trial," a bill
of particulars seeking a "more definite
statement" may be ordered by the court on
motion of a party. The office of a bill of
particulars is, however, limited to making more
particular or definite the ultimate facts in a
pleading. It is not its office to supply evidentiary
matters. And the common perception is that said
evidentiary details are made known to the
parties and the court only during the trial, when
proof is adduced on the issues of fact arising
from the pleadings.
The truth is that "evidentiary matters" may be
inquired into and learned by the parties before
the trail. Indeed, it is the purpose and the policy
of the law that the parties — before the trial if not
indeed even before the pre-trial — should
discover or inform themselves of all the facts
relevant to the action, not only those known to
them individually, but also those known to their
adversaries; in other words, the desideratum is
that civil trials should not be carried on in the
dark; and the Rules of Court make this ideal
possible through the deposition-discovery
mechanism set forth in Rules 24 to 29. The
experience in other jurisdictions has been that
ample discovery before trial, under proper
regulation, accomplished one of the most
necessary ends of modern procedure: It not only
eliminates unessential issues from trial thereby
shortening them considerably, but also requires
parties to play the game with the cards on the
table so that the possibility of fair settlement
before trial is measurably increased. . . . .
As just intimated, the deposition-discovery
procedure was designed to remedy the
conceded inadequacy and cumbersomeness of
the pre-trial functions of notice-giving,
issue-formulation and fact revelation theretofore
performed primarily by the pleadings.
The various modes or instruments of discovery
are meant to serve (1) as a device, along with
the pre-trial hearing under Rule 20, to narrow
and clarify the basic issues between the parties,
and (2) as a device for ascertaining the facts
relative to those issues. The evident purpose is,
to repeat, to enable the parties, consistent with
recognized privileges, to obtain the fullest
possible knowledge of the issues and facts
before civil trials and thus prevent that said trials
are carried on in the dark.
To this end, the field of inquiry that may be
covered by depositions or interrogatories is as
broad as when the interrogated party is called as
witness to testify orally at trial. The inquiry
extends to all facts which are relevant, whether
they be ultimate or evidentiary, expecting only
those matters which are privileged. The objective
is as much to give every party the fullest possible
information of all the relevant facts before the
trial as to obtain evidence for use upon said trial.
The principle is reflected in Sec. 2, Rule 24
(governing depositions ) which generally allows
the examination of a deponent —
1) "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,"
2) as well as:
(a) "the existence, description, nature, custody,
condition and location of any books, documents,
or other tangible things" and
(b) "the identity and location of persons having
knowledge of relevant facts."
What is chiefly contemplated is the discovery of
every bit of information which may be useful in
the preparation for trial, such as the identity and
location of persons having knowledge of relevant
facts; those relevant facts themselves; and the
existence, description, nature, custody, condition,
and location of any books, documents, or other
tangible things. Hence, the deposition-discovery
rules are to be accorded a broad and liberal
treatment. No longer can the time-honored cry of
fishing expedition serve to preclude a party from
inquiring into the facts underlying his opponent's
case. Mutual knowledge of all the relevant facts
gathered by both parties is essential to proper
litigation. To that end, either party may compel
the other to disgorge whatever facts he has in
his possession. The deposition-discovery
procedure simply advances the stage at which
the disclosure can be compelled from the time of
trial to the period preceding it, this reducing the
possibility of surprise. . . . . (Emphases in the
original text.)
The other principal benefits derivable from the
availability and operation of a liberal discovery
procedure are the following:
1. It is of great assistance in ascertaining the
truth and in checking and preventing perjury.
The reasons for this are:
(a) The witness (including a party) is examined
while his memory is fresh:
(b) The witness (including a party) is generally
not coached in preparation for a pre-trial oral
examination with the result that his testimony is
likely to be more spontaneous. Where the
examination is upon written interrogatories,
however, it appears that some lawyers furnish
the witness with copies of the interrogatories and
thereby enable him to prepare his answers in
advance.
(c) A party or witness whose deposition has
been taken at an early stage in the litigation
cannot, at a later date, readily manufacture
testimony in contradiction to his deposition;
(d) Testimony is preserved, so that if a witness
unexpectedly dies or becomes unavailable at the
trial, his deposition is available.
2. It is an effective means of detecting and
exposing false, fraudulent, and sham claims and
defenses.
3. It makes available in a simple, convenient,
and often inexpensive way facts which otherwise
could not have been proved, except with great
difficulty and sometimes not at all.
4. It educates the parties in advance of trial as to
the real value of their claims and defenses,
thereby encouraging settlements out of court.
5. It expediates the disposal of litigation, saves
the time of the courts, and clears the docket of
many cases by settlements and dismissals
which otherwise would have to be tried.
6. It safeguards against surprise at the trial,
prevents delays, and narrows and simplifies the
issues to be tried, thereby expediting the trial.
7. It facilitates both the preparation and trial of
the cases.9
We shall now proceed to resolve the issues
raised by herein petitioner.
I. Petitioner avers that the decision of
respondent court dismissing its petition on the
ground that appeal and not certiorari is the
proper remedy in this case, is erroneous for the
reason that such ruling is based on facts which
are not obtaining in the case at bar, viz.: (a) that
petitioner had already obtained a deposition,
which it had not; (b) that said deposition was
offered as evidence, which was not done
because there was nothing yet to offer; and (c)
that said offer was rejected, which did not
happen because there was nothing to reject as
nothing was offered.
Petitioner claims that since the very purpose of
Rule 24 of the Rules of Court is to authorize the
taking of a deposition in a pending action, either
to make a discovery in preparation for or to be
used as evidence upon the trial of such action,
the taking of the deposition in the case at bar
should be done and finished before trial. Hence,
it would be a grave abuse of discretion to compel
petitioner to proceed with the trial of the case
without the proposed deposition being first
undertaken. Appeal will be utterly inadequate to
remedy the situation because, in that case, the
court shall have rendered its decision without the
petitioner having been afforded the opportunity
to make use of the answers that the deponent
would have otherwise given as a result of the
deposition. Reversal on appeal of the said
decision by the public respondent may only
entail retrial in the lower court and added
expense, as well as unnecessary delay in the
case. By its very nature, the taking of the
deposition in the case at bar should be made
and completed before trial, and the remedy of
appeal to determine whether or not the trial court
committed grave abuse of discretion in denying
the petitioner thereof is neither proper, much
less adequate.
We agree with petitioner.
Under Section 1, Rule 65 of the Rules of Court,
the writ of certiorari lies if the following requisites
concur : (a) that it is directed against a tribunal,
board or officer exercising judicial functions; (b)
that such tribunal, board or officer has acted
without or in excess of jurisdiction or with grave
abuse of discretion; and (c) that there is no
appeal nor any plain, speedy and adequate
remedy in the ordinary course of law.
Section 16 of Rule 24 provides that after notice
is served for taking a deposition by oral
examination, upon motion seasonably made by
any party or by the person to be examined and
upon notice and for good cause shown, the court
in which the action is pending may, among
others, make an order that the deposition shall
not be taken.
This provision explicitly vests in the court the
power to order that the deposition shall not be
taken and this grant connotes the authority to
exercise discretion in connection therewith. It is
well settled, however, that the discretion
conferred by law is not unlimited: that it must 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 purpose may be attained. Referring to the
objective of Section 16 of then Rule 18 (now
Rule 24) of the Rules of Court, former Chief
Justice Manuel V. Moran had these comments:
The advisory of the United States Supreme
Court said that this provision is intended to be
one of the safeguards for the protection of the
parties and deponents on account of the
unrestricted right to discovery given by sections
1 and 2 of this Rule. A party may take the
deposition of a witness who knows nothing about
the case, with the only purpose of annoying him
or wasting the time of the other parties. In such
case, the court may, on motion, order that the
deposition shall not be taken. Or, a party may
designate a distinct place for the taking of a
deposition, and the adverse party may not have
sufficient means to reach that place, because of
poverty or otherwise, in which case the court, on
motion, may order that the deposition be taken
at another place, or that it be taken by written
interrogatories. The party serving the notice may
wish to inquire into matters the disclosure of
which may be oppressive or embarrassing to the
deponent, especially if the disclosure is to be
made in the presence of third persons, or, the
party serving the notice may attempt to inquire
into matters which are absolutely private of the
deponent, the disclosure of which may affect his
interests and is not absolutely essential to the
determination of the issues involved in the case.
Under such circumstances, the court, on motion,
may order "that certain matter shall not be
inquired into or that the scope of the examination
shall be limited to certain matters, or that the
examination shall be held with no one present
except the parties to the action and their officers
or counsel, or that after being sealed the
deposition shall be opened only by order of the
court, or that secret processes, developments, or
research need not be disclosed, or that the
parties shall simultaneously file specific
documents or informations enclosed in sealed
envelopes to be opened as directed by the
court." In other words, this provision affords the
adverse party, as well as the deponent, sufficient
protection against abuses that may be
committed by a party in the exercise of his
unlimited right to discovery. As a writer said:
"Any discovery involves a prying into another
person's affairs, a prying that is quite justified if it
is to be a legitimate aid to litigation, but not
justified if it is not to be such an aid." For this
reason, courts are given ample powers to forbid
discovery which is intended not as an aid to
litigation, but merely to annoy, embarrass or
oppress either the deponent or the adverse party,
or both." 10
The rule is that certiorari will generally not lie to
review a discretionary action of any tribunal. Also,
as a general proposition, a writ of certiorari is
available only to review final judgments or
decrees, and will be refused where there has
been no final judgment or order and the
proceeding for which the writ is sought is still
pending and undetermined in the lower tribunal.
Pursuant to this rule, it has been held
that certiorari will not lie to review or correct
discovery orders made prior to trial. 11 This is
because, like other discovery orders, orders
made under Section 16, Rule 24 are
interlocutory and not appealable, 12 considering
that they do not finally dispose of the proceeding
or of any independent offshoot of it. 13
However, such rules are subject to the exception
that discretionary acts will be reviewed where
the lower court or tribunal has acted without or in
excess of its jurisdiction, where an interlocutory
order does not conform to essential
requirements of law and may reasonably cause
material injury throughout subsequent
proceedings for which the remedy of appeal will
be inadequate, or where there is a clear or
serious abuse of discretion. 14
It is our considered opinion that on the bases of
circumstances obtaining in the case at bar, and
which will hereinavfter be
discussed, certiorari may be availed of to review
the questioned order of the trial court.
II. Petitioner asseverates that the trial court
gravely abused its discretion in ordering that the
deposition be not taken in the absence of good
cause therefor. It asserts that the reasons
advanced by the trial court cannot be considered
"good cause" within the contemplation of the law,
which reasons, to repeat, are: (a) that the
proposed deponent had earlier responded to
written interrogatories; (b) that the proposed
deponent had signified his availability to testify in
court; and (c) that to allow the deposition would
deprive the trial court of the opportunity to ask
clarificatory questions to the vital witness. It
further claims that a mere allegation, without any
proof in support thereof, that petitioner intended
to annoy, harass or oppress the proposed
deponent, and therefore acted in bad faith, is not
sufficient justification to order that the deposition
shall not be taken.
It is true that to ensure that availment of the
modes of discovery would be untrammeled and
efficacious, Rule 29 imposes serious sanctions
on the party who refuses to comply with or
respond to the modes of discovery, such as
dismissing his action or proceeding or part
thereof, or rendering judgment by default against
the disobedient party; contempt of court, or
arrest of the party or agent of the party; payment
of the amount of reasonable expenses incurred
in obtaining a court order to compel discovery;
taking the matters inquired into as established in
accordance with the claim of the party seeking
discovery; refusal to allow the disobedient party
to support or oppose designated claims or
defenses; striking out his pleadings or parts
thereof; or staying further proceedings.
But then, there are concomitant limitations to
discovery, even when permitted to be
undertaken without leave of court and without
judicial intervention. As indicated by the Rules,
limitations inevitably arise when it can be shown
that the examination is being conducted in bad
faith or in such a manner as to annoy, embarrass,
or oppress the person subject to the inquiry. Also,
further limitations come into existence when the
inquiry touches upon the irrelevant or
encroaches upon the recognized domains of
privilege.
In fine, as we have earlier clarified, the liberty of
a party to make discovery is well-nigh
unrestricted if the matters inquired into are
otherwise relevant and not privileged, and the
inquiry is made in good faith and within the
bounds of law.
Section 16 of Rule 24 clearly states that it is only
upon notice and for good cause that the court
may order that the deposition shall not be taken.
The matter of good cause is to be determined by
the court in the exercise of judicial discretion.
Good cause means a substantial reason — one
that affords a legal excuse. Whether or not
substantial reasons exist is for the court to
determine, as there is no hard and fast rule for
determining the question as to what is meant by
the term "for good cause shown." 15
The requirement, however, that good cause be
shown for a protective order puts the burden on
the party seeking relief to show some plainly
adequate reasons for the order. A particular and
specific demonstration of facts, as distinguished
from conclusory statements, is required to
establish good cause for the issuance of a
protective order. 16 What constitutes good cause
furthermore depends upon the kind of protective
order that is sought. 17
In light of the general philosophy of full discovery
of relevant facts and the board statement of
scope in Rule 24, and in view of the power of the
court under Sections 16 and 18 of said Rule to
control the details of time, place, scope, and
financing for the protection of the deponents and
parties, it is fairly rare that it will be ordered that a
deposition should not be taken at all. All motions
under these subparagraphs of the rule must be
supported by "good cause" and a strong
showing is required before a party will be denied
entirely the right to take a deposition. A mere
allegation, without proof, that the deposition is
being taken in bad faith is not a sufficient ground
for such an order. Neither is an allegation that it
will subject the party to a penalty or forfeiture.
