A.M. No.

981-CFI July 29, 1977

GIL GEORGA, complainant,

vs.
HON. PEDRO C. QUITAIN, District Judge of the Court of First Instance of Masbate,
Branch II, Masbate, Masbate, respondent.

FERNANDO, J.:

It was the issuance of a warrant of arrest against complainant Dr. Gil Georga the former
municipal health officer of Claveria, Masbate, thereafter assigned to Tayasan Negros
Oriental, for his failure to appear as government medico-legal witness in a pending murder
case before respondent Judge Pedro C. Quitain of the Court of First Instance of Masbate, that
started the train of events leading to this administrative complaint for grave abuse of authority
and conduct unbecoming a judge. The excuse offered for such non-appearance was the fact
that he had previously sent a telegram to respondent Judge seeking information as to
whether he would be reimbursed for the traveling expenses to be incurred and that he had
received no reply. As a result thereof, he "terribly suffered from the humiliation of having been
arrested and confined in the headquarters of the Philippine Constabulary as if [he] were a
criminal, from May 9, 1975 to May 14, 1975 when, upon [his] repeated pleas that [he] was not
going to escape, the Provincial Commander o f Negros Oriental, allowed [him] to proceed to
Masbate alone at [his] own expense." 1 That he did, and he was able to testify.

Respondent Judge then dictated in open court the order for his release. Thereafter, in the
chambers of the latter, when he sought to explain why he f to appear, he complained that he
was ignored and treated with discourtesy. That was the basis for his charge of conduct
unbecoming a district judge. Respondent Judge was required to comment on such complaint.
He submitted an eight-page explanation, the relevant portion of which follows: "Clearly, this
charge stemmed from the order of arrest issued by the undersigned against the complainant
for his failure to appear in Court on March 5, 1975, in spite of a subpoena duly served upon
him as a government witness in the case hereinabove mentioned. True, the complainant
addressed a telegram to the undersigned, in exact words, to wit: "[Advice undersigned agrave
(sic) party Masbate Masbate province shoulder traveling expenses per them appear
government witness Azanares case March 5 ... Dr. Georga]." True, the undersigned did not
make any reply because it was the honest conviction of the undersigned that he is not duty
bound to make any inquiry for the complainant, much less advice the complainant in any
manner, not to mention the fact that the telegram carried the tone of an order. It lacked the
element of courtesy since the telegram did not sound as a request. It is also true that the
complainant did not appear in Court on March 5, 1975 that he might testify as tie last witness
for the prosecution. Hence, on March 5, 1975, the undersigned, on motion of the Fiscal,
ordered the complainant arrested ... . There is no doubt that the complainant received the
subpoena issued by the undersigned requiring him to appear on March 5, 1975 so he could
not testify for the government. This is borne out by the records of the case." 2 Further: "In
passing, may it be said that as a national employee, the complainant knows that he is entitled
to traveling expenses, per diems and official time, every time he complies with a subpoena.
This must he the reason why he secured from the Clerk of Court a Certificate of Appearance
which was accordingly issued to him. ... May it be said further, that if in the past the
complainant had not been reimbursed his expenses which he had incurred in similar
instances, the reason could only be that the claim for reimbursement had not been legally and
vigorously pursued." 3 As to the allegation that his conduct in chambers when complainant
was explaining his inability to appear was unbecoming a judge, respondent Judge stated the
following: "In fairness to the complainant, the undersigned does not hesitate to state that the
complainant was very courteous when he was talking to the undersigned in chambers.
Certainly, the undersigned had no reason to be discourteous, as he was not in fact so, to the
complainant. On the contrary, after hearing the complainant's explanation, the undersigned
told the complainant that the respondent, while sympathizing with the complainant for the
latter's experiences (sic) of having spent his own funds for trips made as a witness in criminal
cases, there was no way out of the predicament except to obey the subpoena. And after
considering the complainant's explanation, the undersigned issued an order in chambers
accepting the explanation as satisfactory and ordering at the same time the immediate
release of the complainant, ... . The issuance of the said order is inconsistent with the claim of
complainant that his explanation made in chambers was ignored by the undersigned." 4

