Republic of the
Supreme
Court
EN BANC
|
REPUBLIC OF THE Petitioner, - versus -
SANDIGANBAYAN (FOURTH DIVISION), JOSE L. AFRICA (substituted by his heirs), MANUEL H. NIETO, JR., FERDINAND E. MARCOS (substituted by his heirs), IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., JUAN PONCE ENRILE, and POTENCIANO ILUSORIO (substituted by his heirs), Respondents. |
G.R. No. 152375 Present: CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, ABAD, VILLARAMA, JR., PEREZ, SERENO, REYES, and PERLAS-BERNABE, JJ. Promulgated: December 16, 2011 |
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D E C I S I O N
BRION, J.:
Before us is the petition for certiorari[1] filed by the Republic of the Philippines (petitioner) to set aside the February 7, 2002 resolution (2002 resolution)[2] of the Sandiganbayan[3] denying the petitioners Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice V. Bane) (3rd motion).
THE
ANTECEDENTS
On July 22, 1987, the petitioner Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), filed a complaint (docketed as Civil Case No. 0009) against Jose L. Africa, Manuel H. Nieto, Jr., Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan Ponce Enrile, and Potenciano Ilusorio (collectively, the respondents) for reconveyance, reversion, accounting, restitution, and damages before the Sandiganbayan. The petitioner alleged, inter alia, that the respondents illegally manipulated the purchase of the major shareholdings of Cable and Wireless Limited in Eastern Telecommunications Philippines, Inc. (ETPI), which shareholdings respondents Jose Africa and Manuel Nieto, Jr. held for themselves and, through their holdings and the corporations they organized, beneficially for respondents Ferdinand E. Marcos and Imelda R. Marcos.[4]
Civil
Case No. 0009 is the main case subject of the present petition. Victor Africa (
Civil Case No. 0009 spawned numerous incidental cases,[6] among them, Civil Case No. 0130.[7] The present respondents were not made parties either in Civil Case No. 0130.
I. Civil
Case No. 0130
In
the
Thereafter,
[T]o account for his sequestered shares in ETPI and to
cease and desist from exercising voting rights on the sequestered shares in the
special stockholders meeting to be held on August 12, 1991, from representing
himself as a director, officer, employee or agent of ETPI, and from
participating, directly or indirectly[,] in the management of ETPI.[9]
During the pendency
of Africas petition, Civil Case No. 0130, Africa filed a motion with the
Sandiganbayan, alleging that since January 29, 1988 the PCGG had been
illegally exercising the rights of stockholders of ETPI,[10]
especially in the election of the members of the board of directors.
In
its
WHEREFORE, it is ordered that an annual stockholders
meeting of the [ETPI], for 1992 be held on
The following minimum safeguards must be set in place and carefully maintained
until final judicial resolution of the question of whether or not the
sequestered shares of stock (or in a proper case the underlying assets of the
corporation concerned) constitute ill-gotten wealth[.][12]
The PCGG assailed this
resolution before this Court via a petition for certiorari docketed as G.R. No. 107789[13] (PCGGs petition), imputing
grave abuse of discretion on the Sandiganbayan for holding, inter alia,
that the registered stockholders of ETPI had the right to vote.[14] In
our
In the meantime, in an
During the pendency of
PCGGs petition (G.R. No. 107789), the PCGG filed with this Court a Very
Urgent Petition for Authority to Hold Special Stockholders Meeting for [the]
Sole Purpose of Increasing [ETPIs] Authorized Capital Stock (Urgent
Petition). In our
In the proceedings to
resolve the Urgent Petition, the testimony of Mr. Maurice V. Bane (former director
and treasurer-in-trust of ETPI) was taken at the petitioners instance and
after serving notice of the deposition-taking on the respondents[18]
on October 23 and 24, 1996 by way of deposition upon oral examination (Bane
deposition) before Consul General Ernesto Castro of the Philippine Embassy
in London, England.
Invoking Section 1, Rule
24 (of the old Rules of Court), purportedly allowing the petitioner to depose
Bane without leave of court, i.e., as a matter of right after the
defendants have filed their answer, the notice stated that [t]he purpose
of the deposition is for [Bane] to identify and testify on the facts set forth
in his affidavit[19] x x x so as to prove the
ownership issue in favor of [the petitioner] and/or establish the prima
facie factual foundation for sequestration of [ETPIs] Class A stock in
support of the [Urgent Petition].[20] The
notice also states that the petitioner shall use the Bane deposition in
evidence in the main case of Civil Case No. 0009.[21] On
the scheduled deposition date, only
On
We jointly resolved the PCGGs and
This Court notes that, like in
x x x x
WHEREFORE, this Court
Resolved to REFER the petitions at bar to the Sandiganbayan for reception of
evidence to determine whether there is a prima facie evidence showing that the
sequestered shares in question are ill-gotten and there is an imminent danger
of dissipation to entitle the PCGG to vote them in a stockholders meeting to
elect the ETPI Board of Directors and to amend the ETPI Articles of
Incorporation for the sole purpose of increasing the authorized capital stock of
ETPI.
The Sandiganbayan shall render a decision thereon
within sixty (60) days from receipt of this Resolution and in conformity
herewith.
II.
Civil Case No. 0009
Although
Civil Case No. 0009 was filed on
In
its Pre-Trial Brief[26]
dated
WITNESSES TO BE PRESENTED AND A
BRIEF DESCRIPTION OF THEIR TESTIMONIES
(1)
Maurice
V. Bane representative of Cable and Wireless Limited (C & W) at the time
ETPI was organized.
x x x
x
(2)
Mr.
Manuel H. Nieto x x x
(3)
Ms.
Evelyn Singson x x x
(4)
Mr.
Severino P. Buan, Jr. x x x
(5)
Mr.
Apolinario K. Medina - x x x
(6)
Mr.
Potenciano A. Roque x x x
(7)
Caesar
Parlade - x x x
IIa.
Motion to Admit the Bane Deposition
At the trial of Civil Case No. 0009, the petitioner
filed a Motion[27]
(1st motion), stating that
1.
In
the hearings of the incidents of [Civil Case No. 0009], i.e., Civil Case Nos.
0048, 0050, 0130, 0146[28]
the following witnesses were presented therein:
a.
Cesar
O.V. Parlade
b.
Maurice
Bane
c.
Evelyn
Singson
d.
Leonorio
Martinez
e.
Ricardo
Castro; and
f.
Rolando
Gapud
2.
[The
petitioner] wishes to adopt in [Civil Case No. 0009] their testimonies and the
documentary exhibits presented and identified by them, since their testimonies
and the said documentary exhibits are very relevant to prove the case of the
[petitioner] in [Civil Case No. 0009].
3.
The
adverse parties in the aforementioned incidents had the opportunity to
cross-examine them.
The respondents filed their respective Oppositions
to the 1st motion;[29]
in turn, the petitioner filed a Common Reply[30] to these Oppositions.
On
Wherefore, the [petitioners] Motion
x x x is
1.
partly denied insofar as [the petitioner]
prays therein to adopt the testimonies on oral deposition of Maurice V. Bane
and Rolando Gapud as part of its
evidence in Civil Case No. 0009 for the reason that said deponents
according to the [petitioner] are not available for cross-examination in this Court
by the [respondents]. (emphasis added)
2.
partly
Granted, in the interest of speedy disposition of this long pending case,
insofar as plaintiff prays therein to adopt certain/particular testimonies of
Cesar O. Parlade, Evelyn Singson, Leoncio Martinez, and Ricardo Castro and
documentary exhibits which said witnesses have identified in incident Civil
Case Nos. xxx 0130 xxx, subject to the following conditions :
1. xxx
2. xxx
3. That the said witnesses be
presented in this Court so that they can be cross-examined on their particular
testimonies in incident Civil Cases xxx [by the respondents].
IIb.
Urgent Motion and/or Request for Judicial Notice
The
petitioner did not in any way question the 1998 resolution, and instead made
its Formal Offer of Evidence on December 14, 1999.[33] Significantly,
the Bane deposition was not included as part of its offered exhibits. Rectifying
the omission, the petitioner filed an Urgent Motion and/or Request for
Judicial Notice[34]
(2nd motion) dated
1.
An
order forthwith be issued re-opening the plaintiffs case and setting
the same for trial any day in April 2000 for the sole purpose of introducing
additional evidence and limited only to the marking and offering of the [Bane
deposition] which already forms part of the records and used in Civil Case No.
0130 x x x;
2.
In
the alternative, x x x the [Sandiganbayan] to take judicial notice of the facts
established by the [Bane deposition], together with the marked exhibits
appended thereto. [emphasis ours]
On
Judicial notice
is found under Rule 129 which is titled What Need Not Be Proved. Apparently,
this provision refers to the Courts duty to consider admissions made by the
parties in the pleadings, or in the course of the trial or other proceedings in
resolving cases before it. The duty of the Court is mandatory and in those
cases where it is discretionary, the initiative is upon the Court. Such being
the case, the Court finds the Urgent Motion and/or Request for Judicial Notice
as something which need not be acted upon as the same is considered redundant.
On the matter of
the [Bane deposition], [its] admission is done through the ordinary formal
offer of exhibits
wherein the defendant is given ample
opportunity to raise objection on grounds provided by law. Definitely, it
is not under Article (sic) 129 on judicial notice. [Emphasis ours]
On
IIc. Motion
to Admit Supplemental Offer of
Evidence
(Re: Deposition of Maurice Bane)
On
But
in the courts view, it is not really a question of whether or not plaintiff
has already rested its case as to obviate the further presentation of evidence.
It is not even a question of whether the non-appearing defendants are deemed to
have waived their right to cross-examine Bane as to qualify the admission of
the deposition sans such cross-examination. Indeed, We do not see any need to
dwell on these matters in view of this Courts Resolution rendered
on
The resolution
triggered the filing of the present petition.
THE PETITION
The petitioner filed the present
petition claiming that the Sandiganbayan committed grave abuse of discretion:
I.
x x x IN HOLDING THAT ITS INTERLOCUTORY ORDER IN 1998
HAD BECOME FINAL.
II.
x x x IN x x x REFUSING TO ADMIT THE BANE DEPOSITION
WHICH WAS ALREADY ADMITTED AS EVIDENCE IN AN INCIDENT CASE (CIVIL CASE NO.
0130) AS PART OF PETITIONERS EVIDENCE IN THE MAIN x x x CASE (CIVIL CASE NO.
0009).
III.
x x x IN REFUSING TO ADMIT A HIGHLY RELEVANT AND
IMPORTANT PIECE OF EVIDENCE FOR THE PETITIONER ON THE BASIS OF FLIMSY AND
TENUOUS TECHNICAL GROUNDS.
The petitioner[41] argues that the 1998 resolution of the Sandiganbayan is merely an interlocutory order; thus, the petitioners failure to question this 1998 resolution could not have given it a character of finality so long as the main case remains pending.[42] On this basis, the petitioner concludes that the Sandiganbayans denial of its 3rd motion was plainly tainted with grave abuse of discretion.
On the issue of the Sandiganbayans refusal (in its 2002 resolution) either to take judicial notice of or to admit the Bane deposition as part of its evidence, the petitioner asserts that Civil Case No. 0130 (where the Bane deposition was originally taken, introduced and admitted in evidence) is but a child of the parent case, Civil Case No. 0009; under this relationship, evidence offered and admitted in any of the children cases should be considered as evidence in the parent case.
Lastly, the petitioner claims that given the crucial importance of the Bane deposition, the Sandiganbayan should not have denied its admission on flimsy grounds, considering that:
1. It was also already stated in the notice (of the taking of the Bane deposition) that it would be used as evidence in Civil Case No. 0009. Notices having been duly served on all the parties concerned, they must accordingly be deemed to have waived their right to cross-examine the witness when they failed to show up.