The mere fact that the information sought by
deposition has already been obtained through a
bill of particulars, interrogatories, or other
depositions will not suffice, although if it is
entirely repetitious a deposition may be
forbidden. The allegation that the deponent
knows nothing about the matters involved does
not justify prohibiting the taking of a deposition,
nor that whatever the witness knows is protected
by the "work product doctrine," nor that
privileged information or trade secrets will be
sought in the course of the examination, nor that
all the transactions were either conducted or
confirmed in writing. 18
In the present case, private respondent failed to
sufficiently establish that there is good cause to
support the order of the trial court that the
deposition shall not be taken, for several
reasons.
1. We agree with petitioner's submission that the
fact that petitioner had previously availed of the
mode of discovery, which is by written
interrogatories supposedly covering all claims,
counterclaims and defenses in the case, cannot
be considered "good cause", because: (a) the
fact that information similar to that sought had
been obtained by answers to interrogatories
does not bar an examination before trial, and is
not a valid objection to the taking of a deposition
where there is no duplication and the examining
party is not acting in bad faith; and (b)
knowledge of the facts by the petitioner
concerning which the proposed deponent is to
be examined does not justify a refusal of such
examination.
As a general rule, the scope of discovery is to be
liberally construed so as to provide the litigants
with information essential to the expenditious
and proper litigation of each of the facts in
dispute. Moreover, it cannot be disputed that the
various methods of discovery as provided for in
the Rules are clearly intended to be cumulative,
as opposed to alternative or mutually
exclusive. 19
The issue of whether a party who has resorted to
a particular method of discovery will be barred in
subsequently using other discovery devices has
been definitely discussed and resolved as
follows:
On the question of whether an oral deposition
might be taken after service of interrogatories,
the courts took a relatively liberal view. In
Howard v. States Marine Corp., the first case in
which this question was raised, Judge Hilbert
said that:
Where it develops that examination by
interrogatories has been inadequate, the court
unquestionably has, and in a proper case should
exercise, discretion to permit an oral
examination. But it should be made to clearly
appear that the relevant subject matter will not
involve the interrogation of the witness with
respect to those particulars upon which he was
examined by interrogatories.
In Canuso v. City of Niagara Falls, the fact that a
bill of particulars had previously been served and
interrogatories answered was held no objection
to an oral examination since no duplication was
involved and bad faith had not been shown. And
in Alfred Bell & Co. v. Catalda Fine Arts, Inc.,
oral examination was allowed, even though the
individual had previously answered
interrogatories, except as to matters with respect
to which he had "given responsive and
categorical testimony." 20
It is quite clear, therefore, and we so hold that
under the present Rules the fact that a party has
resorted to a particular method of discovery will
not bar subsequent use of other discovery
devices, as long as the party is not attempting to
circumvent a ruling of the court, or to harass or
oppress the other party. As a matter of practice,
it will often be desirable to resort to both
interrogatories and depositions in one or the
other sequence. Additional lines of inquiry may
come to light after the deposition has been taken,
as to which written interrogatories probably
would be adequate, and there is no reason why
the examining party should not be entitled to
obtain all the relevant information he desires if
no substantial prejudice is done to the party from
whom discovery is sought. On the other hand,
interrogatories may well be used as a
preliminary to the taking of depositions, in order
to ascertain what individuals have the
information sought. And, of course, if the
answers to interrogatories are evasive and
unsatisfactory, the interrogating party should be
able to utilize the more effective method of oral
examination rather than have to reframe
interrogatories. Ordinarily, however, there will be
no occasion for a party to use both methods at
the same time, at least to obtain the same
information. 21
It has long been recognized that there are far
greater advantages in obtaining the facts and
circumstances involved in a confronting
examination than in a written one. Hence:
1. Examination by interrogatories is both more
cumbersome and less efficient than oral
examination before trial. Where it develops that
examination by interrogatories has been
inadequate, the court unquestionably has, and in
a proper case should exercise, discretion to
permit an oral examination. But it should be
made to clearly appear that the relevant subject
matter will not involve the interrogation of the
witness with respect to those particulars upon
which he was examined by
interrogatories. 22
2. In actual effectiveness, interrogatories are far
inferior to the oral examination. Their defects are
quite obvious. In the first place, they give the
party to whom they are addressed more time to
study their effect, which furnishes a better
opportunity to frame protective answers which
conceal or evade. In the next place, as a means
of forcing a specific, detailed and thorough
disclosure from a reluctant party, there is a
tendency for the interrogatories to grow in
number, complexity and variety of form so as to
call for as many aspects of the proof as possible,
with the result that they often become difficult to
administer. . . . .
In view of these limitations upon the
effectiveness of written interrogatories, it is
evident that they are not well adapted for the
purpose of general examination. It is only when
the facts sought are few, formal and isolated,
that this method can be satisfactorily employed.
So long as the discovery is restricted to the case
of the examiner, and he is not permitted to
inquire into the case of his adversary, the facts
sought by discovery will usually be few, formal
and isolated, and written interrogatories will
perhaps serve reasonably well. For a small task,
a feeble instrument may suffice. But if discovery
is to involve a thorough inquiry into the vital and
highly controversial phases of the case, resort
must be had to an oral examination. . . . .
. . . Where the facts to be elicited are relatively
few and important, whether ultimate facts or
evidentiary facts, the legal machinery of
interrogatories is a very useful, expeditious and
inexpensive method; but where they are very
numerous, . . . they tend to become unduly
burdensome, oppressive and vexatious to the
adverse party and difficult for the court to
administer. . . . . Furthermore, the procedure
tends to be unnecessarily wasteful of judicial
time. The judicial ruling upon the interrogatories
themselves is not necessarily conclusive or even
important in most cases as determinative of the
issues in the case. The purpose of the
interrogating party is to develop information or
force admission; but if the answers are not
satisfactory or useful, the time spent in
considering them and the objections thereto is
generally wasted, because the answers do not
become evidence in the case unless voluntarily
introduced by the interrogator as admissions
against interest on the part of the party
interrogated.
. . . Where a more comprehensive examination
of the adverse party is desired it should ordinarily
be done by taking his deposition. 23
3. The obvious advantage of interrogatories over
a deposition is that they are much less
expensive. There is no significant expense for
the party sending the interrogatories except for
the time spent in preparing the questions. In
addition, interrogatories are a much simpler
device. There are none of the details that must
be taken care of in arranging for a deposition,
such as obtaining a court reporter and fixing the
time and place for the examination.
On the other hand, depositions are preferable if
a searching interrogation of the other party is
desired. At a deposition, the examining party has
great flexibility and can frame his questions on
the basis of answers to previous questions.
Moreover, the party being examined does not
have the opportunity to study the questions in
advance and to consult with his attorney before
answering, as he does if interrogatories are used.
Attempts at evasion, which might be met by a
persistent oral examination, cannot be easily
dealt with by interrogatories. The flexibility and
the potency of oral depositions is in large part
lacking in written interrogatories. It is for these
reasons that depositions are . . . by far the most
widely used of the discovery devices.
xxx xxx xxx
Furthermore, . . . written interrogatories are most
valuable as a device to compel admissions and
the disclosure of major factual matters not
concerned with details; the deposition is the best
device suited to compel disclosure of detailed
information. 24
2. The availability of the proposed deponent to
testify in court does not constitute "good cause"
to justify the court's order that his deposition
shall not be taken. That the witness is unable to
attend or testify is one of the grounds when the
deposition of a witness may be used in court
during the trial. 25 But the same reason cannot
be successfully invoked to prohibit the taking of
his deposition.
The right to take statements and the right to use
them in court have been kept entirely distinct.
The utmost freedom is allowed in taking
depositions; restrictions are imposed upon their
use. As a result, there is accorded the widest
possible opportunity for knowledge by both
parties of all the facts before the trial. Such of
this testimony as may be appropriate for use as
a substitute for viva voce examination may be
introduced at the trial; the remainder of the
testimony, having served its purpose in revealing
the facts to the parties before trial, drops out of
judicial picture. 26
Regardless of the development of devices for
pre-trial fact investigation, our legal system is
now thoroughly committed to the notion that on
trial itself the adducing of facts by viva
voce testimony of witnesses — whose
demeanor and manner are subject to the
observation of the judge — is superior to the use
of written statements of the same witnesses.
Preference for oral testimony has dictated most
of the limitations on the use of depositions as
evidence. And since their use as evidence was
originally conceived as the sole function of
depositions proper, the limitations on their taking
dovetailed with the limitations on their use. But
under the concept adopted by the new Rules,
the deposition serves the double function of a
method of discovery — with use on trial not
necessarily contemplated — and a method of
presenting testimony. Accordingly, no limitations
other than relevancy and privilege have been
placed on the taking of depositions, while the
use at the trial is subject to circumscriptions
looking toward the use of oral testimony
wherever practicable. 27
3. We are also in conformity with petitioner's
submission that the mere fact that the court
could not thereby observe the behavior of the
deponent does not justify the denial of the right
to take deposition. As we have already
explained:
The main reason given in support of the
contested order is that, if the deposition were
taken, the court could not observe the behavior
of the deponents. The insufficiency of this
circumstance to justify the interdiction of the
taking of the deposition becomes apparent when
we consider that, otherwise, no deposition could
ever be taken, said objection or handicap being
common to all depositions alike. In other words,
the order of respondent Judge cannot be
sustained without nullifying the right to take
depositions, and therefore, without, in effect
repealing section 1 of Rule 18 (now Rule 24) of
the Rules of Court, which, clearly, was not
intended by the framers of section 16 of the
same rule. 28
4. Finally, in the absence of proof, the allegation
that petitioner merely intended to annoy, harass
or oppress the proposed deponent cannot ably
support the setting aside of a notice to take
deposition.
On the bases of the foregoing disquisitions, we
find and so hold that the trial court committed a
grave abuse of discretion in issuing an order that
the deposition shall not be taken in this case,
and that respondent court erred in affirming the
same.
WHEREFORE, the petition is GRANTED. The
questioned decision of respondent Court of
Appeals is hereby REVERSED and SET ASIDE,
and judgment is hereby rendered ORDERING
the court a quo to allow herein petitioner to take
the deposition upon oral examination of Juanito
S. Teope in and for purposes of Civil Case No.
SP-3469 pending before it.
SO ORDERED.

Orders to protect the party or witness from

annoyance, embarrassment or oppression may
be issued if the following requirements are
complied with:
(a) that there is a motion made by any party or
by the person to be examined;
(b) that the motion has been seasonably filed; (c)
that there is good cause shown; and (d) that
notice of such motion has been served to the
other party. 29

Once a party has requested discovery, the

burden is on the party objecting to show that the
discovery requested is not relevant to the
issues, 30 and to establish the existence of any
claimed privilege. 31 These, private respondent
has failed to do so. Consequently, its objection
to the taking of the deposition cannot be
sustained.

Furthermore, the fact that the deposition is to be

taken in San Pablo City, whereas the proposed
deponent lives in Manila, is not sufficient to
establish private respondent's theory that the
requested deposition was intended to annoy and
harass the proposed deponent.

Inconvenience to the party whose deposition is

to be taken is not a valid objection to the taking
of his deposition. 32No doubt, private respondent
and its representative who is to be examined will
be inconvenienced — as are all parties when
required to submit to examination — but this is
no ground for denial of the deposition-discovery
process. 33 The mere fact that an officer of
private respondent would be required to attend
the examination and thereby absent himself from
some of his usual business affairs during the
taking of the deposition is utterly insufficient to
justify the court in ruling that he is being annoyed,
embarrassed or oppressed, within the meaning
of this language. Something far beyond this is
required in this connection to grant a party relief.
At any rate, petitioner has signified its
willingness to select a suitable office in Manila
for the taking of the deposition in order to
accommodate the proposed deponent. 34
RULE 24
G.R. No. 108229 August 24, 1993
DASMARIÑAS GARMENTS, INC., petitioner,
vs.
HON. RUBEN T. REYES, Judge, Regional
Trial Court, Manila, Branch 50, and
AMERICAN PRESIDENT LINES,
LTD., respondents.
Sobreviñas, Diaz, Haudini & Bodegon Law
Offices for petitioner.
Tan, Manzano & Velez Law Offices for private
respondent.
RESOLUTION
NARVASA, C.J.:
Sometime in September, 1987, in the Regional
Trial Court of Manila, the American President
Lines, Ltd. sued Dasmariñas Garments, Inc. to
recover the sum of US $53,228.45 as well as an
amount equivalent to twenty-five percent (25%)
thereof as attorney's fees and litigation
expenses.
In its answer dated December 1, 1987,
Dasmariñas Garments, Inc. (hereafter, simply
Dasmariñas) specifically denied any liability to
the plaintiff (hereafter simply APL), and set up
compulsory counterclaims against it.
The case was in due course scheduled for trial
on April 27, 1988. On that date APL presented
its first witness whose testimony was completed
on November 12, 1988. The case was reset to
May 3, 1989 for reception of the testimony of two
(2) more witnesses in APL's behalf.
At the hearing of May 3, 1989, instead of
presenting its witnesses, APL filed a motion
praying that it intended to take the depositions of
H. Lee and Yeong Fang Yeh in Taipei, Taiwan
and prayed that for this purpose, a "commission
or letters rogatory be issued addressed to the
consul, vice-consul or consular agent of the
Republic of the Philippines in Taipei . . . " Five (5)
days later APL filed an amended motion stating
that since the Philippine Government has no
consulate office in Taiwan in view of its "one
China policy," there being in lieu thereof an office
set up by the President "presently occupied by
Director Joaquin Roces which is the Asia
Exchange Center, Inc.," it was necessary — and
it therefore prayed — "that commission or letters
rogatory be issued addressed to Director
Joaquin Roces, Executive Director, Asian
Executive Exchange Center, Inc., Room 901,
112 Chunghsiao, E. Road, Section 1, Taipe,
Republic of China, to hear and take the oral
deposition of the aforenamed persons . . . ."