The matter was then referred to the Acting Assistant Judicial Consultant Lorenzo Relova of
the Court of Appeals for study, report and recommendation. In a memorandum submitted to
the Court dated June 29, 1977, after setting forth the above facts and in the light of People v.
Montejo, 5 he recommended that the charges be dismissed. He explained why: "It is
submitted, therefore, that Respondent cannot be administratively held liable. To hold
otherwise would be allowing a [disregard] of the coercive power of the courts to compel
attendance in court of cited witnesses. (Section 5 (e) of Rule 135 of the Rules of Court). This
is not to mention the very satisfactory explanation of the Respondent on all the charges
imputed against him. Furthermore, Complainant was furnished a copy of the
comment/explanation of Respondent as early as July 15, 1975 ... , but up to now, no reply
was ever received by the Court from Complainant. It would seem that Complainant is satisfied
of the explanation of respondent Judge."6

This Court accepts such recommendation. The aforecited case of People v. Montejo is in
point. The decisive question therein raised is whether a court of first instance hearing a
criminal case may compel by subpoena the attendance of a witness in his sala in Zamboanga
City, when the known address of such witness is at Montalban, Rizal. It was argued that
under the Rules of Court, 7 a witness is not bound to attend a hearing if held outside the
province he resides unless the distance be less than 50 kilometers from his residence to the
place of trial. Such contention did not command the assent of this Court. Thus: "It is loathe to
clip what undoubtedly is the inherent power of the Court to compel the attendance of persons
to testify ii a case pending therein. Section 9 of Rule 23 is the interpreted to apply solely to
civil cases, A recognition of such power in a court of first instance conducting the trial of an
accused may be gleaned from principle that justifies it when satisfied 'by proof or oath, that
there is reason to believe that a material witness for the prosecution will not appear and testify
when required,' to order that he 'give bail in sum as [it] may deem proper for such
appearance. Upon refusal to give bail, the court must commit him to prison until he complies
or is legally discharged.' Under the circumstances, in view of the serious handicap to which
the prosecution would thus be subjected in proving its case, the order of respondent judge
denying the motion for an order of arrest or a citation for contempt in the alternative, b on a
clear misapprehension of the Rules of Court, could be viewed as amounting to grave abuse of
discretion. It would follow then that respondent Judge should decide said motion without
taking into consideration Section 9 of Rule 23." 8 What was done by Judge Quitain was,
therefore, within his discretion. There was no grave abuse of authority. Nor can the
accusation of conduct unbecoming a judge be taken seriously. In Bartolome v. De Borja, 9 it
was held: "As far as the behavior of a trial judge is concerned, however, it is not realistic to
assume, considering the nature and the burden laid on his shoulders, that he will at all times
personify equanimity."10 Even if his conduct in chambers did not live up fully then to the
demands of politeness and courtesy, disciplinary action does not lie. Moreover, as shown in
the memorandum of Acting Judicial Consultant, the fact that he did not even bother to refute
the allegation of respondent Judge that he behaved as gentleman should during their talk in
chambers may justifiably lead to the inference that complainant, on calmer reflection with his
resentment diminishing with the passage of time may have decided not to press this particular
accusation anymore.

WHEREFORE, this administrative complaint against respondent Judge Pedro C. Quitain is

dismissed for lack of merit.

Barredo, Antonio, Aquino, Concepcion, Jr. and Santos JJ., concur.

A.M. No. RTJ-99-1467 August 5, 1999

ATTY. SAMUEL D. PAGDILAO, JR., Chief of Police, Caloocan City, complainant,

vs.
JUDGE ADORACION G. ANGELES, RTC, Branch 121, Caloocan City, respondent.

RESOLUTION

MENDOZA, J.:

This is a complaint for grave abuse of discretion filed against respondent Judge Adoracion G. Angeles
of the Regional Trial Court, Branch 121, Caloocan City. Complainant is the Chief of Police of
Caloocan City, Samuel D. Pagdilao, Jr. The complaint stemmed from several orders of arrest issued by
respondent against Caloocan City policemen for their failure to attend hearings in criminal cases and
testify as state witnesses, which respondent wanted complainant to personally enforce.1wphi1.nt

The record shows that on August 10, 1998, respondent issued an order of arrest which reads as
follows:1

In today's initial trial in Criminal Case Nos. C-53625 (98), 53626 (98), 53622 and 53623 (98),
accused Manuel Mendoza and Romeo Cendao appeared and assisted by Atty. Ojer Pacis of the
Public Attorney's Office (PAO). However, there was no appearance on the part of PO2
Alexander Buan. The records will show however that he was duly notified of today's hearing but
despite notice he did not appear thereby delaying the early termination of these cases.