2. The Bane deposition was a very vital cog in the case of the petitioner relative to its allegation that the respondents interest in ETPI and related firms properly belongs to the government.
3. The non-inclusion of the Bane deposition in the petitioners formal offer of evidence was obviously excusable considering the period that had lapsed from the time the case was filed and the voluminous records that the present case has generated.[43]
THE
RESPONDENTS COMMENTS
and
THE PETITIONERS REPLY
In the respondents Comments[44] (filed in compliance with our Resolution of April 10, 2002[45]), they claim that the present petition was filed out of time - i.e., beyond the 60-day reglementary period prescribed under Section 4, Rule 65 of the Rules of Court.[46] This assertion proceeds from the view that the petitioners 3rd motion, being a mere rehash of similar motions earlier filed by the petitioner, likewise simply assails the Sandiganbayans 1998 resolution. Along the same line, they posit that the petitioners 3rd motion actually partakes of a proscribed third motion for reconsideration of the Sandiganbayans 1998 resolution.[47] They likewise assert, on the assumption that the 1998 resolution is interlocutory in character, that the petitioners failure to contest the resolution by way of certiorari within the proper period gave the 1998 resolution a character of finality.
The respondents further claim that after a party has rested its case, the admission of a supplemental offer of evidence requires the reopening of the case at the discretion of the trial court; the Sandiganbayan simply exercised its sound discretion in refusing to reopen the case since the evidence sought to be admitted was within the knowledge of the [petitioner] and available to [it] before [it] rested its case.[48] The respondents also advert to the belated filing of the petitioners 3rd motion i.e., after the respondents had filed their respective demurrers to evidence.
On the petitioners claim of waiver, the respondents assert that they have not waived their right to cross-examine the deponent; the Sandiganbayan recognized this right in its 1998 resolution and the petitioner never questioned this recognition. They also assert that the allegations in the Bane deposition cannot be a proper subject of judicial notice under Rule 129 of the Rules of Court. The respondents lastly submit that the Bane deposition is inadmissible in evidence because the petitioner failed to comply with the requisites for admission under Section 47, Rule 130 of the Rules of Court.
In its Reply,[49] the petitioner defends the timeliness of the present petition by arguing that a party may opt to wait out and collect a pattern of questionable acts before resorting to the extraordinary remedy of certiorari. The petitioner stresses that it filed the 3rd motion precisely because of the Sandiganbayans 2000 resolution, which held that the admission of the Bane deposition should be done through the ordinary formal offer of evidence. Thus, the Sandiganbayan seriously erred in considering the petitioners 3rd motion as a proscribed motion for reconsideration. The petitioner generally submits that the dictates of substantial justice should have guided the Sandiganbayan to rule otherwise.
The petitioner also clarifies that it has not yet rested its case although it has filed a formal offer of evidence. A party normally rests his case only after the admission of the pieces of evidence he formally offered; before then, he still has the opportunity to present further evidence to substantiate his theory of the case should the court reject any piece of the offered evidence.[50]
The petitioner further maintains that the mere reasonable opportunity to cross-examine the deponent is sufficient for the admission of the Bane deposition considering that the deponent is not an ordinary witness who can be easily summoned by our courts in light of his foreign residence, his citizenship, and his advanced age. The petitioner asserts that Rule 24 (now Rule 23), and not Section 47, Rule 130, of the Rules of Court should apply to the present case, as explicitly stated in the notice of the deposition-taking.
To date, respondents Imelda Marcos and the heirs of Potenciano Ilusorio have yet to file their respective comments on the petition. Given the time that had lapsed since we required their comments, we resolve to dispense with the filing of these comments and to consider this petition submitted for decision.
THE
ISSUES
On the basis of the pleadings, we summarize the pivotal issues for our resolution, as follows:
1. Whether the petition was filed within the required period.
2. Whether the Sandiganbayan committed grave abuse of discretion
i. In holding that the 1998 resolution has already attained finality;
ii. In holding that the petitioners 3rd motion partakes of a prohibited motion for reconsideration;
iii. In refusing to re-open the case given the critical importance of the Bane deposition to the petitioners cause; and
iv. In refusing to admit the Bane deposition notwithstanding the prior consolidation of Civil Case No. 0009 and Civil Case No. 0130.
3. Whether the Bane deposition is admissible under -
i. Rule 23, Section 4, par. (c) alone or in relation to Section 47, Rule 130 of the Rules of Court; and
ii. The principle of judicial notice.
THE COURTS RULING
We deny the
petition for lack of merit.
I. Preliminary Considerations
I (a). The interlocutory nature of the Sandiganbayans 1998
resolution.
In determining the appropriate remedy or remedies available, a party aggrieved by a court order, resolution or decision must first correctly identify the nature of the order, resolution or decision he intends to assail.[51] In this case, we must preliminarily determine whether the 1998 resolution is final or interlocutory in nature.
Case law has conveniently demarcated the line between a final judgment or order and an interlocutory one on the basis of the disposition made.[52] A judgment or order is considered final if the order disposes of the action or proceeding completely, or terminates a particular stage of the same action; in such case, the remedy available to an aggrieved party is appeal. If the order or resolution, however, merely resolves incidental matters and leaves something more to be done to resolve the merits of the case, the order is interlocutory[53] and the aggrieved partys remedy is a petition for certiorari under Rule 65. Jurisprudence pointedly holds that:
As
distinguished from a final order which disposes of the
subject matter in its entirety or terminates a particular proceeding or action,
leaving nothing else to be done but to enforce by execution what has been
determined by the court, an interlocutory order does not
dispose of a case completely, but leaves something more to be adjudicated upon.
The term final judgment or order signifies a judgment or an order which
disposes of the case as to all the parties, reserving no further questions or
directions for future determination.
On the other hand, a court order is merely
interlocutory in character if it leaves substantial
proceedings yet to be had in connection with the controversy. It does not
end the task of the court in adjudicating the parties contentions and
determining their rights and liabilities as against each other. In this sense, it is basically provisional in its application.[54] (emphasis
supplied)
Under these guidelines, we agree with the petitioner that the 1998 resolution is interlocutory. The Sandiganbayans denial of the petitioners 1st motion through the 1998 Resolution came at a time when the petitioner had not even concluded the presentation of its evidence. Plainly, the denial of the motion did not resolve the merits of the case, as something still had to be done to achieve this end.
We clarify, too, that an interlocutory order remains under the control of the court until the case is finally resolved on the merits. The court may therefore modify or rescind the order upon sufficient grounds shown at any time before final judgment.[55] In this light, the Sandiganbayans 1998 resolution which merely denied the adoption of the Bane deposition as part of the evidence in Civil Case No. 0009 could not have attained finality (in the manner that a decision or final order resolving the case on the merits does) despite the petitioners failure to move for its reconsideration or to appeal.[56]
I
(b). The 3rd motion was not prohibited by the Rules.
We also agree with the petitioner that its 3rd motion cannot be considered as a proscribed third (actually second) motion for reconsideration of the Sandiganbayans 1998 resolution. As Section 5, Rule 37 of the Rules of Court clearly provides, the proscription against a second motion for reconsideration is directed against a judgment or final order. Although a second motion for reconsideration of an interlocutory order can be denied on the ground that it is a mere "rehash" of the arguments already passed upon and resolved by the court, it cannot be rejected on the ground that it is forbidden by the law or by the rules as a prohibited motion.[57]
I
(c). The 1998 resolution was not ripe
for a petition for certiorari.
Under Section 1, Rule 41 of the Rules of Court, an aggrieved party may appeal from a judgment or final order which completely disposes of a case or from an order that the Rules of Court declares to be appealable. While this provision prohibits an appeal from an interlocutory order, the aggrieved party is afforded the chance to question an interlocutory order through a special civil action of certiorari under Rule 65; the petition must be filed within sixty days from notice of the assailed judgment, order, resolution, or denial of a motion for reconsideration.
On the premise that the 1998 resolution is interlocutory in nature, the respondents insist that the 60-day period for filing a petition for certiorari should be reckoned from the petitioners notice of the Sandiganbayans 1998 resolution. They argue that since this ruling had long been rendered by the court, the petitioners subsequent filing of similar motions was actually a devious attempt to resuscitate the long-denied admission of the Bane deposition.
We do not find the respondents submission meritorious. While the 1998 resolution is an interlocutory order, as correctly argued by the petitioner and impliedly conceded by the respondents, the claim that the 1998 resolution should have been immediately questioned by the petitioner on certiorari is not totally correct as a petition for certiorari is not grounded solely on the issuance of a disputed interlocutory ruling.[58] For a petition for certiorari to prosper, Section 1, Rule 65 of the Rules of Court requires, among others, that neither an appeal nor any plain, speedy and adequate remedy in the ordinary course of law is available to the aggrieved party. As a matter of exception, the writ of certiorari may issue notwithstanding the existence of an available alternative remedy, if such remedy is inadequate or insufficient in relieving the aggrieved party of the injurious effects of the order complained of.[59]
We note that at the time of its 1st motion in
Civil Case No. 0009, the petitioner had not yet concluded the presentation of
its evidence, much less made any formal offer of evidence. At this stage of the
case, the prematurity of using the extraordinary remedy of certiorari to
question the admission of the Bane deposition is obvious. After the denial of the 1st
motion, the plain remedy available to the petitioner was to move for a
reconsideration to assert and even clarify its position on the admission of the
Bane deposition. The petitioner could introduce[60]
anew the Bane deposition and include this as evidence in its formal offer[61]
as the petitioner presumably did in Civil Case No. 0130.
Thus, at that point, the case was not yet ripe for the
filing of a petition for certiorari,
and the denial of the 1st motion could not have been the reckoning
point for the period of filing such a petition.
II.
The Sandiganbayans ruling on the
finality of its 1998 resolution was legally erroneous but did not constitute
grave abuse of discretion
In light of the above discussions and conclusions, the Sandiganbayan undoubtedly erred on a question of law in its ruling, but this legal error did not necessarily amount to a grave abuse of discretion in the absence of a clear showing that its action was a capricious and whimsical exercise of judgment affecting its exercise of jurisdiction.[62] Without this showing, the Sandiganbayans erroneous legal conclusion was only an error of judgment, or, at best, an abuse of discretion but not a grave one. For this reason alone, the petition should be dismissed.
Despite
this conclusion, however, we opt not to immediately dismiss the petition in
light of the unique circumstances of this case where the petitioner cannot entirely
be faulted for not availing of the remedy at the opportune time, and where the
case, by its nature, is undoubtedly endowed with public interest and has become
a matter of public concern.[63] In other words, we
opt to resolve the petition on the merits to lay the issues raised to rest and
to avoid their recurrence in the course of completely resolving the merits of
Civil Case No. 0009.
Although the word rested nowhere appears in the Rules of Court, ordinary court procedure has inferred it from an overview of trial sequence under Section 5, Rule 30 (which capsulizes the order of presentation of a
partys evidence during trial), read in relation to Rule 18 on Pre-Trial,[64] both of the Rules of Court. Under Section 5, Rule 30, after a party has adduced his direct evidence in the course of discharging the burden of proof,[65] he is considered to have rested his case, and is thereafter allowed to offer rebutting evidence only.[66] Whether a party has rested his case in some measure depends on his manifestation in court on whether he has concluded his presentation of evidence.[67]
In its second and third motions, respectively, the petitioner expressly admitted that due to oversight, [the petitioner] closed and rested its case;[68] and that it had terminated the presentation of its evidence in x x x Civil Case No. 0009.[69] In the face of these categorical judicial admissions,[70] the petitioner cannot suddenly make an about-face and insist on the introduction of evidence out of the usual order. Contrary to the petitioners assertion, the resting of its case could not have been conditioned on the admission of the evidence it formally offered. To begin with, the Bane deposition, which is the lone piece of evidence subject of this present petition, was not among the pieces of evidence included in its formal offer of evidence and thus could not have been admitted or rejected by the trial court.