The motion was opposed by Dasmariñas. It
contended that (a) the motion was "fatally
defective in that it does not seek . . . that a
foreign court examine a person within its
jurisdiction;" (b) issuance of letters rogatory was
unnecessary because the witnesses "can be
examined before the Philippine Court;" and
(c) the Rules of Court "expressly require that the
testimony of a witness must be taken orally in
open court and not by deposition."
Extensive argument on the matter thereafter
followed, through various pleadings filed by the
parties, in the course of which APL submitted to
the Trial Court (a) the letter received by its
counsel from Director Joaquin R. Roces of the
Asian Exchange Center, Inc., dated November
20, 1989, advising that "this Office can only take
deposition upon previous authority from the
Department of Foreign Affairs," this being "in
consonance with the Supreme Court
Administrative Order requiring courts or judicial
bodies to course their requests through the
Department of Foreign Affairs;" and (b) a letter
sent by "fax" to the same counsel by a law firm in
Taipei, Lin & Associates Maritime Law Office,
transmitting information inter alia of the mode by
which, under the "ROC Civil Procedure Code,"
"a copy or an abridged copy" of documents on
file with a Taiwan Court may be obtained.
By Order dated March 15, 1991, the Trial Court
resolved the incident in favor of APL, disposing
as follows:
ACCORDINGLY, the motion to take testimonies
of plaintiff's Taiwanese witnesses, Kenneth H.
Lee and Yeong Fah Yeh, by deposition (upon
written interrogatories) is hereby GRANTED.
The Asian Exchange Center, Inc. thru Director
Joaquin R. Roces is hereby COMMISSIONED to
take down the deposition. Compliance with the
Rules on the taking of testimony by deposition
upon written interrogatories under Sections
25-29 of Rule 24, Rules of Court is enjoined.
Let this Order be coursed through the
Department of Foreign Affairs, Manila, pursuant
to Supreme Court Administrative Circular No. 4
dated April 6, 1987.
The Court opined that "the Asian Exchange
Center, Inc. being the authorized Philippine
representative in Taiwan, may take the
testimonies of plaintiff's witnesses residing there
by deposition, but only upon written
interrogatories so as to give defendant the
opportunity to cross-examine the witnesses by
serving cross-examination."
Dasmariñas sought reconsideration by motion
filed June 25, 1991 on the following grounds: (1)
authority of the Asian Exchange Center, Inc.
(AECI) to take depositions has not been
established, it not being one of those so
authorized by the Rules of Court to take
depositions in a foreign state; (2) AECI's articles
of incorporation show that it is not vested with
any such authority; (3) to permit
deposition-taking by commission without the
authority of the foreign state in which deposition
is taken constitutes infringement of judicial
sovereignty; and (4) depositions by written
interrogatories have inherent limitations and are
not suitable to matters dependent on the
credibility of witnesses; oral testimony in open
court remains the "most satisfactory method of
investigation of facts'" and "'affords the greatest
protection to the rights and liberties of citizens."
By Order dated July 5, 1991, the motion for
reconsideration was denied because "filed out of
time" and being a mere rehash of arguments
already passed upon. In the same Order, APL
was directed "to take the necessary steps to
implement the order authorizing the . . .
(deposition-taking) of its witnesses not later than
the end of this month, otherwise the Court will
consider inaction or lack of interest as waiver to
adduce additional evidence by deposition."
Dasmariñas instituted a special civil action
of certiorari in the Court of Appeals to nullify the
orders of the Trial Court just described. Said
Appellate Court restrained enforcement of the
orders of March 15, 1991 and July 5, 1991 "in
order to maintain the status quo and to prevent
the infliction of irreparable damage and injury
upon the petitioner."
After due proceedings, the Court of Appeals
(Third Division) rendered judgment on
September 23, 1992 denying Dasmariñas
petition for certiorari and upholding the
challenged orders of the Trial Court. Once again,
Dasmariñas sought reconsideration of an
adverse disposition, and once again, was
rebuffed. Its motion for reconsideration was
denied in a Resolution of the Court of Appeals
dated December 11, 1992.
Once again Dasmariñas has availed of the
remedy of appeal. It has come to this Court and
prays for the reversal of the Appellate Court's
Decision of September 23, 1992 and Resolution
dated December 11, 1992. Once again, it will
fail.
Dasmariñas ascribes to the Court of Appeals the
following errors, to wit:
1) "in holding that a party could, during the trial of
the case, present its evidence by taking the
deposition of its witnesses in a foreign
jurisdiction before a private entity not authorized
by law to take depositions in lieu of their oral
examination in open Court considering that:
a) the taking of deposition is a mode of pretrial
discovery to be availed of before the action
comes to trial;
b) no urgent or compelling reason has been
shown to justify the departure from the accepted
and usual judicial proceedings of examining
witnesses in open court where their demeanor
could be observed by the trial judge;"
2) "in disregarding the inherently unfair situation
in allowing private respondent, a foreign entity
suing in the Philippines, to present its evidence
by mere deposition of its witnesses away from
the 'penetrating scrutiny' of the trial Judge while
petitioner is obligated to bring and present its
witnesses in open court subject to the prying
eyes and probing questions of the Judge;" and
3) "in sanctioning the deposition taking of . . .
(APL's) witnesses in Taipei, Taiwan, a foreign
jurisdiction not recognized by the Philippines in
view of its 'one-China policy,' before the AECI, a
private entity not authorized by law to take
depositions."
Depositions are chiefly a mode of discovery.
They are intended as a means to compel
disclosure of facts resting in the knowledge of a
party or other person which are relevant in some
suit or proceeding in court. Depositions, and the
other modes of discovery (interrogatories to
parties; requests for admission by adverse party;
production or inspection of documents or things;
physical and mental examination of persons) are
meant to enable a party to learn all the material
and relevant facts, not only known to him and his
witnesses but also those known to the adverse
party and the latter's own witnesses. In fine, the
object of discovery is to make it possible for all
the parties to a case to learn all the material and
relevant facts, from whoever may have
knowledge thereof, to the end that their
pleadings or motions may not suffer from
inadequacy of factual foundation, and all the
relevant facts may be clearly and completely laid
before the Court, without omission or
suppression.
Depositions are principally made available by
law to the parties as a means of informing
themselves of all the relevant facts; they are not
therefore generally meant to be a substitute for
the actual testimony in open court of a party or
witness. The deponent must as a rule be
presented for oral examination in open court at
the trial or hearing. This is a requirement of the
rules of evidence. Section 1, Rule 132 of the
Rules of Court provides:
Sec. 1. Examination to be done in open court. —
The examination of witnesses presented in a trial
or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a
different mode of answer, the answers of the
witness shall be given orally.
Indeed, any deposition offered to prove the facts
therein set out during a trial or hearing, in lieu of
the actual oral testimony of the deponent in open
court, may be opposed and excluded on the
ground that it is hearsay; the party against whom
it is offered has no opportunity to cross-examine
the deponent at the time that his testimony is
offered. It matters not that that opportunity for
cross-examination was afforded during the
taking of the deposition; for normally, the
opportunity for cross-examination must be
accorded a party at the time that the testimonial
evidence is actually presented against him
during the trial or hearing.
However, depositions may be used without the
deponent being actually called to the witness
stand by the proponent, under certain conditions
and for certain limited purposes. These
exceptional situations are governed by Section 4,
Rule 24 of the Rules of Court.
Sec. 4. Use of depositions. — At the trial or upon
the hearing of a motion of an interlocutory
proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence, may
be used against any party who was present or
represented at the taking of the deposition or
who had due notice thereof, in accordance with
any of the following provisions:
(a) Any deposition may be used by any party for
the purpose of contradicting or impeaching the
testimony of deponent as a witness;
(b) The deposition of a party or of any one who
at the time of taking the deposition was an officer,
director, or managing agent of a public or private
corporation, partnership, or association which is
a party may be used by an adverse party for any
purpose;
(c) The deposition of a witness, whether or not a
party, may be used by any party for any purpose
if the court finds: (1) that the witness is dead; or
(2) that the witness if out of the province and at a
greater distance than fifty (50) kilometers from
the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence
was procured by the party offering the deposition;
or (3) that the witness is unable to attend to
testify because of age, sickness, infirmity, or
imprisonment; or (4) that the party offering the
deposition has been unable to procure the
attendance of the witness by subpoena; or (5)
upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with due
regard to the importance of presenting the
testimony of witnesses orally in open court, to
allow the deposition to be used;
(d) If only part of a deposition is offered in
evidence by a party, the adverse party may
require him to introduce all of it which is relevant
to the part introduced, and any party may
introduce any other parts.
The principle conceding admissibility to a
deposition when the deponent is dead, out of the
Philippines, or otherwise unable to come to court
to testify, is consistent with another rule of
evidence, found in Section 47, Rule 132 of the
Rules of Court.
Sec. 47. Testimony or deposition at a former
proceeding. — The testimony or deposition of a
witness deceased or unable to testify, given in a
former case or proceeding, judicial or
administrative, involving the same parties and
subject matter, may be given in evidence against
the adverse party who had the opportunity to
cross-examine him.
It is apparent then that the deposition of any
person may be taken wherever he may be, in the
Philippines or abroad. If the party or witness is in
the Philippines, his deposition "shall be taken
before any judge, municipal or notary public"
(Sec. 10, Rule 24, Rules of Court). If in a foreign
state or country, the deposition "shall be taken:
(a) on notice before a secretary or embassy or
legation, consul general, consul, vice-consul, or
consular agent of the Republic of the Philippines,
or (b) before such person or officer as may be
appointed by commission or under letters
rogatory" (Sec. 11, Rule 24).
Leave of court is not necessary where the
deposition is to be taken before "a secretary or
embassy or legation, consul general, consul,
vice-consul, or consular agent of the Republic of
the Philippines," and the defendant's answer has
already been served (Sec. 1 Rule 24). After
answer, whether the deposition-taking is to be
accomplished within the Philippines or outside,
the law does not authorize or contemplate any
intervention by the court in the process, all that is
required being that "reasonable notice" be given
"in writing to every other party to the action . . .
(stating) the time and place for taking the
deposition and the name and address of each
person to be examined, if known, and if the
name is not known, a general description
sufficient to identify him or the particular class or
group to which he belongs. . . . " (Sec. 15, Rule
24). The court intervenes in the process only if a
party moves (1) to "enlarge or shorten the time"
stated in the notice (id.), or (2) "upon notice and
for good cause shown," to prevent the
deposition-taking, or impose conditions therefor,
e.g., that "certain matters shall not be inquired
into" or that the taking be "held with no one
present except the parties to the action and their
officers or counsel," etc. (Sec. 16, Rule 24), or
(3) to terminate the process on motion and upon
a showing that "it is being conducted in bad faith
or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party"
(Sec 18, Rule 24).
Where the deposition is to be taken in a foreign
country where the Philippines has no "secretary
or embassy or legation, consul general, consul,
vice-consul, or consular agent," then obviously it
may be taken only "before such person or officer
as may be appointed by commission or under
letters rogatory. Section 12, Rule 24 provides as
follows:
Sec. 12. Commission or letters rogatory. — A
commission or letters rogatory shall be issued
only when necessary or convenient, on
application and notice, and on such terms and
with such directions as are just and appropriate.
Officers may be designated in notices or
commissions either by name or descriptive title
and letters rogatory may be addressed "To the
Appropriate Judicial Authority in (here name the
country)."
A commission may be defined as "(a)n
instrument issued by a court of justice, or other
competent tribunal, to authorize a person to take
depositions, or do any other act by authority of
such court or tribunal" (Feria, J., Civil Procedure,
1969 ed., p. 415, citing Cyclopedic Law
Dictionary, p. 200). Letters rogatory, on the other
hand, may be defined as "(a)n instrument sent in
the name and by the authority of a judge or court
to another, requesting the latter to cause to be
examined, upon interrogatories filed in a cause
pending before the former, a witness who is
within the jurisdiction of the judge or court to
whom such letters are addressed" (Feria, J., op.
cit., citing Cyclopedic Law Dictionary, p. 653).
Section 12, Rule 24 just quoted states that a
commission is addressed to "officers . . .
designated . . . either by name or descriptive
title," while letters rogatory are addressed to
some "appropriate judicial authority in the foreign
state." Noteworthy in this connection is the
indication in the Rules that letters rogatory may
be applied for and issued only after a
commission has been "returned unexecuted" as
is apparent from Form 21 of the "Judicial
Standard Forms" appended to the Rules of Court,
which requires the inclusion in a "petition for
letters rogatory" of the following paragraph, viz.:
xxx xxx xxx
3. A commission issued by this Court on the
______ day of ______, 19__, to take the
testimony of (here name the witness or
witnesses) in (here name the foreign country in
which the testimony is to be taken), before
_________________ (name of officer),
was returned unexecuted by
__________________ on the ground that
____________, all of which more fully appears
from the certificate of said __________ to said
commission and made a part hereof by attaching
it hereto (or state other facts to show
commission is inadequate or cannot be
executed) (emphasis supplied).
In the case at bar, the Regional Trial Court has
issued a commission to the "Asian Exchange
Center, Inc. thru Director Joaquin R. Roces" "to
take the testimonies of . . . Kenneth H. Lee and
Yeong Fah Yeh, by deposition (upon written
interrogatories) . . . ." It appears that said Center
may, "upon request and authority of the Ministry
(now Department) of Foreign Affairs, Republic of
the Philippines" issue a "Certificate of
Authentications" attesting to the identity and
authority of Notaries Public and other public
officers of the Republic of China, Taiwan (eg.,
the Section Chief, Department of Consular
Affairs of the latter's Ministry of Foreign Affairs)
(Annex B of Annex N of the petition for review
on certiorari) — a prima facie showing not
rebutted by petitioner.