The Court observes with interest that it was only in this
present petition for certiorari that the petitioner had firmly denied
having rested its case.[71] Before then, the petitioner never found it
appropriate to question on certiorari the Sandiganbayans denial of its
2nd motion which prayed, inter alia, for the reopening of
the case. This is a fatal defect in the petitioners case.
Although the denial of the petitioners first motion did
not necessitate an immediate recourse to the corrective writ of certiorari,
the denial of the 2nd motion dictated a different course of action.
The petitioners non-observance of the proper procedure for the admission of
the Bane deposition, while seemingly innocuous, carried fatal implications for
its case. Having been rebuffed on its
first attempt to have the Bane deposition adopted in Civil Case No. 0009, and
without seeking reconsideration of the denial, the petitioner presented its
other pieces of evidence and eventually rested its case. This time, the
petitioner forgot about the Bane deposition and so failed to include that piece
of evidence in its formal offer of evidence.
More than two years later, the petitioner again tried to squeeze in the Bane deposition into its case. In resolving the petitioners motion for reconsideration of the Sandiganbayans 2000 resolution, the Sandiganbayan held that the Bane deposition has become part and parcel of Civil Case No. 0009. This pronouncement has obscured the real status of the Bane deposition as evidence (considering that, earlier, the Sandiganbayan already denied the petitioners attempt to adopt the Bane deposition as evidence in Civil Case No. 0009 for the deponent cannot be cross-examined in court). Nevertheless, the Sandiganbayan ultimately denied the petitioners motion to reopen the case. Having judicially admitted the resting of its case, the petitioner should have already questioned the denial of its 2nd motion by way of certiorari, since the denial of its attempt to reopen the case effectively foreclosed all avenues available to it for the consideration of the Bane deposition. Instead of doing so, however, the petitioner allowed the 60-day reglementary period, under Section 4, Rule 65 of the Rules of Court, to lapse, and proceeded to file its 3rd motion.
Significantly, the petitioner changed its legal position in its 3rd motion by denying having rested its case and insisting on the introduction of the Bane deposition. Rebuffed once more, the petitioner filed the present petition, inviting our attention to the Sandiganbayans resolutions,[72] which allegedly gave it mixed signals.[73] By pointing to these resolutions, ironically, even the petitioner impliedly recognized that they were then already ripe for review on certiorari. What the petitioner should have realized was that its 2nd motion unequivocally aimed to reopen the case for the introduction of further evidence consisting of the Bane deposition. Having been ultimately denied by the court, the petitioner could not have been prevented from taking the proper remedy notwithstanding any perceived ambiguity in the resolutions.
On
the other end, though, there was nothing intrinsically objectionable in the
petitioners motion to reopen its case before the court ruled on its formal
offer of evidence. The Rules of Court does not
prohibit a party from requesting the court to allow it to present additional
evidence even after it has rested its case. Any such opportunity, however, for
the ultimate purpose of the admission of additional evidence is already
addressed to the sound discretion of the court. It is from the prism of the exercise of this
discretion that the Sandiganbayans refusal to reopen the case (for the purpose
of introducing, marking and offering additional evidence) should be
viewed. We can declare this
Sandiganbayan action invalid if it had acted with grave abuse of discretion.
III. The Sandiganbayan gravely abused its
discretion in ultimately refusing to reopen the case for the purpose of
introducing and admitting in evidence the Bane deposition
The basis for a motion to reopen a case to introduce further evidence is Section 5, Rule 30 of the Rules of Court, which reads:
Sec. 5. Order of trial. Subject to the provisions of
section 2 of Rule 31, and unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated in the pre-trial order
and shall proceed as follows:
x x x x
(f) The
parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them
to adduce evidence upon their original case[.] [emphases ours]
Under this rule, a party who has
the burden of proof must introduce, at the first instance, all the evidence he
relies upon[74] and such evidence cannot be given piecemeal.[75] The obvious rationale of the requirement is to avoid
injurious surprises to the other party and the consequent delay in the
administration of justice.[76]
A partys declaration of the completion of the presentation of his evidence prevents him from introducing further evidence;[77] but where the evidence is rebuttal in character, whose necessity, for instance, arose from the shifting of the burden of evidence from one party to the other;[78] or where the evidence sought to be presented is in the nature of newly discovered evidence,[79] the partys right to introduce further evidence must be recognized. Otherwise, the aggrieved party may avail of the remedy of certiorari.
Largely, the exercise of the
courts discretion[80] under the exception of Section 5(f), Rule 30 of the Rules of
Court depends on the attendant facts i.e., on whether the evidence would qualify as a good reason and
be in furtherance of the interest of justice.
For a reviewing court to properly interfere with the lower courts
exercise of discretion, the petitioner must show that the lower courts action was
attended by grave abuse of discretion. Settled
jurisprudence has defined this term as the capricious and whimsical exercise of
judgment, equivalent to lack of jurisdiction; or, the exercise of power in an
arbitrary manner by reason of passion, prejudice, or personal hostility, so
patent or so gross as to amount to an evasion of a positive duty, to a virtual
refusal to perform the mandated duty, or to act at all in contemplation of the law.[81] Grave abuse of
discretion goes beyond the bare and unsupported imputation of caprice,
whimsicality or arbitrariness, and beyond allegations that merely constitute
errors of judgment[82] or mere abuse of discretion.[83]
In Lopez v. Liboro,[84] we had occasion to make the following pronouncement:
After the parties have
produced their respective direct proofs, they are allowed to offer rebutting
evidence only, but, it has been held, the court, for good reasons, in the
furtherance of justice, may permit them to offer evidence upon their original
case, and its ruling will not be disturbed in the appellate court where no
abuse of discretion appears. So, generally, additional evidence is allowed
when it is newly discovered, or where it has been omitted through
inadvertence or mistake, or where the purpose of the evidence is to correct
evidence previously offered. The omission to present evidence on the testator's
knowledge of Spanish had not been deliberate. It was due to a misapprehension
or oversight. (citations omitted; emphases ours)
Likewise, in Director of Lands v. Roman Archbishop of
Manila,[85] we ruled:
The strict rule is that
the plaintiff must try his case out when he commences. Nevertheless, a
relaxation of the rule is permitted in the sound discretion of the court. The
proper rule for the exercise of this discretion, it has been said by an
eminent author, is, that material testimony should not be excluded because
offered by the plaintiff after the defendant has rested, although not in
rebuttal, unless it has been kept back by a trick, and for the purpose of
deceiving the defendant and affecting his case injuriously.
These
principles find their echo in Philippine remedial law. While the general rule
is rightly recognized, the Code of Civil Procedure authorizes the judge for
special reasons, to change the order of the trial, and "for good reason,
in the furtherance of justice," to permit the parties to offer evidence
upon their original case. These exceptions are made stronger when one
considers the character of registration proceedings and the fact that where so
many parties are involved, and action is taken quickly and abruptly, conformity
with precise legal rules should not always be expected. Even at the risk of
violating legal formul, an opportunity should be given to parties to
submit additional corroborative evidence in support of their claims of title,
if the ends of justice so require. (emphases ours)
In his commentaries,
Chief Justice Moran had this to say:
However, the court for good reasons, may, in the
furtherance of justice, permit the parties to offer evidence upon their
original case, and its ruling will not be disturbed where no abuse of discretion
appears, Generally, additional evidence is allowed when x x x; but it
may be properly disallowed where it was withheld deliberately and without
justification.[86]
The weight of the exception is also
recognized in foreign jurisprudence.[87]
Under these guidelines, we hold that the Sandiganbayan
gravely abused its discretion in refusing to reopen the case. Instead of squarely ruling on the petitioners 2nd
motion to avoid any uncertainty on the evidentiary status of the Bane
deposition, the Sandiganbayans action actually left the petitioners concern in
limbo by considering the petitioners motion redundant. This is tantamount to
a refusal to undertake a positive duty as mandated by the circumstances and is
equivalent to an act outside the contemplation of law.
It has not escaped our notice that
at the time the petitioner moved to re-open its case, the respondents had not
yet even presented their evidence in chief. The respondents, therefore, would
not have been prejudiced by allowing the petitioners introduction of the Bane
deposition, which was concededly omitted through oversight.[88] The higher interest
of substantial justice, of course, is another consideration that cannot be
taken lightly.[89]
In light of these circumstances,
the Sandiganbayan should not have perfunctorily applied Section 5, Rule 30 of
the Rules of Court on the petitioners request to reopen the case for the
submission of the Bane deposition.
On the basis of this conclusion, a
remand of this case should follow as a matter of course. The state of the parties submissions and the
delay that has already attended this aspect of Civil Case No. 0009, however,
dictate against this obvious course of action. At this point, the parties have
more than extensively argued for or against the admission of the Bane
deposition. Civil Case No. 0009 is a
25-year old sequestration case that is now crying out for complete resolution. Admissibility, too, is an issue that would
have again been raised on remand and would surely stare us in the face after
remand.[90] We are thus left with no choice but to resolve the issue of
admissibility of the Bane deposition here and now.
IV.
The admissibility of the Bane deposition
IV (a). The consolidation of
Civil Case No. 0009 and Civil Case No. 0130 did not dispense with the usual
requisites of admissibility
In support of its 3rd motion, the petitioner argues that the Bane deposition can be admitted in evidence without observing the provisions of Section 47, Rule 130 of the Rules of Court.[91] The petitioner claims that in light of the prior consolidation of Civil Case No. 0009 and Civil Case No. 0130, among others,[92] the former case or proceeding that Section 47, Rule 130 speaks of no longer exists.
Rule 31 of
the old Rules of Court[93] the rule in effect at the time Civil Case
Nos. 0009 and 0130 were consolidated provided that:
Rule 31
Consolidation or Severance
Section
1. Consolidation. When actions involving a common question of law or fact
are pending before the court, it may order a joint hearing or trial of
any or all the matters in issue in the actions; it may order all
the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.[94] (emphases ours)
Consolidation is a procedural device granted to the court as an aid in deciding how cases in its docket are
to be tried so that the business of the court may be
dispatched expeditiously and with economy while providing justice to the
parties. To promote this end, the rule permits the consolidation and a single
trial of several cases in the courts docket, or the consolidation of issues
within those cases.[95]
A reading of Rule 31 of the Rules of Court
easily lends itself to two observations. First,
Rule 31 is completely silent on
the effect/s of consolidation on the cases consolidated; on the parties and the
causes of action involved; and on the evidence presented in the consolidated
cases. Second, while Rule 31 gives
the court the discretion either to order a joint hearing or trial,
or to order the actions consolidated, jurisprudence will show that the term
consolidation is used generically and even synonymously with joint hearing or
trial of several causes.[96] In fact, the title consolidation of Rule 31
covers all the different senses of consolidation, as discussed below.
These observations are not without practical reason. Considering that consolidation is basically a function given to the court, the latter is in the best position to determine for itself (given the nature of the cases, the complexity of the issues involved, the parties affected, and the courts capability and resources vis--vis all the official business pending before it, among other things) what consolidation will bring, bearing in mind the rights of the parties appearing before it.
To disregard the kind of consolidation effected by the
Sandiganbayan on the simple and convenient premise that the deposition-taking
took place after the Sandiganbayan
ordered the consolidation is to beg the question. It is precisely the
silence of our Rules of Procedure and the dearth of applicable case law on the effect of consolidation that strongly
compel this Court to determine the kind of consolidation effected to directly
resolve the very issue of admissibility in this case.