It further appears that the commission is to be
coursed through the Department of Foreign
Affairs conformably with Circular No. 4 issued by
Chief Justice Claudio Teehankee on April 6,
1987, pursuant to the suggestion of the
Department of Foreign Affairs — directing "ALL
JUDGES OF THE REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS IN CITIES, MUNICIPAL TRIAL
COURTS AND MUNICIPAL CIRCUIT TRIAL
COURTS" "to course all requests for the taking
of deposition of witnesses residing abroad
through the Department of Foreign Affairs" to
enable it and "the Philippine Foreign Service
establishments to act on the matter in a judicious
and expeditious manner;" this, "in the interest of
justice," and to avoid delay in the
deposition-taking.
Petitioner would however prevent the carrying
out of the commission on various grounds.
The first is that the deposition-taking will take
place in "a foreign jurisdiction not recognized by
the Philippines in view of its 'one-China policy.'"
This is inconsequential. What matters is that the
deposition is taken before a Philippine official
acting by authority of the Philippine Department
of Foreign Affairs and in virtue of a commission
duly issued by the Philippine Court in which the
action is pending, and in accordance, moreover,
with the provisions of the Philippine Rules of
Court pursuant to which opportunity for
cross-examination of the deponent will be fully
accorded to the adverse party.
Dasmariñas also contends that the "taking of
deposition is a mode of pretrial discovery to be
availed of before the action comes to trial." Not
so. Depositions may be taken at any time after
the institution of any action, whenever necessary
or convenient. There is no rule that limits
deposition-taking only to the period of pre-trial or
before it; no prohibition against the taking of
depositions after pre-trial. Indeed, the law
authorizes the taking of depositions of witnesses
before or after an appeal is taken from the
judgment of a Regional Trial Court "to
perpetuate their testimony for use in the event of
further proceedings in the said court" (Rule 134,
Rules of Court), and even during the process of
execution of a final and executory judgment
(East Asiatic Co. v. C.I.R., 40 SCRA 521, 544).
Dasmariñas further claims that the taking of
deposition under the circumstances is a
"departure from the accepted and usual judicial
proceedings of examining witnesses in open
court where the demeanor could be observed by
the trial judge;" that it is "inherently unfair" to
allow APL, "a foreign entity suing in the
Philippines, to present its evidence by mere
deposition of its witnesses away from the
'penetrating scrutiny' of the trial Judge while
petitioner is obligated to bring and present its
witnesses in open court subject to the prying
eyes and probing questions of the Judge."
Of course the deposition-taking in the case at
bar is a "departure from the accepted and usual
judicial proceedings of examining witnesses in
open court where their demeanor could be
observed by the trial judge;" but the procedure is
not on that account rendered illegal nor is the
deposition thereby taken, inadmissible. It
precisely falls within one of the exceptions where
the law permits such a situation, i.e., the use of
deposition in lieu of the actual appearance and
testimony of the deponent in open court and
without being "subject to the prying eyes and
probing questions of the Judge." This is allowed
provided the deposition is taken in accordance
with the applicable provisions of the Rules of
Court and the existence of any of the exceptions
for its admissibility — e.g., "that the witness if out
of the province and at a greater distance than
fifty (50) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it
appears that his absence was procured by the
party offering the deposition; or . . . that the
witness is unable to attend to testify because of
age, sickness, infirmity, or imprisonment, etc."
(Sec. 4 Rule 24, supra, emphasis supplied) — is
first satisfactorily established (See Lopez v.
Maceren, 95 Phil. 754).
The Regional Trial Court saw fit to permit the
taking of the depositions of the witnesses in
question only by written interrogatories,
removing the proponent's option to take them by
oral examination, i.e., by going to Taipei and
actually questioning the witnesses verbally with
the questions and answers and observations of
the parties being recorded stenographically. The
imposition of such a limitation, and the
determination of the cause thereof, are to be
sure within the Court's discretion. The ostensible
reason given by the Trial Court for the condition
— that the deposition be taken "only upon
written interrogatories" — is "so as to give
defendant (Dasmariñas) the opportunity to
cross-examine the witnesses by serving
cross-interrogatories." The statement implies
that opportunity to cross-examine will not be
accorded the defendant if the depositions were
to be taken upon oral examination, which, of
course, is not true. For even if the depositions
were to be taken on oral examination in Taipei,
the adverse party is still accorded full right to
cross-examine the deponents by the law, either
by proceeding to Taipei and there conducting the
cross-examination orally, or opting to conduct
said cross-examination merely by serving
cross-interrogatories.
One other word. In its Order of July 5, 1991 —
denying Dasmariñas motion for reconsideration
of the earlier order dated March 15, 1991
(allowing the taking of deposition by commission)
— one of the reasons adduced by the Regional
Trial Court for the denial was that the motion had
been "filed out of time." Evidently, the Trial Court
reached this conclusion because, as the record
discloses, the motion for reconsideration was
filed by Dasmariñas on June 25, 1991,
twenty-five (25) days after notice (on May 20,
1991) of the Order of March 15, 1991 sought to
be reconsidered. Denial of the motion on such a
ground is incorrect. In the first place, it appears
that there was a motion for extension of time to
file a motion for reconsideration, ending on June
25, 1991 which was however not acted on or
granted by the Court. More importantly, the order
sought to be reconsidered is
an interlocutory order, in respect of which there
is no provision of law fixing the time within which
reconsideration thereof should be sought.
PREMISES CONSIDERED, the Court Resolved
to DISMISS the petition for review on certiorari.
Costs against petitioner.
SO ORDERED.
G.R. No. 90478 November 21, 1991
REPUBLIC OF THE PHILIPPINES
(PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT), petitioner,
vs.
SANDIGANBAYAN, BIENVENIDO R.
TANTOCO, JR. and DOMINADOR R.
SANTIAGO, respondents.
Dominador R. Santiago for and in his own behalf
and as counsel for respondent Tantoco, Jr.
NARVASA, J.:
Private respondents Bienvenido R. Tantoco, Jr.
and Dominador R. Santiago — together with
Ferdinand E. Marcos, Imelda R. Marcos,
Bienvenido R. Tantoco, Sr., Gliceria R. Tantoco,
and Maria Lourdes Tantoco-Pineda-are
defendants in Civil Case No. 0008 of the
Sandiganbayan. The case was commenced on
July 21, 1987 by the Presidential Commission on
Good Government (PCGG) in behalf of the
Republic of the Philippines. The complaint which
initiated the action was denominated one "for
reconveyance, reversion, accounting, restitution
and damages," and was avowedly filed pursuant
to Executive Order No. 14 of President Corazon
C. Aquino.
After having been served with summons,
Tantoco, Jr. and Santiago, instead of filing their
answer, jointly filed a "MOTION TO STRIKE
OUT SOME PORTIONS OF THE COMPLAINT
AND FOR BILL OF PARTICULARS OF OTHER
PORTIONS" dated Nov. 3, 1987. 1 The PCGG
filed an opposition thereto, 2 and the movants, a
reply to the opposition. 3 By order dated January
29, 1988, the Sandiganbayan, in order to
expedite proceedings and accommodate the
defendants, gave the PCGG forty-five (45) days
to expand its complaint to make more specific
certain allegations. 4
Tantoco and Santiago then presented a "motion
for leave to file interrogatories under Rule 25 of
the Rules of Court" dated February 1, 1988, and
"Interrogatories under Rule 25." 5Basically, they
sought an answer to the question: "Who were
the Commissioners of the PCGG (aside from its
Chairman, Hon. Ramon Diaz, who verified the
complaint) who approved or authorized the
inclusion of Messrs. Bienvenido R. Tantoco, Jr.
and Dominador R. Santiago as defendants in
the . . case?" 6 The PCGG responded by filing a
motion dated February 9, 1988 to strike out said
motion and interrogatories as being impertinent,
"queer," "weird," or "procedurally bizarre as the
purpose thereof lacks merit as it is improper,
impertinent and irrelevant under any
guise." 7
On March 18, 1988, in compliance with the
Order of January 29, 1988, the PCGG filed an
Expanded Complaint. 8 As this expanded
complaint, Tantoco and Santiago reiterated their
motion for bill of particulars, through a
Manifestation dated April 11, 1988. 9
Afterwards, by Resolution dated July 4, 1988,
10 the Sandiganbayan denied the motion to
strike out, for bill of particulars, and for leave to
file interrogatories, holding them to be without
legal and factual basis. Also denied was the
PCGG's motion to strike out impertinent pleading
dated February 9, 1988. The Sandiganbayan
declared inter alia the complaint to be
"sufficiently definite and clear enough," there are
adequate allegations . . which clearly portray the
supposed involvement and/or alleged
participation of defendants-movants in the
transactions described in detail in said
Complaint," and "the other matters sought for
particularization are evidentiary in nature which
should be ventilated in the pre-trial or trial
proper . ." It also opined that "(s)ervice of
interrogatories before joinder of issue and
without leave of court is premature . . (absent)
any special or extraordinary circumstances . .
which would justify . . (the same)."
Tantoco and Santiago then filed an Answer with
Compulsory Counterclaim under date of July 18,
1988. 11 In response, the PCGG presented a
"Reply to Answer with Motion to Dismiss
Compulsory Counterclaim " 12
The case was set for pre-trial on July 31, 1989.
13 On July 25, 1989, the PCGG submitted its
PRE-TRIAL. 14 The pre-trial was however reset
to September 11, 1989, and all other parties
were required to submit pre-trial briefs on or
before that date. 15
On July 27, 1989 Tantoco and Santiago filed
with the Sandiganbayan a pleading denominated
"Interrogatories to Plaintiff," 16 and on August 2,
1989, an "Amended Interrogatories to
Plaintiff"' 17 as well as a Motion for Production
and Inspection of Documents. 18
The amended interrogatories chiefly sought
factual details relative to specific averments of
PCGG's amended complaint, through such
questions, for instance, as—
1. In connection with the allegations . . in
paragraph 1 . ., what specific property or
properties does the plaintiff claim it has the right
to recover from defendants Tantoco, Jr. and
Santiago for being ill-gotten?
3. In connection with the allegations . . in
paragraph 10 (a) . . what specific act or acts . .
were committed by defendants Tantoco, Jr. and
Santiago in "concert with" defendant Ferdinand
Marcos and in furtherance or pursuit, of the
alleged systematic plan of said defendant
Marcos to accumulate ill-gotten wealth?"
5. In connection with . . paragraph 13 . ., what
specific act or acts of the defendants Tantoco, Jr.
and Santiago. . were committed by said
defendants as part, or in furtherance, of the
alleged plan to conceal assets of defendants
Ferdinand and Imelda Marcos?
7. In connection with . . paragraph 15(c) . . is it
plaintiff's position or theory of the case that
Tourist Duty Free Shops, Inc., including all the
assets of said corporation, are beneficially
owned by either or both defendants Ferdinand
and Imelda Marcos and that the defendants
Tantoco, Jr. and Santiago, as well as, the other
stockholders of record of the same corporation
are mere "dummies" of said defendants
Ferdinand and /or Imelda R. Marcos?
On the other hand, the motion for production and
inspection of documents prayed for examination
and copying of—
1) the "official records and other evidence" on
the basis of which the verification of the
Amended Complaint asserted that the
allegations thereof are "true and correct;"
2) the documents listed in PCGG's Pre-Trial
Brief as those "intended to be presented and . .
marked as exhibits for the plaintiff;" and
3) "the minutes of the meeting of the PCGG
which chronicles the discussion (if any) and the
decision (of the Chairman and members) to file
the complaint" in the case at bar.
By Resolutions dated August 21, 1989 and
August 25, 1989, the Sandiganbayan admitted
the Amended Interrogatories and granted the
motion for production and inspection of
documents (production being scheduled on
September 14 and 15, 1989), respectively.
On September 1, 1989, the PCGG filed a Motion
for Reconsideration of the Resolution of August
25, 1989 (allowing production and inspection of
documents). It argued that
1) since the documents subject thereof would be
marked as exhibits during the pre-trial on
September 11, 1989 anyway, the order for "their
production and inspection on September 14 and
15, are purposeless and unnecessary;"
2) movants already know of the existence and
contents of the document which "are clearly
described . . (in) plaintiff's Pre-Trial Brief;"
3) the documents are "privileged in character"
since they are intended to be used against the
PCGG and/or its Commissioners in violation of
Section 4, Executive Order No. 1, viz.:
(a) No civil action shall lie against the
Commission or any member thereof for anything
done or omitted in the discharge of the task
contemplated by this Order.
(b) No member or staff of the Commission shall
be required to testify or produce evidence in any
judicial, legislative, or administrative proceeding
concerning matters within its official cognizance.
It also filed on September 4, 1989 an opposition
to the Amended Interrogatories, 19 which the
Sandiganbayan treated as a motion for
reconsideration of the Resolution of August 21,
1989 (admitting the Amended Interrogatories).
The opposition alleged that —
1) the interrogatories "are not specific and do not
name the person to whom they are
propounded . .," or "who in the PCGG, in
particular, . . (should) answer the
interrogatories;"
2) the interrogatories delve into "factual matters
which had already been decreed . . as part of the
proof of the Complaint upon trial . .;"
3) the interrogatories "are frivolous" since they
inquire about "matters of fact . . which
defendants . . sought to . . (extract) through their
aborted Motion for Bill of Particulars;"
4) the interrogatories "are really in the nature of a
deposition, which is prematurely filed and
irregularly utilized . . (since) the order of trial calls
for plaintiff to first present its evidence."
Tantoco and Santiago filed a reply and
opposition on September 18, 1989.
After hearing, the Sandiganbayan promulgated
two (2) Resolutions on September 29, 1989, the
first, denying reconsideration (of the Resolution
allowing production of documents), and the
second, reiterating by implication the permission
to serve the amended interrogatories on the
plaintiff (PCGG). 20
Hence, this petition for certiorari.