In the context of legal procedure, the term consolidation is used in three different senses:[97]
(1)
Where all except one of several actions
are stayed until one is tried, in which case the judgment in the one trial is
conclusive as to the others. This is not actually consolidation but is
referred to as such. (quasi-consolidation)[98]
(2)
Where several actions are combined into
one, lose their separate identity, and become a single action in which a single
judgment is rendered. This is illustrated by a situation where several actions
are pending between the same parties stating claims which might have been set
out originally in one complaint. (actual consolidation)[99]
(3)
Where several actions are ordered to be
tried together but each retains its separate character and requires the entry
of a separate judgment. This type of consolidation does not merge the suits
into a single action, or cause the parties to one action to be parties to the
other. (consolidation for trial)[100]
Considering that the Sandiganbayans order[101] to consolidate several incident cases does not at all provide a hint on the extent of the courts exercise of its discretion as to the effects of the consolidation it ordered in view of the function of this procedural device to principally aid the court itself in dealing with its official business we are compelled to look deeper into the voluminous records of the proceedings conducted below. We note that there is nothing that would even suggest that the Sandiganbayan in fact intended a merger of causes of action, parties and evidence.[102] To be sure, there would have been no need for a motion to adopt (which did not remain unopposed) the testimonies in the incident cases had a merger actually resulted from the order of consolidation, for in that case, the Sandiganbayan can already take judicial notice of the same.
Significantly, even the petitioner itself viewed consolidation, at most, to be merely a consolidation for trial.[103] Accordingly, despite the consolidation in 1993, the petitioner acceded to the Sandiganbayans 1998 Resolution (which denied the petitioners 1st Motion on the ground that the witnesses, whose testimony in the incident cases is sought to be adopted, are not available for cross-examination in the Sandiganbayan) by presenting these other witnesses again in the main case, so that the respondents can cross-examine them.
These considerations run counter to the conclusion that the Sandiganbayans order of consolidation had actually resulted in the complete merger of the incident cases with the main case, in the sense of actual consolidation, and that the parties in these consolidated cases had (at least constructively) been aware of and had allowed actual consolidation without objection.[104]
Considering, too, that the consolidated actions were originally independent of one another and the fact that in the present case the party respondents to Civil Case No. 0009 (an action for reconveyance, accounting, restitution and damages) are not parties to Civil Case No. 0130 (a special civil action filed by an ETPI stockholder involving a corporate squabble within ETPI), the conclusion that the Sandiganbayan in fact intended an actual consolidation and, together with the parties affected,[105] acted towards that end - where the actions become fused and unidentifiable from one another and where the evidence appreciated in one action is also appreciated in another action must find support in the proceedings held below. This is particularly true in a case with the magnitude and complexity of the present case. Otherwise, to impose upon the respondents the effects of an actual consolidation (which find no clear support in the provisions of the Rules of Court, jurisprudence,[106] and even in the proceedings before the Sandiganbayan itself and despite the aforementioned considerations) results in an outright deprivation of the petitioners right to due process. We reach this conclusion especially where the evidence sought to be admitted is not simply a testimony taken in one of the several cases, but a deposition upon oral examination taken in another jurisdiction and whose admission is governed by specific provisions on our rules on evidence.
We
stress on this point, too, that while the Sandiganbayan ordered the
consolidation in 1993 (that is, before
the deposition was taken), neither does the Pre-Trial Order[107]
issued by the Sandiganbayan in 1997 in
Civil Case No. 0009 contain any reference, formal or substantive, to Civil Case
No. 0130.[108] Interestingly, in its Pre-Trial Brief dated
IV (b). Use of
deposition under Section 4, Rule 23 and as a former testimony under Section 47,
Rule 130
Since
the present consolidation did not affect Civil Case No. 0130 as an original,
albeit incidental, case, the admissibility of the Bane deposition cannot avoid
being measured against the requirements of Section 47, Rule 130 of the Rules of
Court the rule on the admissibility of testimonies or deposition taken in a
different proceeding. In this regard, the
petitioner argues that Section 4, Rule 23 of the
Rules of Court (then Rule 24)[110]
must, at any rate, prevail over Section 47, Rule 130[111]
of the same Rules.
At
the outset, we note that when the petitioners motion to adopt the testimonies taken
in the incident cases drew individual oppositions from the respondents, the
petitioner represented to the Sandiganbayan its willingness to comply with the
provisions of Section 47, Rule 130 of the Rules of Court,[112] and,
in fact, again presented some of the witnesses. The petitioners about-face two
years thereafter even contributed to the Sandiganbayans own inconsistency on
how to treat the Bane deposition, in particular, as evidence.
Section 4, Rule 23 of the Rules of Court on Deposition Pending Action (deposition de bene esse) provides for the circumstances when depositions may be used in the trial, or at the hearing of a motion or an interlocutory proceeding.
SEC. 4. Use of
depositions. At the trial or
upon the hearing of a motion or an interlocutory proceeding, any part or all of
a deposition, so far as admissible under the rules of evidence, may be
used against any party who was present or represented at the taking of the
deposition or who had due notice thereof, in accordance with any one of the
following provisions:
x x x x
(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 resides at a distance more than one hundred (100) kilometers from the
place of trial or hearing, or is out of the Philippines, unless it appears that
his absence was procured by the party offering the deposition; or (3) that the
witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or (4) that the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or (5) upon application and
notice, that such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used[.] [emphasis ours]
On the other hand, Section 47, Rule 130 of the Rules of Court provides:
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.
A plain reading of Rule 23 of the Rules
of Court readily rejects the petitioners position that the Bane deposition can
be admitted into evidence without observing the requirements of Section 47,
Rule 130 of the Rules of Court.
Before a party can make use of
the deposition taken at the trial of a pending action, Section 4, Rule 23 of
the Rules of Court does not only require due observance of its sub-paragraphs
(a) to (d); it also requires, as a condition for admissibility, compliance with
the rules on evidence. Thus, even Section 4, Rule 23 of the Rules
of Court makes an implied reference to Section 47, Rule 130 of the Rules of Court before the
deposition may be used in evidence.
By reading Rule 23 in isolation, the petitioner failed to recognize that the
principle conceding admissibility to a deposition under Rule 23 should be
consistent with the rules on evidence under Section 47, Rule 130.[113] In determining the admissibility of the Bane deposition,
therefore, reliance cannot be given on one provision to the exclusion of the
other; both provisions must be considered. This is particularly true in this case where
the evidence in the prior proceeding does not simply refer to a witness
testimony in open court but to a deposition taken under another and farther jurisdiction.
A common thread that runs from Section 4, Rule 23 of the Rules of Court and Section 47, Rule 130 of the same Rules is their mutual reference to depositions.
A deposition is chiefly a mode of discovery whose primary function is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial.[114] Since depositions are principally made available to the parties as a means of informing themselves of all the relevant facts, depositions are not meant as substitute for the actual testimony in open court of a party or witness. Generally, the deponent must be presented for oral examination in open court at the trial or hearing. This is a requirement of the rules on evidence under Section 1, Rule 132 of the Rules of Court.[115]
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 set forth therein, in lieu of the actual oral testimony of the deponent in open court, may be opposed by the adverse party and excluded under the hearsay rule i.e., that the adverse party had or has no opportunity to cross-examine the deponent at the time that his testimony is offered. That opportunity for cross-examination was afforded during the taking of the deposition alone is no argument, as the opportunity for cross-examination must normally be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing of a case.[116] However, under certain conditions and for certain limited purposes laid down in Section 4, Rule 23 of the Rules of Court, the deposition may be used without the deponent being actually called to the witness stand.[117]
Section 47, Rule 130 of the Rules of Court is an entirely different provision. While a former testimony or deposition appears under the Exceptions to the Hearsay Rule, the classification of former testimony or deposition as an admissible hearsay is not universally conceded.[118] A fundamental characteristic of hearsay evidence is the adverse partys lack of opportunity to cross-examine the out-of-court declarant. However, Section 47, Rule 130 explicitly requires, inter alia, for the admissibility of a former testimony or deposition that the adverse party must have had an opportunity to cross-examine the witness or the deponent in the prior proceeding.
This opportunity to cross-examine
though is not the ordinary cross-examination[119]
afforded an adverse party in usual trials regarding matters stated in the
direct examination or connected therewith. Section 47, Rule 130 of the Rules
of Court contemplates a different kind of cross-examination, whether actual or
a mere opportunity, whose adequacy depends on the
requisite identity of issues in the former case or proceeding and in the
present case where the former testimony or deposition is sought to be
introduced.
Section 47, Rule 130 requires that the issues involved in
both cases must, at least, be substantially the same; otherwise, there is no
basis in saying that the former statement was - or would have been -
sufficiently tested by cross-examination or by an opportunity to do so.[120] (The
requirement of similarity though does not mean that all the issues in the two
proceedings should be the same.[121]
Although some issues may not be the same in the two actions, the admissibility
of a former testimony on an issue which is similar in both actions cannot be
questioned.[122])
These considerations, among others, make Section 47, Rule 130 a distinct rule on evidence and therefore should not be confused with the general provisions on deposition under Rule 23 of the Rules of Court. In other words, even if the petitioner complies with Rule 23 of the Rules of Court on the use of depositions, the observance of Section 47, Rule 130 of the Rules of Court cannot simply be avoided or disregarded.
Undisputably, the Sandiganbayan relied on the Bane
deposition, taken in Civil Case No. 0130, for purposes of this very same case. Thus,
what the petitioner established and what the Sandiganbayan found, for
purposes of using the Bane deposition, refer only to the circumstances laid down
under Section 4(c), Rule 23 of the Rules of Court, not necessarily to those of Section
47, Rule 130 of the Rules of Court, as a distinct rule on evidence that imposes
further requirements in the use of depositions in a different case or
proceeding. In other words, the prior
use of the deposition under Section 4(c), Rule 23 cannot be taken as compliance
with Section 47, Rule 130 which considers the same deposition as hearsay,
unless the requisites for its admission under this rule are observed. The
aching question is whether the petitioner complied with the latter rule.
Section 47, Rule 130 of the Rules of Court lays down the following requisites for the admission of a testimony or deposition given at a former case or proceeding.
1. The testimony or deposition of a witness deceased or
otherwise unable to testify;
2. The testimony was given in a former case or
proceeding, judicial or administrative;
3. Involving the same parties;
4. Relating to the same matter;
5. The adverse party having had the opportunity to
cross-examine him.[123]
The reasons for the admissibility of testimony or
deposition taken at a former trial or proceeding are the necessity for the
testimony and its trustworthiness.[124] However, before the former testimony or
deposition can be introduced in evidence, the proponent must first lay
the proper predicate therefor,[125] i.e., the party must establish the basis
for the admission of the Bane deposition in the realm of admissible evidence. This basis is the prior issue that we must
now examine and resolve.
IV (c).
Unavailability of witness
For the admission of a former
testimony or deposition, Section 47, Rule 130 of the Rules of Court simply
requires, inter alia, that the witness or deponent be deceased or
unable to testify. On the other hand, in using a deposition that was taken
during the pendency of an action,
Section 4, Rule 23 of the Rules of Court provides several grounds that will
justify dispensing with the actual testimony of the deponent in open court and
specifies, inter alia, the circumstances of the deponents inability to
attend or testify, as follows:
(3) that the witness is unable to attend or testify
because of age, sickness, infirmity, or imprisonment[.] [emphases ours][126]
The
phrase unable to testify appearing in both Rule 23 and Rule 130 of the Rules
of Court refers to a physical inability to appear at the witness stand and to
give a testimony.[127]
Hence notwithstanding the deletion of the phrase out of the
Although the testimony of a witness has been given in the
course of a former proceeding between the parties to a case on trial, this
testimony alone is not a ground for its admission in evidence. The witness
himself, if available, must be produced in court as if he were testifying de
novo since his testimony given at the former trial is mere hearsay.[130]
The deposition of a witness, otherwise available, is also inadmissible for the
same reason.
Indeed, the Sandiganbayans reliance on the Bane deposition
in the other case (Civil Case No. 0130) is an argument in favor of the
requisite unavailability of the witness. For purposes of the present case
(Civil Case No. 0009), however, the Sandiganbayan would have no basis to
presume, and neither can or should we, that the previous condition, which
previously allowed the use of the deposition, remains and would thereby justify
the use of the same deposition in another case or proceeding, even if the
other case or proceeding is before the same court. Since the basis for the
admission of the Bane deposition, in principle, being necessity,[131]
the burden of establishing its existence rests on the party who seeks the
admission of the evidence. This burden cannot be supplanted by assuming the continuity of the
previous condition or conditions in light of the general rule against the
non-presentation of the deponent in court.[132]
IV (d). The requirement of opportunity of the adverse
party to cross-examine; identity of parties; and identity of subject matter
The function of cross-examination is to test the truthfulness of the statements of a witness made on direct examination.[133] The opportunity of cross-examination has been regarded as an essential safeguard of the accuracy and completeness of a testimony. In civil cases, the right of cross-examination is absolute, and is not a mere privilege of the party against whom a witness may be called.[134] This right is available, of course, at the taking of depositions, as well as on the examination of witnesses at the trial. The principal justification for the general exclusion of hearsay statements and for the admission, as an exception to the hearsay rule, of reported testimony taken at a former hearing where the present adversary was afforded the opportunity to cross-examine, is based on the premise that the opportunity of cross-examination is an essential safeguard[135] against falsehoods and frauds.
In resolving the question of whether the requirement of opportunity to cross-examine has been satisfied, we have to consider first the required identity of parties as the present opponent to the admission of the Bane deposition to whom the opportunity to cross-examine the deponent is imputed may not after all be the same adverse party who actually had such opportunity.
To render the testimony of a witness admissible at a later trial or action, the parties to the first proceeding must be the same as the parties to the later proceeding. Physical identity, however, is not required; substantial identity[136] or identity of interests[137] suffices, as where the subsequent proceeding is between persons who represent the parties to the prior proceeding by privity in law, in blood, or in estate. The term privity denotes mutual or successive relationships to the same rights of property.[138]
In
the present case, the petitioner failed to impute, much less establish, the
identity of interest or privity between the then opponent,
IV (d1). The respondents notice of
taking of Bane deposition is insufficient evidence of waiver
The petitioner staunchly asserts that the respondents have
waived their right to cross-examine the deponent for their failure to appear at
the deposition-taking despite individual notices previously sent to them.[140]
In
its first Notice to Take Oral Deposition
of Mr. Maurice V. Bane dated
The
records show that
It must be emphasized that even under Rule 23, the admission of the deposition upon oral examination is not simply based on the fact of prior notice on the individual sought to be bound thereby. In Northwest Airlines v. Cruz, [146] we ruled that -
The
provision explicitly vesting in the court the power to order that the
deposition shall not be taken connotes the authority to exercise discretion on
the matter. However, the discretion conferred by law is not unlimited. It must
be exercised, not arbitrarily or oppressively, but in a reasonable manner and
in consonance with the spirit of he law. The
courts should always see to it that the safeguards for the protection of the
parties and deponents are firmly maintained. As aptly stated by Chief
Justice Moran:
. . . . (T)his 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 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. (emphasis
ours)
In the present case, not only did the Sandiganbayan fail to rule on respondent Enriles Opposition (which is equally applicable to his co-respondents), it also failed to provide even the bare minimum safeguards for the protection of, (more so) non-parties,[147] and to ensure that these safeguards are firmly maintained. Instead, the Sandiganbayan simply bought the petitioners assertion (that the taking of Bane deposition is a matter of right) and treated the lingering concerns e.g., reasonability of the notice; and the non-party status of the respondents in Civil Case No. 0130 - at whose incident (docketed as G.R. No. 107789) the Bane deposition was taken - rather perfunctorily to the prejudice of the respondents.
In
conjunction with the order of consolidation, the petitioners reliance on the
prior notice on the respondents, as adequate opportunity for cross-examination,
cannot override the non-party status
of the respondents in Civil Case No. 0130 the effect of consolidation being merely
for trial. As non-parties, they cannot be bound by proceedings in that
case. Specifically, they cannot be bound by the taking of the Bane
deposition without the consequent impairment of their right of
cross-examination.[148] Opportunity for cross-examination, too, even assuming its presence, cannot be
singled out as basis for the admissibility of a former testimony or
deposition since such admissibility is also anchored on the requisite
identity of parties. To reiterate, although the Sandiganbayan considered the
Bane deposition in resolving Civil Case No. 0130, its action was premised on
Corollarily, the idea of privity also permeates Rule 23 of the Rules of Court through its Section 5 which provides:
Effect of substitution of parties. Substitution of parties does not affect the right to
use depositions previously taken; and, when an action has been dismissed and
another action involving the same subject is afterward brought between the
same parties or their representatives or successors in interest,
all depositions lawfully taken and duly filed in the former action may be used
in the latter as if originally taken therefor. [italics and underscoring ours]
In light of these considerations, we reject the petitioners claim that the respondents waived their right to cross-examination when they failed to attend the taking of the Bane deposition. Incidentally, the respondents vigorous insistence on their right to cross-examine the deponent speaks loudly that they never intended any waiver of this right.
Interestingly,
the petitioners notice of the deposition-taking relied on Rule 23 of the Rules
of Court. Section 15 of this rule reads:
Deposition upon oral
examination; notice; time and place. A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other party to the action. The notice shall
state 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. On motion of any party upon whom the notice is served, the
court may for cause shown enlarge or shorten the time.
Under this provision, we do not believe that the petitioner could reasonably expect that the individual notices it sent to the respondents would be sufficient to bind them to the conduct of the then opponents (Africas) cross-examination since, to begin with, they were not even parties to the action. Additionally, we observe that in the notice of the deposition taking, conspicuously absent was any indication sufficient to forewarn the notified persons that their inexcusable failure to appear at the deposition taking would amount to a waiver of their right of cross-examination, without prejudice to the right of the respondents to raise their objections at the appropriate time.[149] We would be treading on dangerous grounds indeed were we to hold that one not a party to an action, and neither in privity nor in substantial identity of interest with any of the parties in the same action, can be bound by the action or omission of the latter, by the mere expedient of a notice. Thus, we cannot simply deduce a resultant waiver from the respondents mere failure to attend the deposition-taking despite notice sent by the petitioner.
Lastly,
we see no reason why the Bane deposition could not have been taken earlier in
Civil Case No. 0009 the principal action where it was sought to be
introduced while Bane was still here in the Philippines. We note in this
regard that the
After failing to take Banes deposition in 1991 and in view of the peculiar circumstances of this case, the least that the petitioner could have done was to move for the taking of the Bane deposition and proceed with the deposition immediately upon securing a favorable ruling thereon. On that occasion, where the respondents would have a chance to be heard, the respondents cannot avoid a resultant waiver of their right of cross-examination if they still fail to appear at the deposition-taking. Fundamental fairness dictates this course of action. It must be stressed that not only were the respondents non-parties to Civil Case No. 0130, they likewise have no interest in Africas certiorari petition asserting his right as an ETPI stockholder.
Setting
aside the petitioners flip-flopping on its own representations,[151]
this Court can only express dismay on why the petitioner had to let Bane leave
the
V. The petitioner cannot rely on principle of
judicial notice
The petitioner also claims that since the Bane deposition
had already been previously introduced and admitted in Civil Case No. 0130,
then the Sandiganbayan should have taken judicial notice of the Bane deposition
as part of its evidence.
Judicial notice is the cognizance of certain facts that
judges may properly take and act on without proof because these facts are
already known to them.[152]
Put differently, it is the assumption by a court of a fact without need of
further traditional evidentiary support. The principle is based on convenience
and expediency in securing and introducing evidence on matters which are not
ordinarily capable of dispute and are not bona fide disputed.[153]
The foundation for judicial notice may be traced to the civil and canon law maxim, manifesta (or notoria) non indigent probatione.[154] The taking of judicial notice means that the court will dispense with the traditional form of presentation of evidence. In so doing, the court assumes that the matter is so notorious that it would not be disputed.
The concept of judicial notice is embodied in Rule 129 of
the Revised Rules on Evidence. Rule 129 either requires the court to take
judicial notice, inter alia, of the official acts of the x x x
judicial departments of the
In adjudicating a case on trial, generally, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding that both cases may have been tried or are actually pending before the same judge.[158] This rule though admits of exceptions.
As a matter of convenience to all the parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of, and absent an objection from, the adverse party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives at the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending.[159]
Courts must also take judicial notice of the records of another case or cases, where sufficient basis exists in the records of the case before it, warranting the dismissal of the latter case.[160]
The issue before us does not involve the applicability of the rule on mandatory taking of judicial notice; neither is the applicability of the rule on discretionary taking of judicial notice seriously pursued. Rather, the petitioner approaches the concept of judicial notice from a genealogical perspective of treating whatever evidence offered in any of the children cases Civil Case 0130 as evidence in the parent case Civil Case 0009 - or of the whole family of cases.[161] To the petitioner, the supposed relationship of these cases warrants the taking of judicial notice.
We strongly disagree. First, the supporting cases[162] the petitioner cited are inapplicable either because these cases involve only a single proceeding or an exception to the rule, which proscribes the courts from taking judicial notice of the contents of the records of other cases.[163] Second, the petitioners proposition is obviously obnoxious to a system of orderly procedure. The petitioner itself admits that the present case has generated a lot of cases, which, in all likelihood, involve issues of varying complexity. If we follow the logic of the petitioners argument, we would be espousing judicial confusion by indiscriminately allowing the admission of evidence in one case, which was presumably found competent and relevant in another case, simply based on the supposed lineage of the cases. It is the duty of the petitioner, as a party-litigant, to properly lay before the court the evidence it relies upon in support of the relief it seeks, instead of imposing that same duty on the court. We invite the petitioners attention to our prefatory pronouncement in Lopez v. Sandiganbayan:[164]
Down the oft-trodden
path in our judicial system, by common sense, tradition and the law, the Judge
in trying a case sees only with judicial eyes as he ought to know nothing about
the facts of the case, except those which have been adduced judicially in
evidence. Thus, when the case is up for trial, the judicial head is empty as to
facts involved and it is incumbent upon the litigants to the action to
establish by evidence the facts upon which they rely. (emphasis ours)
We therefore refuse, in the strongest terms, to entertain the
petitioners argument that we should take judicial notice of the Bane
deposition.
VI. Summation
To recapitulate, we hold that: (1) the Sandiganbayans denial of the petitioners 3rd
motion the Motion to Admit Supplemental Offer of Evidence (Re:
Deposition of Maurice Bane) was
a legal error that did not amount to grave
abuse of discretion; (2) the
Sandiganbayans refusal to reopen the case at the petitioners instance was
tainted with grave abuse of discretion; and (3) notwithstanding the grave abuse of discretion, the petition must ultimately fail as
the Bane deposition is not admissible under the rules of evidence.[165]
VII. Refutation
of Justice Carpios Last Minute Modified Dissent
At the last
minute, Justice Carpio circulated a modified dissent, quoting the Bane deposition.
His covering note states:
I have revised my dissenting opinion to
include the Bane deposition so that the Court and the public will understand
what the Bane deposition is all about. (underlining added)
In light of
this thrust, a discussion refuting the modified dissent is in order.