The PCGG contends that said orders, both
dated September 29, 1989, should be nullified
because rendered with grave abuse of discretion
amounting to excess of jurisdiction. More
particularly, it claims —
a) as regards the order allowing the amended
interrogatories to the plaintiff PCGG:
1) that said interrogatories are not specific and
do not name the particular individuals to whom
they are propounded, being addressed only to
the PCGG;
2) that the interrogatories deal with factual
matters which the Sandiganbayan (in denying
the movants' motion for bill of particulars) had
already declared to be part of the PCGG's proof
upon trial; and
3) that the interrogatories would make PCGG
Commissioners and officers witnesses, in
contravention of Executive Order No. 14 and
related issuances; and
b) as regards the order granting the motion for
production of documents:
1) that movants had not shown any good cause
therefor;
2) that some documents sought to be produced
and inspected had already been presented in
Court and marked preliminarily as PCGG's
exhibits, and the movants had viewed,
scrutinized and even offered objections thereto
and made comments thereon; and
3) that the other documents sought to be
produced are either —
(a) privileged in character or confidential in
nature and their use is proscribed by the
immunity provisions of Executive Order No. 1, or
(b) non-existent, or mere products of the
movants' suspicion and fear.
This Court issued a temporary restraining order
on October 27, 1989, directing the
Sandiganbayan to desist from enforcing its
questioned resolutions of September 29, 1989 in
Civil Case No. 0008. 21
After the issues were delineated and argued at
no little length by the parties, the Solicitor
General withdrew "as counsel for plaintiff . . with
the reservation, however, conformably with
Presidential Decree No. 478, the provisions of
Executive Order No. 292, as well as the
decisional law of 'Orbos v. Civil Service
Commission, et al.,' (G.R. No. 92561,
September 12, 1990) 22 to submit his
comment/observation on incidents/matters
pending with this . . Court if called for by
circumstances in the interest of the Government
or if he is so required by the Court." 23 This, the
Court allowed by Resolution dated January 21,
1991. 24
Subsequently, PCGG Commissioner Maximo A.
Maceren advised the Court that the cases from
which the Solicitor General had withdrawn would
henceforth be under his (Maceren's) charge
"and/or any of the following private attorneys:
Eliseo B. Alampay, Jr., Mario E. Ongkiko, Mario
Jalandoni and such other attorneys as it may
later authorize." 25
The facts not being in dispute, and it appearing
that the parties have fully ventilated their
respective positions, the Court now proceeds to
decide the case.
Involved in the present proceedings are two of
the modes of discovery provided in the Rules of
Court: interrogatories to parties , 26 and
production and inspection of documents and
things. 27 Now, it appears to the Court that
among far too many lawyers (and not a few
judges), there is, if not a regrettable unfamiliarity
and even outright ignorance about the nature,
purposes and operation of the modes of
discovery, at least a strong yet unreasoned and
unreasonable disinclination to resort to them —
which is a great pity for the intelligent and
adequate use of the deposition-discovery
mechanism, coupled with pre-trial procedure,
could, as the experience of other jurisdictions
convincingly demonstrates, effectively shorten
the period of litigation and speed up
adjudication. 28 Hence, a few words about these
remedies is not at all inappropriate.
The resolution of controversies is, as everyone
knows, the raison d'etre of courts. This essential
function is accomplished by first, the
ascertainment of all the material and relevant
facts from the pleadings and from the evidence
adduced by the parties, and second, after that
determination of the facts has been completed,
by the application of the law thereto to the end
that the controversy may be settled
authoritatively, definitely and finally.
It is for this reason that a substantial part of the
adjective law in this jurisdiction is occupied with
assuring that all the facts are indeed presented
to the Court; for obviously, to the extent that
adjudication is made on the basis of incomplete
facts, to that extent there is faultiness in the
approximation of objective justice. It is thus the
obligation of lawyers no less than of judges to
see that this objective is attained; that is to say,
that there no suppression, obscuration,
misrepresentation or distortion of the facts; and
that no party be unaware of any fact material a
relevant to the action, or surprised by any factual
detail suddenly brought to his attention during
the trial. 29
Seventy-one years ago, in Alonso v. Villamor,
30 this Court described the nature and object of
litigation and in the process laid down the
standards by which judicial contests are to be
conducted in this jurisdiction. It said:
A litigation is not a game of technicalities in
which one, more deeply schooled and skilled in
the subtle art of movement and position, entraps
and destroys the other. It is, rather a contest in
which each contending party fully and fairly lays
before the court the facts in issue and then
brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of
procedure, asks that justice be done on the
merits. Lawsuits, unlike duels, are not to be won
by a rapier's thrust. Technicality, when it deserts
its proper office as an aid to justice and becomes
its great hindrance and chief enemy, deserves
scant consideration from courts. There should be
no vested right in technicalities. . . .
The message is plain. It is the duty of each
contending party to lay before the court the facts
in issue-fully and fairly; i.e., to present to the
court all the material and relevant facts known to
him, suppressing or concealing nothing, nor
preventing another party, by clever and adroit
manipulation of the technical rules of pleading
and evidence, from also presenting all the facts
within his knowledge.
Initially, that undertaking of laying the facts
before the court is accomplished by the
pleadings filed by the parties; but that, only in a
very general way. Only "ultimate facts" are set
forth in the pleadings; hence, only the barest
outline of the facfual basis of a party's claims or
defenses is limned in his pleadings. The law
says that every pleading "shall contain in a
methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which
the party pleading relies for his claim or defense,
as the case may be, omitting the statement of
mere evidentiary facts." 31
Parenthetically, if this requirement is not
observed, i.e., the ultimate facts are alleged too
generally or "not averred with sufficient
definiteness or particularity to enable . . (an
adverse party) properly to prepare his
responsive pleading or to prepare for trial," a bill
of particulars seeking a "more definite
statement" may be ordered by the court on
motion of a party. The office of a bill of
particulars is, however, limited to making more
particular or definite the ultimate facts in a
pleading It is not its office to supply evidentiary
matters. And the common perception is that said
evidentiary details are made known to the
parties and the court only during the trial, when
proof is adduced on the issues of fact arising
from the pleadings.
The truth is that "evidentiary matters" may be
inquired into and learned by the parties before
the trial. Indeed, it is the purpose and policy of
the law that the parties — before the trial if not
indeed even before the pre-trial — should
discover or inform themselves of all the facts
relevant to the action, not only those known to
them individually, but also those known to
adversaries; in other words, the desideratum is
that civil trials should not be carried on in the
dark; and the Rules of Court make this ideal
possible through the deposition-discovery
mechanism set forth in Rules 24 to 29. The
experience in other jurisdictions has been that
ample discovery before trial, under proper
regulation, accomplished one of the most
necessary of modern procedure: it not only
eliminates unessential issue from trials thereby
shortening them considerably, but also requires
parties to play the game with the cards on the
table so that the possibility of fair settlement
before trial is measurably increased. . ." 32
As just intimated, the deposition-discovery
procedure was designed to remedy the
conceded inadequacy and cumbersomeness of
the pre-trial functions of notice-giving,
issue-formulation and fact revelation theretofore
performed primarily by the pleadings.
The various modes or instruments of discovery
are meant to serve (1) as a device, along with
the pre-trial hearing under Rule 20, to narrow
and clarify the basic issues between the parties,
and (2) as a device for ascertaining the facts
relative to those issues. The evident purpose is,
to repeat, to enable parties, consistent with
recognized privileges, to obtain the fullest
possible knowledge of the issues and facts
before trials and thus prevent that said trials are
carried on in the dark. 33
To this end, the field of inquiry that may be
covered by depositions or interrogatories is as
broad as when the interrogated party is called as
a witness to testify orally at trial. The inquiry
extends to all facts which are relevant, whether
they be ultimate or evidentiary, excepting only
those matters which are privileged. The objective
is as much to give every party the fullest possible
information of all the relevant facts before the
trial as to obtain evidence for use upon said trial.
The principle is reflected in Section 2, Rule 24
(governing depositions) 34 which generally
allows the examination of a deponent —
1) "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;"
2) as well as:
(a) "the existence, description, nature, custody,
condition and location of any books, documents,
or other tangible things" and
(b) "the identity and location of persons having
knowledge of relevant facts."
What is chiefly contemplated is the discovery of
every bit of information which may be useful in
the preparation for trial, such as the identity and
location of persons having knowledge of relevant
facts; those relevant facts themselves; and the
existence, description, nature, custody, condition,
and location of any books, documents, or other
tangible things. Hence, "the deposition-discovery
rules are to be accorded a broad and liberal
treatment. No longer can the time-honored cry of
"fishing expedition" serve to preclude a party
from inquiring into the facts underlying his
opponent's case. Mutual knowledge of all the
relevant facts gathered by both parties is
essential to proper litigation. To that end, either
party may compel the other to disgorge whatever
facts he has in his possession. The
deposition-discovery procedure simply advances
the stage at which the disclosure can be
compelled from the time of trial to the period
preceding it, thus reducing the possibility, of
surprise, . . . 35
In line with this principle of according liberal
treatment to the deposition-discovery
mechanism, such modes of discovery as (a)
depositions (whether by oral examination or
written interrogatories) under Rule 24, (b)
interrogatories to parties under Rule 25, and (c)
requests for admissions under Rule 26, may be
availed of without leave of court, and generally,
without court intervention. The Rules of Court
explicitly provide that leave of court is not
necessary to avail of said modes of discovery
after an answer to the complaint has been
served. 36 It is only when an answer has not yet
been filed (but after jurisdiction has been
obtained over the defendant or property subject
of the action) that prior leave of court is needed
to avail of these modes of discovery, the reason
being that at that time the issues are not yet
joined and the disputed facts are not clear. 37
On the other hand, leave of court is required as
regards discovery by (a) production or inspection
of documents or things in accordance with Rule
27, or (b) physical and mental examination of
persons under Rule 28, which may be granted
upon due application and a showing of due
cause.
To ensure that availment of the modes of
discovery is otherwise untrammeled and
efficacious, the law imposes serious sanctions
on the party who refuses to make discovery,
such as dismissing the action or proceeding or
part thereof, or rendering judgment by default
against the disobedient party; contempt of court,
or arrest of the party or agent of the party;
payment of the amount of reasonable expenses
incurred in obtaining a court order to compel
discovery; taking the matters inquired into as
established in accordance with the claim of the
party seeking discovery; refusal to allow the
disobedient party support or oppose designated
claims or defenses; striking out pleadings or
parts thereof; staying further proceedings. 38
Of course, there are limitations to discovery,
even when permitted to be undertaken without
leave and without judicial intervention. "As
indicated by (the) Rules . . ., limitations inevitably
arise when it can be shown that the examination
is being conducted in bad faith or in such a
manner as to annoy, embarass, or oppress the
person subject to the inquiry. 39 And . . . further
limitations come into existence when the inquiry
touches upon the irrelevant or encroaches upon
the recognized domains of privilege." 40
In fine, the liberty of a party to make discovery is
well nigh unrestricted if the matters inquired into
are otherwise relevant and not privileged, and
the inquiry is made in good faith and within the
bounds of the law.
It is in light of these broad principles underlying
the deposition-discovery mechanism, in relation
of course to the particular rules directly involved,
that the issues in this case will now be resolved.
The petitioner's objections to the interrogatories
served on it in accordance with Rule 25 of the
Rules of Court cannot be sustained.
It should initially be pointed out — as regards the
private respondents "Motion for Leave to File
Interrogatories" dated February 1, 1988 41 —
that it was correct for them to seek leave to serve
interrogatories, because discovery was being
availed of before an answer had been served. In
such a situation, i.e., "after jurisdiction has been
obtained over any defendant or over property
subject of the action" but before answer, Section
1 of Rule 24 (treating of depositions), in relation
to Section 1 of Rule 25 (dealing with
interrogatories to parties) explicitly requires
"leave of court." 42 But there was no need for
the private respondents to seek such leave to
serve their "Amended Interrogatories to Plaintiff"
(dated August 2, 1989 43) after they had filed
their answer to the PCGG's complaint, just as
there was no need for the Sandiganbayan to act
thereon.
1. The petitioner's first contention — that the
interrogatories in question are defective because
they (a) do not name the particular individuals to
whom they are propounded, being addressed
only to the PCGG, and (b) are
"fundamentally the same matters . . (private
respondents) sought to be clarified through their
aborted Motion . . for Bill of Particulars" — are
untenable and quickly disposed of.
The first part of petitioner's submission is
adequately confuted by Section 1, Rule 25 which
states that if the party served with interrogatories
is a juridical entity such as "a public or private
corporation or a partnership or association," the
same shall be "answered . . by any officer
thereof competent to testify in its behalf." There
is absolutely no reason why this proposition
should not be applied by analogy to the
interrogatories served on the PCGG. That the
interrogatories are addressed only to the PCGG,
without naming any specific commissioner o
officer thereof, is utterly of no consequence, and
may not be invoked as a reason to refuse to
answer. As the rule states, the interrogatories
shall be answered "by any officer thereof
competent to testify in its behalf."
That the matters on which discovery is desired
are the same matters subject of a prior motion
for bill of particulars addressed to the PCGG's
amended complaint — and denied for lack of
merit — is beside the point. Indeed, as already
pointed out above, a bill of particulars may elicit
only ultimate facts, not
so-called evidentiary facts. The latter are without
doubt proper subject of discovery. 44
Neither may it be validly argued that the
amended interrogatories lack specificity. The
merest glance at them disproves the argument.
The interrogatories are made to relate to
individual paragraphs of the PCGG's expanded
complaint and inquire about details of the
ultimate facts therein alleged. What the PCGG
may properly do is to object to specific items of
the interrogatories, on the ground of lack of
relevancy, or privilege, or that the inquiries are
being made in bad faith, or simply to embarass
or oppress it. 45 But until such an objection is
presented and sustained, the obligation to
answer subsists.
2. That the interrogatories deal with factual
matters which will be part of the PCGG's proof
upon trial, is not ground for suppressing them
either. As already pointed out, it is the precise
purpose of discovery to ensure mutual
knowledge of all the relevant facts on the part of
all parties even before trial, this being deemed
essential to proper litigation. This is why either
party may compel the other to disgorge whatever
facts he has in his possession; and the stage at
which disclosure of evidence is made is
advanced from the time of trial to the period
preceding it.