First: Contents of the Bane deposition not an Issue. The dissent
perfectly identified what is at issue in this case i.e., the admissibility of the Bane
deposition. Admissibility is concerned with the competence and relevance[166]
of the evidence, whose admission is sought. While the dissent quoted at length
the Bane deposition, it may not be amiss to point out that the relevance of the Bane deposition (or, to adopt the dissents
characterization, whether Maurice V. Bane is a vital witness) is not
an issue here unless it can be established first
that the Bane deposition is a competent evidence.
Second:
Misrepresentation of Cited Authority.
The dissent insists that in Philippine Jurisprudence, the consolidation of
cases merges the different actions into one and the rights of the parties are
adjudicated in a single judgment, citing Vicente J. Francisco. In our
discussion on consolidation, we footnoted the following in response to the
dissents position, which we will restate here for emphasis:
In the 1966 edition of Vicente J. Franciscos Revised
Rules of Court, Francisco wrote:
The effect of consolidation of actions is to unite and
merge all of the different actions consolidated into a single action, in the
same manner as if the different causes of actions involved had originally been
joined in a single action, and the order of consolidation, if made by a court
of competent jurisdiction, is binding upon all the parties to the different
actions until it is vacated or set aside. After the consolidation there can be
no further proceedings in the separate actions, which are by virtue of the
consolidation discontinued and superseded by a single action, which should be
entitled in such manner as the court may direct, and all subsequent proceedings
therein be conducted and the rights of the parties adjudicated in a single
action (1 C.J.S., 113, pp. 1371-1372).
At the very beginning of the discussion on
consolidation of actions in the Corpus
Juris Secundum, the following caveat appears:
The term consolidation is used in three different
senses. First, where several actions are combined into one and lose their
separate identity and become a single action in which a single judgment is
rendered; second, where all except one of several actions are stayed until one
is tried, in which case the judgment in the one is conclusive as to the others;
third, where several actions are ordered to be tried together but each retains
its separate character and requires the entry of a separate judgment. The failure to distinguish between these
methods of procedure, which are entirely distinct, the two latter, strictly
speaking, not being consolidation, a fact which has not always been noted, has
caused some confusion and conflict in the cases. (1 C.J.S., 107, pp.
1341-1342) (Emphasis added).
In defining the term consolidation of actions, Francisco provided a colatilla that the
term consolidation is used in three different senses, citing 1 C.J.S.
1341 and 1 Am. Jur. 477 (Francisco, Revised
Rules of Court, p. 348).
From the foregoing, it is clear that the dissent appears to
have quoted Franciscos statement out of context. As it is, the issue of the
effect of consolidation on evidence is at most an unsettled matter that requires
the approach we did in the majoritys discussion on consolidation.[167]
Third:
Misappreciation of the Purpose of Consolidation.
The dissent then turns to the purpose of consolidation to expeditiously
settle the interwoven issues involved in the consolidated cases and the
simplification of the proceedings. It argues that this can only be achieved if
the repetition of the same evidence is dispensed with.
It is unfortunate that the dissent refuses to recognize the fact that since consolidation is primarily addressed to the court concerned to aid it in dispatching its official business, it would be in keeping with the orderly trial procedure if the court should have a say on what consolidation would actually bring[168] (especially where several cases are involved which have become relatively complex). In the present case, there is nothing in the proceedings below that would suggest that the Sandiganbayan or the parties themselves (the petitioner and the respondents) had in mind a consolidation beyond joint hearing or trial. Why should this Court which is not a trial court impose a purported effect that has no factual or legal grounds?
Fourth: The Due Process Consideration. The dissent argues that even if the consolidation only
resulted in a joint hearing or trial, the respondents are still bound by the
Bane deposition considering that they were given notice of the
deposition-taking. The issue here boils
down to one of due process the fundamental reason why a hearsay statement
(not subjected to the rigor of cross-examination) is generally excluded in the realm
of admissible evidence especially when
read in light of the general rule that
depositions are not meant as substitute for the actual testimony, in open court,
of a party or witness.
Respondent Enrile had a pending Opposition to the notice of deposition-taking (questioning the reasonableness thereof an issue applicable to the rest of the respondents) which the Sandiganbayan failed to rule on. To make the Sandiganbayans omission worse, the Sandiganbayan blindly relied on the petitioners assertion that the deposition-taking was a matter of right and, thus, failed to address the consequences and/or issues that may arise from the apparently innocuous statement of the petitioner (that it intends to use the Bane deposition in Civil Case No. 0009, where only the respondents, and not Africa, are the parties).[169] There is simply the absence of due in due process.
Fifth: Misstatement of the Sandiganbayans Action. The dissent repeatedly misstates that the Sandiganbayan granted the request for the deposition-taking. For emphasis, the Sandiganbayan did not grant the request since the petitioner staunchly asserted that the deposition-taking was a matter of right. No one can deny the complexity of the issues that these consolidated cases have reached. Considering the consolidation of cases of this nature, the most minimum of fairness demands upon the petitioner to move for the taking of the Bane deposition and for the Sandiganbayan to make a ruling thereon (including the opposition filed by respondent Enrile which equally applies to his co-respondents). The burgeoning omission and failures that have prevailed in this case cannot be cured by this Court without itself being guilty of violating the constitutional guarantee of due process.
Sixth: Issues Posed and Resolved Go Beyond Technicalities. The above
conclusions, contrary to the petitioners claim, are not only matters of
technicality. Admittedly, rules of
procedure involve technicality, to which we have applied the liberality that
technical rules deserve. But the resolution
of the issues raised goes beyond pure or mere technicalities as the preceding
discussions show. They involve issues of due process and basic unfairness to
the respondents, particularly to respondent Enrile, who is portrayed in the
Bane deposition to be acting in behalf of the Marcoses so that these shares
should be deemed to be those of the Marcoses. They involved, too, principles
upon which our rules of procedure are founded and which we cannot disregard
without flirting with the violation of guaranteed substantive rights and
without risking the disorder that these rules have sought to avert in the
course of their evolution.
In the Court En Banc
deliberations of December 6, 2011, the Court failed to arrive at a conclusive
decision because of a tie vote (7-7, with one Justice taking no part). The same
vote resulted in the re-voting of
WHEREFORE, premises considered, we DISMISS the petition for lack of merit. No costs.
SO
ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate
Justice
|
PRESBITERO J.
VELASCO, JR. Associate Justice |
|
TERESITA J. LEONARDO-DE CASTRO Associate
Justice
|
DIOSDADO M.
PERALTA Associate
Justice
|
|
LUCAS P.
BERSAMIN Associate
Justice
|
MARIANO C. Associate
Justice
|
|
ROBERTO A. ABAD Associate Justice |
MARTIN S.
VILLARAMA, JR. Associate Justice |
|
JOSE Associate
Justice
|
JOSE CATRAL Associate
Justice
|
|
MARIA
LOURDES P. A. SERENO Associate Justice |
BIENVENIDO
L. REYES Associate Justice |
ESTELA M. PERLAS-BERNABE
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice
[1] Under Rule 65 of the Rules of Court.
[2] Penned by Associate Justice Rodolfo G. Palattao, and concurred in by Associate Justices Narciso S. Nario and Nicodemo T. Ferrer; rollo, pp. 60-67.
[3] Fourth Division.
[4] Petitioners Motion to Admit Supplemental Offer of Evidence and Comment/Opposition Ad Cautelam; rollo, pp. 370-371.
[5]
[6] Petitioners Reply; id. at 744-745.
[7] Entitled Victor Africa v. Presidential Commission on Good Government.
[8]
[9]
[10]
[11]
[12]
[13] Resolved by this Court on
[14] Republic of the Phils. v. Sandiganbayan, supra note 8.
[15] Rollo, p. 304. The other incident cases which were consolidated with the main case are as follows:
1. Civil Case No. 0043 (Polygon Investors and Managers, Inc. v. PCGG) a complaint praying that judgment be rendered enjoining the PCGG, its commissioners, officers, employees, agents and/or representatives from enforcing and/or implementing a writ of sequestration.
2.
Civil Case No. 0044 (Aerocom Investors and Managers, Inc. v. PCGG) a complaint praying
that the Writ of Sequestration dated
3. Civil Case No. 0045 (Africa v. PCGG) an amended complaint praying that judgment be rendered restraining (a) defendant Eduardo M. Villanueva from representing himself and acting as Director, President and/or General Manager of ETPI and committing or continuing to exercise the power, authority and functions appertaining to such office; and (b) defendant PCGG from directly or indirectly interfering with the management of ETPI.
4.
Civil Case No. 0047 (
5.
Civil Case No. 0131 (Traders Royal Bank v. PCGG,
6. Civil Case No. 0139 (Far East Bank and Trust Company v. PCGG, Africa, et al.) a complaint praying that defendants be directed to interplead and litigate their respective claims on the proceeds of the deposit accounts maintained with plaintiff and that judgment be accordingly rendered.
7. Civil Case No. 0143 (Standard Chartered Bank v. PCGG, Africa, Nieto, et al.) a complaint praying that judgment be rendered requiring all the defendants to interplead among themselves and litigate to determine who are the legitimate signatories of OWNI in its accounts with the plaintiff.
8. Civil Case No. 0128 (Traders Royal Bank v. PCGG) a complaint praying that defendants be directed to interplead and litigate their conflicting claims between them, and that judgment be rendered accordingly.
9. Civil Case No. 0106 (Domestic Satellite Philippines, Inc. v. PCGG and Asset Privatization Trust) a petition praying that PCGG be ordered to withdraw its objection to the alleged settlement agreed upon between DOMSAT and APT.
10. Civil Case No. 0114 (PHILCOMSAT and POTC v. PCGG) a complaint seeking to declare as null and void the writs of sequestration issued by PCGG over plaintiffs-corporations and to enjoin PCGG and its officers, agents, and nominees from interfering with the management and operations of the plaintiffs-corporations. (Records, Volume III, pp. 451-452; 841-843.)
[16] Resolution dated
[17] Ibid.
[18] Petitioner sent to the respondents a Notice to Take Oral Deposition of Mr. Maurice V. Bane dated
The right to take deposition de bene esse is a precautionary privilege to prevent [the] loss of evidence in the event the attendance of the witness at the trial cannot be procured. Hence, Section 1, Rule 24 of the Revised Rules of Court, specifically grants the plaintiff the right to depose Mr. Maurice Bane without leave of court. x x x.
It should moreover be noted that
Mr. Maurice Bane, who resides in
[19] Rollo, pp. 292-297.
[20]
[21]
[22]
[23] Republic of the Phils. v. Sandiganbayan, supra note 8, at 109.
[24] Resolved by this Court on
[25] Sandiganbayan Third Division Pre-Trial Order dated
[26] Records, Volume XXXVI, p. 11405.
[27] Dated
[28] Civil Case Nos. 0048, 0050 and 0146 were ordered consolidated with Civil Case No. 0009 by the Court in Africa v. PCGG, G.R. Nos. 83831, 85594, 85597, and 85621, January 9, 1992, 205 SCRA 38.
[29] Records, Volume XLIV, pp. 278-282 and 497-500; Volume XLV, pp. 3-6 and 22-26.
[30] Dated
[31] Fourth Division.
[32] Penned by Associate Justice Sabino R. de Leon, Jr., and concurred in by Associate Justices Narciso S. Nario and Teresita J. Leonardo-de Castro (now a Member of this Court); rollo, pp. 331-338.
[33]
[34]
[35] Penned by Associate Justice Rodolfo G. Palattao, and concurred in by Associate Justices Narciso S. Nario and Nicodemo T. Ferrer; id. at 352-355.
[36]
[37]
[38]
[39] The Sandiganbayan (Fourth Division) promulgated on
[40] Supra note 2.
[41] Represented by the Office of the Solicitor General. While this case was pending, then Chief Presidential Legal Counsel Eduardo Antonio Nachura was appointed Solicitor General, formerly a Member of this Court.
[42] Rollo, p. 28, citing People v. MTC of Quezon City, 333 Phil. 500 (1996).