3. Also unmeritorious is the objection that the
interrogatories would make PCGG
Commissioners and officers witnesses, in
contravention of Executive Order No. 14 and
related issuances. In the first place, there is
nothing at all wrong in a party's making his
adversary his witness . 46 This is expressly
allowed by Section 6, Rule 132 of the Rules of
Court, viz.:
Sec. 6. Direct examination of unwilling or hostile
witnesses. — A party may . . . call an adverse
party or an officer, director, or managing agent of
a public or private corporation or of a partnership
or association which is an adverse party, and
interrogate him by leading questions and
contradict and impeach him in all respects as if
he had been called by the adverse party, and the
witness thus called may be contradicted and
impeached by or on behalf of the adverse party
also, and may be cross-examined by the
adverse party only upon the subject-matter of his
examination in chief.
The PCGG insinuates that the private
respondents are engaged on a "fishing
expedition," apart from the fact that the
information sought is immaterial since they are
evidently meant to establish a claim against
PCGG officers who are not parties to the action.
It suffices to point out that "fishing expeditions"
are precisely permitted through the modes of
discovery. 47 Moreover, a defendant who files a
counterclaim against the plaintiff is allowed by
the Rules to implead persons (therefore
strangers to the action) as additional defendants
on said counterclaim. This may be done
pursuant to Section 14, Rule 6 of the Rules, to
wit:
Sec. 14. Bringing new parties. — When the
presence of parties other than those to the
original action is required for the granting of
complete relief in the determination of
a counterclaim or cross-claim, the court shall
order them to be brought in as defendants, if
jurisdiction over them can be obtained."
The PCGG's assertion that it or its members are
not amenable to any civil action "for anything
done or omitted in the discharge of the task
contemplated by . . (Executive) Order (No. 1)," is
not a ground to refuse to answer the
interrogatories. The disclosure of facto relevant
to the action and which are not self-incriminatory
or otherwise privileged is one thing; the matter of
whether or not liability may arise from the facts
disclosed in light of Executive Order
No. 1, is another. No doubt, the latter proposition
may properly be set up by way of defense in the
action.
The apprehension has been expressed that the
answers to the interrogatories may be utilized as
foundation for a counterclaim against the PCGG
or its members and officers. They will be. The
private respondents have made no secret that
this is in fact their intention. Withal, the Court is
unable to uphold the proposition that while the
PCGG obviously feels itself at liberty to bring
actions on the basis of its study and appreciation
of the evidence in its possession, the parties
sued should not be free to file counterclaims in
the same actions against the PCGG or its
officers for gross neglect or ignorance, if not
downright bad faith or malice in the
commencement or initiation of such judicial
proceedings, or that in the actions that it may
bring, the PCGG may opt not to be bound by rule
applicable to the parties it has sued, e.g., the
rules of discovery.
So, too, the PCGG's postulation that none of its
members may be "required to testify or produce
evidence in any judicial . . proceeding
concerning matters within its official
cognizance," has no application to a judicial
proceeding it has itself initiated. As just
suggested, the act of bringing suit must entail a
waiver of the exemption from giving evidence; by
bringing suit it brings itself within the operation
and scope of all the rules governing civil actions,
including the rights and duties under the rules of
discovery. Otherwise, the absurd would have to
be conceded, that while the parties it has
impleaded as defendants may be required to
"disgorge all the facts" within their knowledge
and in their possession, it may not itself be
subject to a like compulsion.
The State is, of course, immune from suit in the
sense that it cannot, as a rule, be sued without
its consent. But it is axiomatic that in filing an
action, it divests itself of its sovereign character
and sheds its immunity from suit, descending to
the level of an ordinary litigant. The PCGG
cannot claim a superior or preferred status to the
State, even while assuming to represent or act
for the State. 48
The suggestion 49 that the State makes no
implied waiver of immunity by filing suit except
when in so doing it acts in, or in matters
concerning, its proprietary or non-governmental
capacity, is unacceptable; it attempts a
distinction without support in principle or
precedent. On the contrary —
The consent of the State to be sued may be
given expressly or impliedly. Express consent
may be manifested either through a general law
or a special law. Implied consent is given when
the State itself commences litigation or when it
enters into a contract. 50
The immunity of the State from suits does not
deprive it of the right to sue private parties in its
own courts. The state as plaintiff may avail itself
of the different forms of actions open to private
litigants. In short, by taking the initiative in an
action against the private parties, the state
surrenders its privileged position and comes
down to the level of the defendant. The latter
automatically acquires, within certain limits, the
right to set up whatever claims and other
defenses he might have against the state. . . .
(Sinco, Philippine Political Law, Tenth E., pp.
36-37, citing U.S. vs. Ringgold, 8 Pet. 150, 8 L.
ed. 899)" 51
It can hardly be doubted that in exercising the
right of eminent domain, the State exercises its
jus imperii, as distinguished from its proprietary
rights or jus gestionis. Yet, even in that area, it
has been held that where private property has
been taken in expropriation without just
compensation being paid, the defense of
immunity from suit cannot be set up by the State
against an action for payment by the owner. 52
The Court also finds itself unable to sustain the
PCGG's other principal contention, of the nullity
of the Sandiganbayan's Order for the production
and inspection of specified documents and
things allegedly in its possession.
The Court gives short shrift to the argument that
some documents sought to be produced and
inspected had already been presented in Court
and marked preliminarily as PCGG's exhibits,
the movants having in fact viewed, scrutinized
and even offered objections thereto and made
comments thereon. Obviously, there is nothing
secret or confidential about these documents.
No serious objection can therefore be presented
to the desire of the private respondents to have
copies of those documents in order to study
them some more or otherwise use them during
the trial for any purpose allowed by law.
The PCGG says that some of the documents are
non-existent. This it can allege in response to the
corresponding question in the interrogatories,
and it will incur no sanction for doing so unless it
is subsequently established that the denial is
false.
The claim that use of the documents is
proscribed by Executive Order No. 1 has already
been dealt with. The PCGG is however at liberty
to allege and prove that said documents fall
within some other privilege, constitutional or
statutory.
The Court finally finds that, contrary to the
petitioner's theory, there is good cause for the
production and inspection of the documents
subject of the motion dated August 3, 1989.
53 Some of the documents are, according to the
verification of the amended complaint, the basis
of several of the material allegations of said
complaint. Others, admittedly, are to be used in
evidence by the plaintiff. It is matters such as
these into which inquiry is precisely allowed by
the rules of discovery, to the end that the parties
may adequately prepare for pre-trial and trial.
The only other documents sought to be
produced are needed in relation to the
allegations of the counterclaim. Their relevance
is indisputable; their disclosure may not be
opposed.
One last word. Due no doubt to the deplorable
unfamiliarity respecting the nature, purposes and
operation of the modes of discovery earlier
mentioned, 54 there also appears to be a widely
entertained idea that application of said modes is
a complicated matter, unduly expensive and
dilatory. Nothing could be farther from the truth.
For example, as will already have been noted
from the preceding discussion, all that is entailed
to activate or put in motion the process of
discovery by interrogatories to parties under
Rule 25 of the Rules of Court, is simply the
delivery directly to a party of a letter setting forth
a list of least questions with the request that they
be answered individually. 55 That is all. The
service of such a communication on the party
has the effect of imposing on him the obligation
of answering the questions "separately and fully
in writing underoath," and serving "a copy of the
answers on the party submitting the
interrogatories within fifteen (15) days after
service of the interrogatories . . ." 56 The
sanctions for refusing to make discovery have
already been mentioned. 57 So, too, discovery
under Rule 26 is begun by nothing more
complex than the service on a party of a letter or
other written communication containing a
request that specific facts therein set forth and/or
particular documents copies of which are thereto
appended, be admitted in writing. 58 That is all.
Again, the receipt of such a communication by
the party has the effect of imposing on him the
obligation of serving the party requesting
admission with "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," failing in which "(e)ach of
the matters of which admission is requested
shall be deemed admitted." 59 The taking of
depositions in accordance with Rule 24 (either
on oral examination or by written interrogatories)
while somewhat less simple, is nonetheless by
no means as complicated as seems to be the
lamentably extensive notion.
WHEREFORE, the petition is DENIED, without
pronouncement as to costs. The temporary
restraining order issued on October 27, 1989 is
hereby LIFTED AND SET ASIDE.
SO ORDERED.
G.R. No. L-25481 October 31, 1969
GERONIMO CAGUIAT, RUFINA CAGUIAT,
FELICIDAD CAGUIAT, FABIAN CAGUIAT,
and APOLONIA
CAGUIAT, petitioners-appellants,
vs.
THE HONORABLE GUILLERMO E. TORRES
and FRANCISCO
CAGUIAT, respondents-appellees.
De Santos and Delfino for petitioners-appellants.
L. D. Fuggan and Associates for
respondents-appellees.
BARREDO, J.:
Appeal by certiorari from the decision of the
Court of Appeals in CA-G.R. No. 35429-R,
Geronimo Caguiat, et al., Petitioners, vs. Hon.
Guillermo E. Torres and Francisco Caguiat,
Respondents, which "denied and dismissed" the
petition for certiorari filed by herein
petitioners-appellants for the purpose of
annulling and setting aside the order of
above-mentioned judge of the Court of First
Instance of Rizal in Civil Case No. 8050 of said
court between said appellants and private
appellee — respondent herein, Francisco
Caguiat granting the latter's motion to enjoin the
taking of said appellee's deposition, by way of
discovery, after issues had already been joined
by the filing of said appellee's answer as
defendant in said civil case.
The controlling facts as found by the Court of
Appeals are as follows:
Petitioners are plaintiffs in Civil Case No. 8050 of
the Court of First Instance of Rizal, Branch VIII,
presided over by respondent Judge, while
respondent Francisco Caguiat is the defendant
therein.
On August 18, 1964, after defendant had filed
his answer with counterclaim, and the plaintiffs,
their reply to defendant's answer (See Annexes
A, B, C, D), the herein petitioners served on
respondent Caguiat a notice to take his
deposition (Annex E). On August 26, 1964
respondent Caguiat filed with the lower court an
urgent motion to prevent the taking of the
deposition or to restrict its scope (Annex F),
which urgent motion the petitioners opposed
(Annex G). On the 29th of the same month the
respondent Judge issued an order (Annex F), to
hold in abeyance the resolution of his
co-respondent's urgent motion until after the
pre-trial set for September 3, 1963 which was,
however, reset for October 2, 1964 to give the
parties time to consider an amicable settlement.
The parties however failed to arrive at an
amicable settlement.
On October 3, 1964 herein petitioners again
served on respondent Caguiat a second notice
for the taking of his deposition upon oral
examination (Annexes K and L), to prevent
which, the latter filed an urgent motion on the
14th of the same month (Annex M). Petitioners
opposed respondent Caguiat's urgent motion
(Annex N). Resolving the urgent motion and the
opposition thereto, the respondent Judge, on the
17th, granted his co-respondent's urgent motion
and ordered the petitioners to refrain from taking
the contemplated deposition (Annex O).
Petitioner's motion for reconsideration (Annex P)
was denied after its hearing on December 12,
1964 (Annex S).
xxx xxx xxx
The petitioners' avowed purpose in securing the
deposition of respondent Caguiat is to get the
latter to lay his cards on the table and/or to
simplify or abbreviate the proceedings.
Respondent Caguiat, on the other hand, affirms
that he has already revealed practically his entire
defense, even to the extent of naming his
witnesses, during the pre-trial, so that the
necessity of a deposition has been obviated. In
fact, according to respondent Caguiat, he had
expressed willingness to enter into a stipulation
of facts, but apparently the petitioners did not
want to. We note that the petitioners have not
denied respondent Caguiat's assertion that he
had already disclosed all his evidence during the
pre-trial, neither have they belied that personal
animosities between them and the same
respondent which went unfettered during the
pre-trial, might endanger the peaceful and
objective conduct of the deposition upon oral
examination.
It is significant that the respondent Judge
deferred the resolution of his co-respondent's
first motion to prevent the taking of his deposition
or to restrict its scope, until after the pre-trial
(See Annex H). Likewise, the second urgent
motion of the same tenor (Annex M) and the
petitioners' opposition thereto (Annex N) were
resolved only after the completion of the pre-trial
and in fact after the parties' joint petition for
hearing on the merits had been granted (Annex
J). The fact that the controverted orders were
issued only after the pre-trial supports
respondent Caguiat's affirmation that he had
revealed his defense during the trial, and that the
respondent Judge had satisfied himself that after
such revelation there was no more need to take
the former's deposition upon oral examination.
Indubitably this view must have been shared by
the petitioners, otherwise they would not have
filed a joint motion for hearing on the merits even
before the orders in question were issued.
(Decision of Court of Appeals, pp. 1-2 & 4-5)
Appellants assign the following alleged errors of
the Court of Appeals:
I joint motion for hearing on the merits even
THE COURT OF APPEALS ERRED IN MAKING
ITS DECISION DEPEND ON THE
UNSUPPORTED CONCLUSION THAT 'SINCE
THE RESPONDENT FRANCISCO CAGUIAT
HAD PRACTICALLY DISCLOSED ALL HIS
EVIDENCE DURING THE PRE-TRIAL
CONFERENCE' THE NECESSITY OF A
DEPOSITION THROUGH ORAL
EXAMINATION BY THE PETITIONERS WAS
OBVIATED.
II
ASSUMING ARGUENDO THAT THERE WAS A
DISCLOSURE OF EVIDENCE BY THE
RESPONDENT CAGUIAT DURING THE
PRE-TRIAL CONFERENCE AND THAT THE
PERSONAL ANIMOSITIES BETWEEN THE
PARTIES MIGHT BE HEIGHTENED, THE
COURT OF APPEALS ERRED IN MAKING
SAID 'FINDINGS' AS GROUNDS TO
COMPLETELY PREVENT AND BAR
DISCOVERY THROUGH DEPOSITION ON
EXAMINATION.