[43]
[44] In his Manifestation, respondent Ferdinand R. Marcos, Jr. stated that he was adopting the Comment of respondent Nieto; id. at 856-857. On the other hand, respondent Juan Ponce Enrile and the substituted heirs of respondent Jose Africa merely reiterated the arguments advanced by respondent Nieto.
[45]
[46] Section 4, Rule 65 of the Rules of Court reads:
When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.
[47] Respondent Nietos Comment, citing GSIS v. CA, 334 Phil. 163 (1997); rollo, p. 490.
[48] Respondent Nietos Comment, citing Vicente J. Francisco, The Revised Rules of Court in the Philippines, p. 338; id. at 489.
[49]
[50] Petitioners Reply (to Nietos Comment), citing Regalado, Remedial Law Compendium, p. 582, 2001 ed.; id. at 522.
[51] Raymundo
v. Isagon Vda. de Suarez, G.R. No. 149017,
[52] Investments, Inc. v. Court of Appeals, 231 Phil. 302 (1987), cited in Denso (Phils.), Inc. v. Intermediate Appellate Court, 232 Phil. 256 (1987).
[53] Rudecon Management Corp. v. Singson, 494 Phil. 581 (2005).
[54] Tomacruz-Lactao
v. Espejo, 478 Phil. 755 (2004).
[55]
Jose Y. Feria and Maria Concepcion
Noche, 2 Civil
Procedure Annotated, 2001 ed., pp. 151-152, citing Manila Electric
Co. v. Artiaga and Green, 50 Phil. 144, 147 (1927). This proceeds from the
court's inherent power to control its process and orders so as to make them
conformable to law and justice. The only limitation is that the judge cannot
act with grave abuse of discretion, or that no injustice results thereby (Bangko
Silangan Development Bank v. Court of Appeals, 412 Phil. 755 [2001]).
[56] Rule 41, Section 1 of the Rules of Court reads:
Subject
of appeal. An appeal may be
taken from a judgment or final order that completely disposes of the case, or
of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
x x x x
(c)
An interlocutory order;
x x x x
In all the above instances where the judgment or final
order is not appealable, the aggrieved party may file an appropriate special
civil action under Rule 65.
[57] Rollo, p. 31, citing Philgreen Trading Construction Corp. v. Court of Appeals, 338 Phil. 433 (1997).
[58]
[59]
[60]
When a deposition is presented at trial
and admitted by the court, it is competent evidence for the party in whose
behalf it was taken, although it may not have been actually read when
introduced in evidence. (Vicente J. Francisco, 2 The Revised Rules of Court
in the Philippines, p. 127, 1966,
citing Baron v. David, 51 Phil. 1 [1927].)
[61] Section 34, Rule 132 of the Rules of Court reads:
Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.
[62] Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010, 615 SCRA 619, 633, citing Dueas, Jr. v. House of Representatives Electoral Tribunal, G.R. No. 185401, July 21, 2009, 593 SCRA 316, 344.
[63] Republic of the
[64] Section 6, Rule 18 of the Rules of Court requires the parties to state in their respective Pre-Trial Briefs the following:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (emphases added)
[65] Section 1,
Rule 131 of the Rules of Court reads:
Burden of proof. Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (emphasis added)
[66] See Manuel V. Moran, 2 Comments on
the Rules of Court, 1996 ed., p. 140.
[67] Section 1, Rule 33 of the Rules of Court reads:
Demurrer to evidence. After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (emphasis added)
[68] Petitioners Urgent Motion and/or Request for Judicial Notice, p. 3; rollo, p. 341.
[69] Petitioners Motion to Admit Supplemental Offer of Evidence, p. 6; id. at 365.
[70] Section 4, Rule 129 of the Rules of Court reads:
Judicial admissions. An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.
[71] In page 6 of the petitioners Motion to Admit Supplemental Offer of Evidence, the petitioner admitted the termination of the presentation of its evidence; yet, in page 4 of the petitioners Reply (to respondent Nietos opposition to petitioners Motion to Admit Supplemental Offer of Evidence), the petitioner stated that it has not yet rested its case.
[72] Dated
[73] Rollo, pp. 31 and 34.
[74] James M. Henderson, 6 Commentaries on the Law of Evidence in Civil Cases Based Upon the Works of Burr W. Jones, 2502, pp. 4950-4951.
[75]
Director of Lands v. Roman Archbishop
of
[76]
Ibid.
[77] John Henry Wigmore, 6 A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 1940, p. 519.
[78]
Director of Lands v. Roman Archbishop
of
[79]
Seares v. Hernando, etc., et al., 196 Phil. 487 (1981).
[80] 88 C.J.S. 104, p. 217; 5A C.J.S. 1606, p. 102; and Lopez v. Liboro, 81 Phil. 431 (1948).
[81] Land Bank of the
[82] San
Fernando Rural Bank, Inc. v. Pampanga Omnibus Development Corporation, G.R. No.
168088, April 4, 2007, 520 SCRA 564.
[83] Leviste v. Court of Appeals, supra note 62.
[84] Supra note 80, at 434.
[85] Supra note 75, at 124.
[86] Manuel V. Moran, supra note 66, at 141, citing 64 C.J. 160-163.
[87] In Hampson
v. Taylor (8 A. 331, 23 A.
732, 15 R.I. 83,
We
are of the opinion that it was entirely within the discretion of the court to
open the case for further testimony. The counsel for the plaintiff says, in
excuse for the omission, that it was conceded at the former trial, without
contest, that the place of the accident was a part of the public highway, and
he was thus put off his guard. It is quite common for the court to allow a
party to submit further testimony, after he has rested, when his opponent attempts
to take advantage of some formal point which has been inadvertently overlooked,
since it is or ought to be the aim of the court, in ordering the course of
proof, to further, not to defeat the ends of justice.
[88] Rollo, p. 18.
[89] Republic of the
[90] In W. W. Dearing v. Fred Wilson & Co., Inc., 187 Phil. 488, 493-494 (1980), we held:
Anent grave
abuse of discretion, in Icutanim v. Hernandez, x x x it was held that appeal
and not certiorari, is the proper remedy for the correction of any error as to
the competency of a witness committed by an inferior court in the course of
trial, since such a situation involves an error of law constituting a violation
of the rules of evidence, apart from the fact that to allow any special
civil action under the circumstances would lead to multiplicity of suits and
lead to protracted if not endless trials. Similarly and for the same
reasons, that rule would apply to the admission or rejection of a deposition
being offered as evidence. 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. Again, the reason for this rule [is that] the procedure
for the taking of depositions whether oral or thru written interrogatories is
outlined in the rules leaving no discretion to the Court to adopt any other not
substantially equivalent thereto. Should the judge substantially deviate from
what the rule prescribes, he commits a legal error, not an abuse of discretion.
(citation omitted; emphases and underscoring ours)
[91] Petitioners Reply to the Opposition (filed by the substituted heirs of respondent Jose Africa), p. 7; rollo, p. 462.
[92] Section 9 of Presidential Decree 1606, in effect at the time of the consolidation, provides:
Rule-making Power. The Sandiganbayan shall have the power to promulgate its own rules of procedure and, pending such promulgation, the Rules of Court shall govern its proceedings.
[94] This provision, in turn, is an exact reproduction of Rule 42(a) of
the 1938 Federal Rules of Civil Procedure of the
[95] Wright and Miller, Federal Practice and Procedure: Civil 2d 2381, p. 427.
[96] See People v. Sandiganbayan,
456 Phil. 707 (2003); Cojuangco, Jr. v. Court of Appeals, G.R. No. 37404,
[97] Wright and Miller, supra note 95, at 429.
[98] 1 C.J.S. 107, p. 1341; Wright and Miller, Federal Practice and Procedure: Civil 2d 2382.
[99] 1 C.J.S. 107, id.;
Wright and Miller, id. at 429. See Yu, Sr. v. Basilio G. Magno Construction and
Development Enterprises, Inc., G.R.
Nos. 138701-02,
[100] 1 C.J.S. 107, id.; 1 Am. Jur. 2d 131, p. 804; Wright and Miller, id.
[101] The April 15, 1993 Resolution ordering consolidation reads:
Submitted
for resolution is the Motion for Consolidation, dated
The record shows that there is no opposition in the above-entitled cases to the said motion. It also appears that the subject matters of the above entitled cases are and/or may be treated as mere incidents in Civil Case No. 0009.
WHEREFORE, the above-entitled cases are hereby ordered consolidated with Civil Case No. 0009, and shall henceforth be consolidated and treated as mere incidents of said Civil Case No. 0009. (Records, Volume III, pp. 843-844.)
[102] See Victor Africas Motion (Records, Volume XVIII, pp. 6717-6722).
[103] In its Motion for Consolidation, the petitioner argued:
4. On various dates, several actions were filed which are intimately related with Civil Case No. 0009, involving as they are the same subject matter and substantially the same parties x x x.
x x x x
10.
Besides, the present Motion for Consolidation is not without a paradigm which
was recently sketched by [the Sandiganbayan]. During the hearing on
[104] In the 1966 edition of Vicente J. Franciscos Revised Rules of Court, Francisco wrote:
The effect of consolidation of actions is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of actions involved had originally been joined in a single action, and the order of consolidation, if made by a court of competent jurisdiction, is binding upon all the parties to the different actions until it is vacated or set aside. After the consolidation there can be no further proceedings in the separate actions, which are by virtue of the consolidation discontinued and superseded by a single action, which should be entitled in such manner as the court may direct, and all subsequent proceedings therein be conducted and the rights of the parties adjudicated in a single action (1 C.J.S., 113, pp. 1371-1372).
At the very beginning of the discussion on consolidation of actions in the Corpus Juris Secundum, the following caveat appears:
The term consolidation is used in three different senses. First, where several actions are combined into one and lose their separate identity and become a single action in which a single judgment is rendered; second, where all except one of several actions are stayed until one is tried, in which case the judgment in the one is conclusive as to the others; third, where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. The failure to distinguish between these methods of procedure, which are entirely distinct, the two latter, strictly speaking, not being consolidation, a fact which has not always been noted, has caused some confusion and conflict in the cases. (1 C.J.S., 107, pp. 1341-1342) (Emphasis added).
In defining the term consolidation of actions, Francisco provided a colatilla that the term consolidation is used in three different senses, citing 1 C.J.S. 1341 and 1 Am. Jur. 477 (Francisco, Revised Rules of Court, p. 348).
[105] The respondents vigorously opposed the petitioners motion to adopt the testimony of, among others, Maurice Bane, and the Sandiganbayan ruled in favor of the respondents, without the petitioner questioning this development until after two years later. This circumstance cannot be taken lightly in view of the petitioners gross procedural deficiency in the handling of this main case.
[106] In those cases where the Court ordered or
affirmed the order of consolidation, even without expressly providing for the
admissibility of evidence in all of the consolidated cases, the parties are the
same and/or the issues are relatively simple and/or the causes of action could
have actually been stated in one complaint (see Domdom v. Third and Fifth Divisions of the Sandiganbayan, G.R. Nos. 182382-83, February 24, 2010, 613
SCRA 528; Active Wood Products Co.,
Inc. v. Court of Appeals, G.R. No.
86603, February 5, 1990, 181 SCRA 774; Delta
Motor Sales Corporation v. Mangosing, No. L-41667,
[107] Dated
[108] Under Section 7, Rule 18 of the Rules of Court, a Pre-Trial Order controls the subsequent course of the action, unless modified before trial to prevent manifest injustice.
[109] Records, Volume XXXVI, p. 11405.
[110] 1964 Rules of Court, Rule 24, Depositions and Discovery.
[111] Petitioners Reply with Manifestation to Respondent Enriles Comment, pp. 12-13; rollo, pp. 679-680.