III
THE COURT OF APPEALS ERRED IN
LIMITING PETITIONERS' MODE OF
DISCOVERY TO OTHER MEANS THAN ORAL
EXAMINATION IGNORING THEREBY THE
SPIRIT BEHIND THE RULES OF DISCOVERY.
(Appellants' brief)
Anent the first alleged error, it is readily to be
noted that the conclusions of fact of the Court of
Appeals being assailed are binding upon the
parties and this Court. Indeed, the finding of that
appellate court to the effect that appellee has
already disclosed all his evidence during the
pre-trial and that personal animosities between
the parties "might endanger the peaceful and
objective conduct of the deposition upon oral
examination" proposed appears well
substantiated in the records before Us. As aptly
stated in the appealed decision:
It is significant that the respondent Judge
deferred the resolution of his co-respondent's
first motion to prevent the taking of his deposition
or to restrict its scope, until after the pre-trial (see
Annex H). Likewise, the second urgent motion of
the same tenor (Annex M) and the petitioners'
opposition thereto (Annex N) were resolved only
after the completion of the pre-trial and in fact
after the parties' joint petition for hearing on the
merits had been granted (Annex J). The fact that
the controverted orders were issued only after
the pre-trial supports respondent Caguiat's
affirmation that he had revealed his defense
during the trial, and that the respondent Judge
had satisfied himself that after such revelation
there was no more need to take the former's
deposition upon oral examination. Indubitably
this view must have been shared by the
petitioners, otherwise they would not have filed a
before the orders in question were issued. (p. 5,
CA's decision)
In their second assignment of error, appellants
contend that the disclosure by appellee of
practically all his evidence at the pre-trial and the
danger of heightening the animosities between
the parties during the proposed taking of the
deposition of appellee are not enough to warrant
the trial court's order preventing completely the
taking of said deposition. Such contention is
untenable.
There can be no question that the trial court has
jurisdiction to direct, in its discretion, that a
deposition shall not be taken, if there are valid
reasons for so ruling. (Cojuangco v. Caluag,
L-7952, July 30, 1955, unreported) That the right
of a party to take depositions as means of
discovery is not exactly absolute is implicit in the
provisions of the Rules of Court cited by
appellants themselves, sections 16 and 18 of
Rule 24, which are precisely designed to protect
parties and their witnesses, whenever in the
opinion of the trial court, the move to take their
depositions under the guise of discovery is
actually intended to only annoy, embarrass or
oppress them. In such instances, these
provisions expressly authorize the court to either
prevent the taking of a deposition or stop one
that is already being taken.
In the case at bar, aside from having practically
disclosed all his evidence at the pre-trial,
appellee expressed willingness to enter into a
stipulation of facts, which offer, appellants
rejected. Moreover, according to Court of
Appeals, the parties herein filed a joint motion for
hearing on the merits even before the orders in
question were issued. Under these
circumstances, it is inevitable to conclude that
there was indeed no further need for the
deposition desired by appellants. It could have
served no useful purpose, for there was nothing
anymore to discover. Appellants have not shown
any real concrete reason for such deposition.
Appellants' inference in their third assignment of
error that the Court of Appeals has limited their
modes of discovery only to other means than a
deposition is entirely baseless. All that has been
done here is to hold, and rightly, that appellants
have failed to show that the trial court gravely
abused its discretion in holding that, under the
circumstances proven in the records, there
existed good reasons to prevent them from
taking the deposition of appellee.
It is Our conclusion that this appeal is absolutely
without merit. Instead of availing themselves of
the modes of discovery provided in the Rules in
the manner that would accomplish one of the
basic purposes for which they have been
designed, namely, to cut down trivial discussion
about issues of fact which are better agreed
upon rather than formally tried, appellants have
chosen to unduly delay this case by taking the
simple incident herein involved to the Court of
Appeals and later to this Court.
The judgment of the Court of Appeals is affirmed.
Treble costs against appellants in this instance.
G.R. No. 143561 June 6, 2001
JONATHAN D. CARIAGA, petitioner,
vs.
COURT OF APPEALS, PEOPLE OF THE
PHILIPPINES and DAVAO LIGHT and POWER
CO., respondents.
GONZAGA-REYES, J.:
This is a petition for review on certiorari seeking
the reversal of the decision1 of the Court of
Appeals in CA-G.R. No. 13363 entitled People v.
Jonathan Cariaga, promulgated on April 24,
1995 affirming the decision of the Regional Trial
Court of Davao City, Branch 11,2 which
convicted petitioner Jonathan Cariaga of the
crime of Qualified Theft.
In an amended Information3 dated October 3,
1989, petitioner was charged with qualified theft
as follows:
"That sometime during the period from October,
1988 to January, 1989, in the City of Davao,
Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused,
being then an employee of Davao Light & Power
Co. Inc., Davao City, and as such has access to
the said company, with intent to gain, with grave
abuse of confidence and without the knowledge
and consent of the owner thereof, did then and
there willfully, unlawfully and feloniously take,
steal and carry away electrical equipment,
supplies and materials totaling P7,038.96
belonging to Davao Light & Power Company, to
the damage and prejudice of the said company,
in the aforesaid amount of P7,038.96.
Contrary to law."
The factual background of this case as
summarized by the trial court and adopted by the
Court of Appeals is as follows:
"Luis Miguel Aboitiz, employed at the time of the
incident in question and for sometime prior
thereto as Systems Analyst of the Davao Light &
Power Company, Inc. (DLPC), whose duty was
to devise systems, procedures or controls to
promote efficiency, prevent losses due to waste,
pilferage or theft of company property, etc.,
received reports that some private electricians
were engaged in the clandestine sale of DLPC
materials and supplies. He initiated a covert
operation with the following objectives: (1)
ascertain how DLPC materials were being stolen,
the frequency of the thefts, who were
perpetrating the thefts; and (2) `catch' at least
one (1) DLPC employee that may be involved.
In October, 1988, he sought the assistance of
Sgt. Fermin Villasis, Chief, Theft & Robbery
Section, San Pedro Patrol Station, Davao
METRODISCOM. He also hired one Florencio
Siton, a welder by occupation and a Civilian
Home Defense Forces (CHDF) member, as his
undercover agent under the pseudonym 'Canuto
Duran', an 'electrician from Kabakan, Cotabato.'
'Canuto Duran' struck an acquaintance with one
Ricardo Cariaga, a private electrician, at the
Miguel Store, situated in front of the DLPC office
along Ponciano Reyes (now Bangoy) Street,
Davao City. He told Ricardo that his boss
ordered him to buy electrical materials to be
brought to Diwalwal, a gold panning area in
Monkayo, Davao (formerly Davao del Norte).
Ricardo offered to supply 'Canuto Duran' with
electrical materials, saying that he has a cousin
from whom he can procure the same. 'Canuto'
purchased small electrical wires which,
according to Ricardo, came from his cousin,
Jonathan Cariaga, nicknamed Totoy.
On November 17, 1988, Ricardo introduced
'Canuto' to Jonathan at Miguel Store. It turned
out that Jonathan was the assigned driver of
DLPC Service Truck 'S-143' assigned to Work
Gang 'Venus'. 'Canuto' inquired from Jonathan if
he could supply him with two (2) 15 KVA
transformers. Jonathan replied that he could for
P16,000. 'Canuto' placed an order for the
transformers. The deal did not materialize,
however, as 'Canuto's' boss (Miguel Aboitiz) who
would provide the funds happened to be out of
town. Jonathan appeared piqued. To appease
him, 'Canuto' assured him that they shall
continue their 'business' relationship. Not long
after, he placed an order for a lightning arrester.
Ricardo, Jonathan and 'Canuto' agreed to meet
at the corner of Jacinto and Arellano Streets.
Jonathan got DLPC Truck 'S-143' which was
inside the DLPC Compound at Ponciano Reyes
Street and drove it to the designated meeting
place, leaving 'Canuto' and Ricardo at Miguel
Store. After a while, Ricardo and 'Canuto'
followed. On the way, 'Canuto gave Ricardo
P1,800. At the meeting place, Ricardo gave the
money to Jonathan, after which the latter got a
lightning arrester (Exh. M) from his truck's
toolbox and handed it to Ricardo, who, in turn
gave it to 'Canuto'.
On January 23, 1989, Ricardo accompanied
'Canuto' to Jonathan's house at Doña Pilar
Village, Sasa, Davao City, to get a roll of
Electrical Wire No. 2 (300 meters long) valued
P5,010 (Exh. J) and 2 lightning arresters with
cutout, valued P1,185.75 each, or P2,371.50 for
both (Exhs. I and I-1) from Jonathan. 'Canuto'
paid P2,500.00 only for the items. He gave the
money to Ricardo; Ricardo, in turn, gave it to
Jonathan.
Siton's undercover work came to an abrupt end
on February 1, 1989 when members of Sgt.
Villasis' team 'apprehended' 'Canuto' and turned
him over, including the electrical wires that he
previously purchased from Jonathan through
Ricardo, to the San Pedro Patrol Station. The
team was unable to arrest Ricardo as he had
already left when the team arrived at his house.
'Canuto Duran' 'confessed' in order to persuade
Ricardo – and the others who were involved – to
likewise come out with the truth. Thus, when
Ricardo and Sergio Jamero appeared at the San
Pedro Patrol Station on the invitation of the
police, they confessed to their crimes (Exhs. A
and G, respectively).
Ricardo revealed that he acted as a fence for his
cousin, Jonathan Cariaga and 'Canuto Duran' on
November 27, 1988 and again on January 23,
1989; that the items that 'Canuto Duran' bought
from Jonathan, thru him, were DLPC properties.
Jamero also confessed that Ricardo was his
fence in disposing of DLPC electrical materials
that he pilfered but the items were not sold to
'Canuto Duran' but to someone else.
The recitals of Ricardo and Jamero in their
sworn statements are substantially corroborated
by entries in the Daily Record of Events (blotter)
of the San Pedro Patrol Station (Exhs. B, B-1; C,
C-1; D, D-1; E, E-1; and F, F-1).
The accused was also invited to the San Pedro
Patrol Station but, according to Sgt. Villasis, he
refused to give a statement.
The prosecution was unable to present Ricardo
as its witness as the subpoena could not be
personally served upon him as according to his
wife, Antonieta Cariaga, he was in Sultan
Kudarat and the date of his return to Davao City
was not certain (Exhs. Y, Y-1).
Acting on the extrajudicial confessions of the
suspects, the reports of Siton to the police and
the bust, the team under Sgt. Villasis recovered
the following items:
1. 1 pc. Lightning Arrester MEW Valve Type V
(Exh. "I");
2. 1 pc. Lightning Arrester MEW Valve Type
(Exh. "I-1");
3. 1 pc. Lightning Arrester MEW Thorex Type
(unmarked);
4. 1 pc. Fuse Cut-out S&C Brand with Bracket
(unmarked);
5. 1 pc. Fuse Cut-out with Fuse Holder, AB
Chance (Exh. "M");
6. 1 roll (330 meters) Aluminum Wire No. 8 (Exh.
"K");
7. 1 roll (300 meters) Aluminum Wire No. 2 (Exh.
"J");
8. 1 roll (36 coils) Aluminum Wire No. 6; ) One of
these
9. 1 roll (74 coils) Aluminum Wire No. 8; ) rolls is
10. 1 roll (41 coils) Aluminum Wire No. 2; )
marked Exh.
11. 1 set bracket for cut-out. ) "AA"
Sgt. Villasis testified that Exh. "U" and Exh. "AA"
were the wires recovered from Siton during the
bust while the rest, particularly Exhs. "I" and "I-1"
"J" and "M" were recovered at Roselo Toledo's
house where Siton ("Canuto Duran") brought
them; x x x."4
According to the trial court, "the prosecution's
evidence considered as a whole is strong, clear
and convincing. The statements in the
extrajudicial confessions of Ricardo Cariaga
(Exhs. A; O,O-1) implicative of the accused as
the source of the stolen articles, corroborated by
Siton's testimony and the police records (Exhs.
D to F-2, inclusive) are formidable compared to
the mere puny denial of the accused."
In due course, the trial court on November 18,
1991, rendered judgment, the decretal portion
reading:
"WHEREFORE, the Court finds accused
Jonathan Cariaga guilty beyond reasonable
doubt of theft, qualified by grave abuse of
confidence, under Article 310, in relation to
Article 309, par. 2, of the Revised Penal Code,
as charged, aggravated by the use of motor
vehicle which is not offset by any mitigating
circumstance. Applying the Indeterminate
Sentence Law, he is sentenced to suffer an
indeterminate penalty ranging from TEN (10)
Years, EIGHT (8) MONTHS AND ONE (1) DAY,
of prision mayor, as minimum, to EIGHTEEN (18)
YEARS, TWO (2) MONTHS AND TWENTY
ONE (21) DAYS of reclusion temporal, as
maximum; and to pay the costs.
No civil indemnity is awarded to DLPC, the
private complainant, as the items stolen were
recovered. The return to DLPC of all the items
recovered by the police is ordered.
SO ORDERED."5
On appeal by Jonathan Cariaga, the Court of
Appeals affirmed on April 24, 1995, the decision
of the trial court. The Court of Appeals reasoned
out that the sworn statement of Ricardo Cariaga
who did not testify in open court during the
criminal proceedings against petitioner is
admissible in evidence and properly considered
by the trial court as this was annexed as part of
DLPC's position paper submitted to the National
Labor Relations Commission in Case No.
RAB-11-05-00308-89, a complaint filed by the
accused for illegal dismissal, as an exception to
the hearsay rule under Section 47, Rule 130 of
the Revised Rules of Court. The Court of
Appeals likewise upheld the credibility of Siton's
testimony which corroborated that of Ricardo
Cariaga's sworn statement.
Hence, the instant petition raising the following
errors:
"I The trial court erred in admitting in evidence
the sworn statement of Ricardo Cariaga without
him taking the witness stand since it violates the
fundamental right of the accused to meet the
witnesses against him face to face. Hence,
Ricardo Cariaga's sworn statement is not
admissible under Section 1(f), Rule 115 of the
Revised Rules of Court for failure of the
prosecution to comply with the strict
requirements of said rule, to wit:
a] Ricardo Cariaga did not orally testify in the
labor case;
b] Inability to testify must be for a grave cause
almost amounting to death and the prosecution
must exhaust all available remedies to secure
the presence of its witnesses at the trial;
c] That the former proceeding must also be
criminal in nature.
II. The appellate court erred in holding that the
lone testimony of the prosecution's alleged
eyewitness who is a paid witness and whose
testimony was admittedly corrected or revised on
the witness stand and which materially and
significantly varies with his previous sworn
statement on very vital and pivotal details is
sufficient to prove the guilt of the accused
beyond reasonable doubt.
III.The appellate court erred in failing to
appreciate the reasonable doubt engendered by
the exculpatory statements of the superiors of
the accused in favor of the latter."6
In his first assignment of error, petitioner argues
that the sworn statement of Ricardo Cariaga who
was not presented in court is inadmissible. The
prosecution presented in evidence as Exh. P-2,
Ricardo Cariaga's sworn statement which was
attached as Annex "8-A" to DLPC's position
paper in the labor case filed by Jonathan
Cariaga against the latter for illegal dismissal.
The trial court admitted the same in evidence
despite the timely objection of the defense
counsel; and the Court of Appeals upheld the
admission thereof citing as basis, Section 47,
Rule 130 of the Rules on Evidence and Section
1(f), Rule 115 of the Rules on Criminal
Procedure.
Section 47 of Rule 130 reads:
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.
More specific however is the rule prescribed in
Rule 115, Section 1(f) of the Rules of Court in
respect of the admissibility in evidence in a
criminal case of the previous testimony of
unavailable witnesses which reads:
Section 1. Rights of accused at the trial. – In all
criminal prosecutions, the accused shall be
entitled:
f) To confront and cross-examine the witnesses
against him at the trial. Either party may utilize
as part of its evidence the testimony of a witness
who is deceased, out of or can not with due
diligence be found in the Philippines, unavailable
or otherwise unable to testify, given in another
case or proceeding, judicial or administrative,
involving the same parties and subject matter,
the adverse party having had the opportunity to
cross-examine him;
In Toledo, Jr. vs. People,7 this Court
emphasized that "the preconditions set forth in
Section 47, Rule 130 for the admission of
testimony given by a witness out of court must
be strictly complied with and that there is more
reason to adopt such a strict rule in the case of
Section 1(f) of Rule 115, for apart from being a
rule of evidence with additional specific
requisites to those prescribed by Section 47,
more importantly, said provision is an
implementing translation of the constitutional
right of an accused person "to meet the
witnesses (against him) face to face." In Tan vs.
Court of Appeals,8 it was ruled that "'unable to
testify' or for that matter 'unavailability', does not
cover the case of witnesses who were
subpoenaed but did not appear. It may refer to
inability proceeding from a grave cause, almost
amounting to death, as when the witness is old
and has lost the power of speech. It does not
refer to tampering of witnesses."
The threshold question then is the admissibility
of the sworn statement of Ricardo Cariaga which
was attached to DLPC's position paper in the
labor case filed by Jonathan Cariaga against it
for illegal dismissal.
The records reveal that witness Ricardo Cariaga
was subpoenaed only once and did not appear
to testify in the criminal case against petitioner.
Concededly, this witness was not deceased or
out of the Philippines. In fact, the private
prosecutor informed the court that he is in Sultan
Kudarat,9 and previously, his wife informed the
sheriff that he was in Sultan Kudarat which is in
Cotabato, a mere four hours drive from Davao
City. Against this backdrop, can this witness be
categorized as one that cannot be found despite
due diligence, unavailable or unable to testify.
We are inclined to rule in the negative and
reverse the Court of Appeals on this point.
It must be emphasized that this rule is strictly
complied with in criminal cases, hence, "mere
sending of subpoena and failure to appear is not
sufficient to prove inability to testify. The Court
must exercise its coercive power to arrest."10 In
the instant case, no efforts were exerted to have
the witness arrested which is a remedy available
to a party-litigant in instances where witnesses
who are duly subpoenaed fail to appear. On this
score alone, the sworn statement of Ricardo
Cariaga should not have been admitted as
evidence for the prosecution, and we shall no
longer delve into the other aspects of this rule.
In his second assignment of error, petitioner
assails the testimony of prosecution witness
Florencio Siton alias "Canuto Duran", the
undercover agent, as not credible because it is
allegedly inconsistent in very material and pivotal
details from the sworn statement he made at the
police station and that he is admitted by the
prosecution to be a paid witness. According to
petitioner, Siton's testimony was overhauled and
corrected to meet the crisis created by
eyewitness Ricardo Cariaga's non-appearance
in court. Petitioner argues further that Siton had
thousands of reasons to vary or exaggerate or
pervert the truth in his testimony because he
admitted that he was given by DLPC through Mr.
Aboitiz, a 15 KVA transformer worth P15,000.00
to P18, 000.00 and he also admitted on
cross-examination that "after the hearing he (Mr.
Aboitiz) will hire me as an employee or that he
will give me privilege."
He alleges that Siton never mentioned in his
sworn statement that he bought anything directly
from petitioner and only stated that the latter was
around when he bought some wires and
lightning arresters from Bondying and Bebing
Tumali, and then claimed on the witness stand
that he had direct dealings with petitioner. Siton
also failed to state in his sworn statement that he
went to the house of petitioner to purchase
DLPC materials; and he mentioned therein that
the arrangement was that the materials will be
delivered three days after payment, but in his
testimony, the materials were delivered upon
payment.
As we have so frequently ruled, the trial judge
who sees and hears witnesses testify has
exceptional opportunities to form a correct
conclusion as to the degree of credit which
should be accorded their testimonies.11 Next, the
rule has also always been that the contradictions
between the contents of an affiant's affidavit and
his testimony on the witness stand do not always
militate against the witness' credibility because
we have long taken judicial notice that affidavits,
which are usually taken ex parte, are often
incomplete and inaccurate.12 Indeed, a sworn
statement taken ex parte is generally considered
to be inferior to a testimony given in open court
as the latter is subject to the test of cross
examination.13
We have carefully gone over the records and
evidence in this case and we are persuaded that
Siton's testimony in court deserves credence.
We further find the same sufficient for conviction.
Siton was consistent and straightforward in his
testimony and had not been shaken by the
lengthy and exhaustive cross-examination by the
defense counsel. Having thoroughly convinced
the trial and appellate courts as well as this
Court of the truth of his testimony, we do not see
how he could have fabricated the entire story.
The fact that he stated on direct examination that
he "corrected" his statement and that he was
offered compensation for his undercover work
does not necessarily discredit him. There is no
rule of evidence to the effect that omission of
certain particulars in a sworn statement would
estop an affiant from making an elaboration
thereof or from correcting inaccuracies during
the trial. It appears that he was paid for his
services rendered as an undercover agent and
not for purposes of concocting a story and
imputing a crime as that made out in the
information. Similarly, the alleged inaccuracies in
the testimony of Siton in open court relating to
such minute details as whether the petitioner's
house was two-stories high and located in a
corner are too negligible to consider.
Finally, we reject petitioner's claim that the
testimonies of three witnesses for the
prosecution, namely, Sauro, Saligan and Aboitiz,
engendered reasonable doubt sufficient to
exculpate him. He points out that "Rodolfo Sauro,
gang crew supervisor of petitioner testified that
he has not reported any missing materials in the
truck driven by the petitioner; that Luis Aboitiz
testified that he asked Estelito Saligan to
conduct investigation if there were materials
missing `but the latter came out with the report
that he could not find any missing materials'; and
that Estelito Saligan, head of Materials
Management Department of the DLPC
confirmed on cross-examination that there were
no properties lost or missing."
However, a more accurate reading of the
testimonies of the said witnesses reveals that
Rodolfo Sauro14 testified that petitioner is
permanently assigned as driver to the S-143
truck; that he is in charge of all the equipment
and supplies stored in the truck; that there were
always reserve materials kept in the truck for
emergency operations during the night and that
he trusted him that these materials were being
used for emergencies.15 He also testified that he
took Jonathan's word that the reserve materials
were used for emergencies because he found
him trustworthy.16 On the other hand, Engr.
Estelito Saligan was recalled to the witness
stand to clarify Mr. Aboitiz's statement that "he
was ordered to make inventories and that he did
not find any missing." He clarified that he only
inventoried the materials inside the warehouse
which are within his jurisdiction, but he did not
conduct inventory of materials or properties
already in the possession of the operations
department17 of which petitioner belonged to. In
sum, nothing in the cited testimonies confirm
petitioner's insistence that there were no stolen
electrical supplies and materials from DLPC.
In fine, we are satisfied that the participation of
the petitioner in the commission of the crime at
bar was well established by the testimony of
witness Siton. In the determination of the
sufficiency of evidence, what matters is not the
number of witnesses but their credibility and the
nature and quality of their testimonies.18 It is
axiomatic that witnesses are weighed, not
numbered and the testimony of only one witness,
if credible and positive and if it satisfies the court
beyond reasonable doubt, is sufficient to convict.
The inadmissibility of Ricardo Cariaga's sworn
statement as discussed above will not exculpate
him.
The defense, verily, anchors itself on the bare
denial of petitioner of the specific acts imputed
by the prosecution against him. Certainly, this
negative assertion cannot prevail over the
unimpeached testimony of the prosecution
witness, Florencio Siton alias "Canuto Duran"
describing in sufficient detail the active
participation of petitioner in the commission of
the crime charged. As aptly observed by the trial
court:
"The accused's defense consisted of a general
denial; that the items alleged by the prosecution
as having been pilfered from DLPC were
available in any store selling electrical supplies.
Despite having been positively pointed to as the
person who sold small electrical wires, lightning
arresters and a roll of Electrical Wire No. 2 that
were pilfered from DLPC to "Canuto Duran"
(Siton), thru Ricardo Cariaga, he did not
categorically deny the imputation: he merely
declared that he did not know Siton (he did not
say that he did not know "Canuto Duran") nor did
he say that he did not sell anything to "Canuto
Duran" thru Ricardo Cariaga. As a rule, positive
testimony as to a particular fact, uncontradicted
by anyone, should control the decision of the
court (Ko Tieck vs. People, L-48535-36, Dec. 21,
1991)."
We note that the information alleged that
petitioner was an employee of DLPC; that he
had access to the electrical supplies of said
company; and that with grave abuse of
confidence, he stole electrical materials
belonging to DLPC. The prosecution established
that petitioner who was permanently assigned as
driver of Truck "S-143" had charge of all the
DLPC equipment and supplies kept in his vehicle,
including lightning arresters, cut-out and wires,
which were generally used for the installation of
transformers and power lines; and specifically
stored therein for emergency operations at night
when the stockroom is closed. While the mere
circumstance that the petitioner is an employee
or laborer of DLPC does not suffice to create the
relation of confidence and intimacy that the law
requires to designate the crime as qualified theft,
it has been held that access to the place where
the taking took place or access to the stolen
items changes the complexion of the crime
committed to that of qualified theft.19 Thus, theft
by a truck driver who takes the load of his truck
belonging to his employer is guilty of qualified
theft20as was proven in this case. The trial court
correctly considered petitioner's use of a motor
vehicle in the commission of the crime as a
generic aggravating circumstance thus raising
the penalty to its maximum.21 While the
aggravating circumstance of "by means of motor
vehicle" was not alleged in the information, there
is evidence that the same was employed to
facilitate the commission of the crime. A generic
aggravating circumstance may be proved even if
not alleged.22 The theft could not have been
effected without the aid of the motor vehicle,23 as
proven by the prosecution, the service truck was
used in storing and then transporting the stolen
electrical materials to the place where they were
sold.1âwphi1.nêt

We now come to the correctness of the penalty

imposed. The trial court meted on petitioner an
indeterminate penalty ranging from ten (10)
years, eight (8) months and one (1) day,
of prision mayor, as minimum, to eighteen (18)
years, two (2) months and twenty one (21) days
of reclusion temporal as maximum. Since the
value of the electrical materials is P7,038.96, the
imposable penalty for the felony of theft is prision
correccional in its medium and maximum
periods in accordance with Article 309,
paragraph 2 of the Revised Penal
Code.24 However, under Article 310 of the
Revised Penal Code,25 the crime of qualified
theft is punished by the penalties next higher by
two (2) degrees than that specified in Article 309
of the Revised Penal Code. Under Article 25 of
the Revised Penal Code, two (2) degrees higher
than prision correccional in its medium and
maximum periods is prision mayor in its
maximum period to reclusion temporal in its
minimum period which is ten (10) years and one
(1) day to fourteen (14) years and eight (8)
months. Considering there is one generic
aggravating circumstance, the penalty should
be reclusion temporal in its minimum period.
Applying the Indeterminate Sentence Law, the
correct penalty is eight (8) years, eight (8)
months and one (1) day of prision mayor as
minimum to thirteen (13) years, one (1) month
and eleven (11) days of reclusion temporal as
maximum.

WHEREFORE, the decision of the Court of

Appeals dated April 24, 1995 is hereby
AFFIRMED with the MODIFICATION that the
penalty is reduced to EIGHT (8) years, EIGHT (8)
months and ONE (1) day of prisionmayor as
minimum to THIRTEEN (13) years, ONE (1)
month and ELEVEN (11) days of reclusion
temporal as maximum.

SO ORDERED.