[112] Records, Volume XLV, pp. 110-112. Petitioners Common Reply reads:
1. While it is true that Section 47, Rule 130 of the Rules of Court provides:
x x x x
[petitioner] wishes to inform this Honorable Court that in order to substantially comply with the aforementioned requirements, it would be willing to present subject witnesses, except for Maurice Bane and Rolando Gapud whose availability are difficult to obtain being foreign residents, only to be cross-examined by the defendants who had no opportunity to cross-examine them in said previous proceeding.
[113] Dasmarias Garments, Inc. v. Reyes, G.R.
No. 108229,
[114] Jonathan Landoil
International Co., Inc. v. Mangudadatu, G.R. No. 155010, August 16,
2004, 436 SCRA 559, 573, citing Fortune Corporation v. CA, G.R. No.
108119, January 19, 1994, 229 SCRA 355, 362.
[115] Dasmarias Garments, Inc. v. Reyes, supra note 113.
[116] Ibid.
[117] Ibid.
[118] Jovito R. Salonga, Philippine Law of Evidence, p. 540, 2nd ed., 1958. John Henry Wigmore, supra note 77, at 51-53. But the generally accepted view, followed by our own rules on evidence, is that prior testimony or deposition is an exception to hearsay prohibition. (McCormick on Evidence by Edward Cleary, 254, p. 759, 3rd ed., Hornbook Series, Lawyers ed., 1984).
[119] Section 6, Rule 132 of the Rules of Court reads:
Cross-examination; its purpose and extent. Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.
[120] John Henry Wigmore, supra note 77, at 83.
[121] Oscar M. Herrera, 5 Remedial Law, 1999, pp. 773, 774-775.
[122]
[123] Manuel V. Moran, 5 Comments on the Rules of Court, 1980 ed., p. 409.
[124] Vicente J. Francisco, Evidence, 1955, p. 646.
[125] Ricardo J. Francisco, 7 The Revised Rules of
Court in the
[126] Prior to the revision of the rules on evidence,
the phrase out of the
[127] Vicente J. Francisco, Evidence, supra note 124, at 649.
[128] John Henry Wigmore, 5 A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 1404, p. 149.
[129] Northwest
Airlines, Inc. v. Cruz, 376 Phil. 96 (1999).
[130] Ricardo J. Francisco, supra note 125, at 627, cited in the Comment filed by the substituted heirs of respondent Jose Africa, p. 3.
[131] John Henry Wigmore, supra note 128, at 148.
[132] To make matters worse, by not questioning the Sandiganbayans denial of its 1st Motion (to Adopt), the petitioner has impliedly acceded to the Sandiganbayans ruling that the non-presentation of the deponent in court for cross-examination is unjustified. Unfortunately, the petitioner realized its mistake only two precious years later.
[133] Ricardo J. Francisco, supra note 125, at 220.
[134]
[135] Edward Cleary, supra note 118, at 48.
[136] Manuel V. Moran, supra note 123, at 410.
[137] Jovito R. Salonga, supra note 118, at 542.
[138] Oscar M.
Herrera, supra note 121, at 772.
Privies are distributed into several classes, according to the manner of the
relationship. Thus, there are privies in estate, as donor and donee, lessor and
lessee, and joint tenants; privies in blood, as heir and ancestor; privies in
representation as executor and testator, administrator and intestate; privies
in law for the law without privity of blood and estate casts the land upon
another as by escheat. (
[139] Notably,
[140] Petitioners Reply to Nietos Comment, p. 4; and petitioners Reply with Manifestation to Respondent Enriles Comment, pp. 11-12. Rollo, pp. 678-679.
[141] Records, Volume XXXVI, p. 11534.
[142] Records, Volume XXXVI, pp. 11574-11578; Volume XXXVII, pp. 11649- 11654; 11704-11709.
[143] Records, Volume XXXVI, pp. 11610-11612.
[144] Records, Volume XXXVII, pp. 11719-11720.
[145]
While the Sandiganbayan recognized that
the petitioner intends to use the Bane deposition in Civil Case No. 0009 (as
stated in the Second Amended Notice of
the Taking of the Bane Deposition), the Sandiganbayan denied Africas
Motion as if Africa himself was impleaded in and is a party who can be bound by
the proceedings and the judgment in Civil Case No. 0009 (except only as a
substituted heir of the late respondent Jose Africa). In denying Victor
Africas motion (forgetting about the concern raised by respondent Enrile
which is equally applicable to the other respondents), the Sandiganbayan seemed
oblivious of the fact that the respondents who were non-parties to Civil Case
0130 (where the deposition was taken) should be heard. Apparently, the
Sandiganbayan relied blindly on the petitioners assertion that the taking of
deposition is a matter of right and failed to address the consequences and/or
issues that may arise from the apparently innocuous statement that the
petitioner intends to use the Bane deposition in Civil Case No. 0009 (where
only the respondents, and not
More importantly, under Section 1 of Rule 24 the taking of such deposition, after the answer has been served, is a matter of right and can be resorted to without leave of court. (Records, XXXVII, pp. 11719-11720)
[146] 376 Phil. 111-112 (1999).
[147] In its Motion for Summary Judgment, dated
7. In this connection, we are not unmindful of the observation of [the Sandiganbayan] that:
The principal issue in the main case, Civil Case No. 0009 x x x which is an action for reversion, forfeiture, accounting and damages, is whether or not there is preponderance of evidence that the Class A shareholding in ETPI is ill-gotten wealth x x x. That point should not be pre-empted in the resolution of the subject incident in G.R. No. 107789 x x x
8. Nor are we unmindful that this Honorable Court made clear that the finding in its December 13, 1996 resolution does not render moot and academic the principal issue in the main case, Civil Case No. 0009, which is: whether or not there is preponderance of evidence of alleged ill-gotten wealth of the defendants therein, especially Jose Africa, Roberto S. Benedicto and Manuel H. Nieto, Jr., none of whom is a party either in incident Civil Case No. 0130 or in the subject G.R. No. 107789. (Italics supplied) (Records, XL, pp. 12568-12569.)
[148] Mabayo
Farms, Inc. v. Court of Appeals, G.R. No. 140058, August 1, 2002, 386 SCRA
110; and Development Bank of the Philippines v. Bautista, et al., 135 Phil. 201 (1968).
[149] Section 6, Rule 23 of the Rules of Court reads:
Objections to admissibility. Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
Section 17, Rule 23 of the Rules of Court reads:
Record of examination; oath; objections. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim.
[150] Records, Volume XXXVII, pp. 11628-11623.
[151] See the petitioners Pre-Trial Brief (Records, Volume XXXVI, p. 11405) where the petitioner made a representation to present Mr. Maurice Bane. See the petitioners Common Reply (Records, Volume XLV, pp. 110-112) where the petitioner conceded the applicability of Section 47, Rule 130; see the petitioners Motion for Summary Judgment (Records, Volume XL, pp. 12568-12569) where the petitioner admitted that the respondents were not parties to Civil Case No. 0130 (where the deposition was taken) and Victor Africa was neither a party to Civil Case No. 0009.
[152] Ricardo J. Francisco, supra note 125, at 69.
[153] Oscar M. Herrera, supra note 121, at 72.
[154] Manifest things require no proof; what is known by the magistrate need not be proved; Jovito R. Salonga, supra note 118, at 45; and Eduardo B. Peralta, Jr., Perspectives of Evidence, 2005, p. 52, citing 1 Jones on Evidence, p. 209.
[155] Section 1, Rule 129 of the Revised Rules on Evidence.
[156]
[157]
[158]
Manuel V. Moran, supra note 123, at 47-48, citing Municipal Council of San Pedro
Laguna v. Colegio de San Jose, 65 Phil. 318 (1938); and Prieto v. Arroyo,
121 Phil. 1335 (1965).
[159] In Occidental Land Transportation Co., Inc. v. Court of Appeals, G.R. No. 96721, March 19, 1993, 220 SCRA 167, 176, citing Tabuena v. Court of Appeals, 196 SCRA 656 (1991), we stated:
And unlike the factual situation in Tabuena v. CA,
the decision in Civil Case No. 3156 formed part of the records of the instant
case (Civil Case No. 2728) with the knowledge of the parties and in the absence
of their objection. This fact was pointed out by the lower court, to wit:
The x x x findings of the
x
x x x
Returning to Exhibit "O," supra (Decision,
Civil Case No. 3156, CFI, Branch III, Oroquieta City), the Court hastens to
add: Said exhibit has not been objected to nor commented upon by the defendants
Company and Enerio, through their counsel, x x x.
This being the case, petitioners were aware that
Exhibit "O" (Decision in Civil Case No. 3156) had formed part of the
records of the case and would thereby be considered by the trial court in its
decision.
[160] Section 1, Rule 9 of the Rules of Court reads:
Defenses and objections not pleaded. - Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (underscoring ours)
In Lewin v. Galang, etc., 109 Phil. 1041, 1045 (1960), cited by the petitioner, the Court held:
In view of this special defense [res judicata], the court below should have taken judicial notice of the habeas corpus proceedings instituted by petitioner before the same Court of First Instance of Manila and before the same judge, Case No. 28409, Ted Lewin v. Commissioner of Immigration and Commissioner of Customs, and we find that practically the same facts relied upon in petitioner's present petition for declaratory judgment are the very facts upon which petitioner based his request for the issuance of the writ of habeas corpus in the previous case.
In Tiburcio, et al. v. Peoples Homesite and Housing Corporation, et al., 106 Phil. 477, 483-484 (1959), likewise cited by the petitioner, we held:
Appellants finally claim that the lower court erred
in dismissing the complaint on the ground of res judicata by taking
judicial notice of its own records in Land Registration Case No. L-3 invoking
in support of their contention the principle that a court cannot take judicial
notice of the contents of the records of other cases even when such cases had
been tried by the same court and notwithstanding the [fact] that both cases may
have been tried before the same judge. While the principle invoked is
considered to be the general rule, the same is not absolute. There are
exceptions to this rule. Thus, as noted by former Chief Justice Moran:
In some instance[s], courts have taken judicial
notice of proceedings in other causes, because of their close connection with
the matter in controversy. x x x
Moreover,
appellants' objection to the action of the trial court on this matter is merely
technical because they do not dispute the fact that appellant x x x, who
instituted the present case, is the same person who filed the application in
Land Registration Case No. L-3 for the registration of the same parcel of land
which application was denied by the court x x x. It may therefore be said that
in the two cases there is not only identity of subject matter but identity of
parties and causes of action. Indeed, the trial court did not err in dismissing
the complaint on the ground of res judicata.
[161] Petitioners Reply with Manifestation (to respondent Enriles Comment) enumerates the various family member cases which arose from the present and main case, Civil Case No. 0009.
[162] De
[163] Lewin v. Galang, etc., supra; and Tiburcio, et al. v. Peoples Homesite and Housing Corporation, et al., supra.
[164]
319 Phil. 387, 389 (1995).
[165] Rules of Court, Rule 130, Section 47.
[166] Revised Rules on Evidence, Rule 128, Section 3.
[167] The dissent then compares the proceedings in the
Court when cases are consolidated to support its position that consolidation
results in the merger of the different causes of action. However, it is not exactly appropriate to compare
the consolidation of cases in the Supreme Court with the consolidation ordered
by the Sandiganbayan because the Supreme Court is NOT a trier of facts.
First, the scope of our review is
limited generally to questions of law. Hence, no issue of prejudice to other
parties can arise should petitions in the Court be consolidated. Second, unlike consolidated cases in the Supreme Court, the Sandiganbayan
itself had, in fact, separately adjudged an incident of Civil Case No.
0130 and the few other incident cases independent
of Civil Case No. 0009.
[168] Correctible under Rule 65 of the Rules of Court.
[169] When it denied