Consequently, and on motion of the public prosecutor, let a warrant of arrest be issued against
PO2 ALEXANDER BUAN and the Chief of Police, Caloocan City, Police Superintendent
 Samuel Pagdilao is hereby directed to effect the service of the warrant of arrest and to bring the
body of the witness not later then 8:30 o'clock in the morning tomorrow, August 11, 1998 for
him to testify in these cases.

The accused is likewise directed to appear tomorrow, August 11, 1998.

WHEREFORE, let the scheduled hearing for today be cancelled and have it reset tomorrow,
August 11, 1998 at 8:30 o'clock in the morning.

SO ORDERED.

On August 11, 1998, respondent issued another order in another case (Criminal Case No. C-
53081(97)), the pertinent portion of which reads:2

After the pre-trial in this case has been waived by the accused through counsel, the Public
Prosecutor failed to present its evidence on the ground that his witnesses, mostly police officers,
did not appear despite notices.

Consequently, on motion of the Public Prosecutor, let a warrant of arrest be issued against SPO1
Edgardo Fernandez and PO3 Eduardo S. Avila.

Let the service of the warrant of arrest upon SPO1 Edgardo Fernandez and PO3 Eduardo S.
Avila be effected by no less than the Chief of Police of Caloocan City, Supt. Samuel Pagdilao
and the latter is directed to make a return on or before September 1, 1998.

On August 12, 1998, in Criminal Case No. C-53796(98), respondent issued an order reading:3

A cursory examination of the records will readily show that on June 23, 1998 P/Insp. Emmanuel
R. Bravo appeared and signed for the scheduled hearing today, August 12, 1998 at 8:30 o'clock
in the morning, but he did not appear despite notice thereby delaying the early termination of
this case.

Let it be noted that the accused is a detention prisoner who is entitled to a speedy trial and the
trial could not proceed in view of the non-appearance of the aforesaid witness.

Consequently, and on motion of the public prosecutor, let a warrant of arrest be issued against
P/Insp. Emmanuel R. Bravo of the Caloocan City Police Force and let the warrant be served
personally by the Chief of Police of Caloocan City, Police Superintendent Samuel Pagdilao and
the latter is directed to make a return of the warrant not later than 8:30 o'clock in the morning
tomorrow, August 13, 1998.

Apparently, resenting the tenor of the orders directed personally at him, complainant wrote respondent
on August 14, 1998 asking for the reconsideration of the foregoing orders:4

14 August 1998

Honorable Adoracion G. Angeles

Acting Presiding Judge
RTC Branch 125, Caloocan City
Your Honor:

This is with regards to orders lately coming from that (sic) Honorable Court directing the undersigned
to personally serve and return subpoenas and warrants of arrests against PNP personnel assigned within
and/or outside the Caloocan City Police Station.

As Chief of Police of one of the three biggest Police Departments in the National Capital Region (next
only to Manila and Quezon City), I have to attend to many matters which would prevent my personally
performing the task of service on (sic) subpoena and warrants.

May I, therefore, respectfully request the Honorable Court to reconsider such orders and instead allow
the undersigned to delegate to subordinate officers particularly, the Chief, Warrant and Subpoena
Section and Sub-Station Commanders, the performance of this task. This will allow the undersigned to
personally attend to the many operational activities of law enforcement as well as the various
administrative functions as Head of the City's Police Department.

The order of the Honorable Judge to the undersigned Chief of Police disregards the time honored
tradition and system of Command and Control practiced in our organization and reduces the level of
the Chief of Police into a subpoena server and arresting officer. A job which can be readily
accomplished by the Chief of Warrant and Subpoena Section and by other officers whom the
Commander may direct under this system.

Records show that service of warrants and subpoena to PNP personnel have all been duly accomplished
by our warrant and Subpoena Section.

I hope that this request will merit your favorable consideration.

Very respectfully yours,

(signed)

ATTY. SAMUEL D. PAGDILAO JR.

Police Superintendent (DSC)
Chief of Police

Copy Furnished:

The Honorable Chief Justice, Supreme Court

The Honorable Court Administrator, Supreme Court
The Chief of the Philippine National Police

Respondent's reaction was just as acerbic. In an order, dated August 21, 1998, denying complainant's
request for reconsideration, she said:5

Before this court for consideration is a Letter-Request dated August 14, 1998 filed by P/Supt.
Samuel D. Pagdilao, Jr., Chief of Police of the Caloocan City Police Department.

He assails the orders coming from this court directing him to personally serve and return
subpoenas and warrants of arrest against PNP personnel assigned within and/or outside the
Caloocan City Police Station. He further contends that such orders disregard the time-honored
tradition and system of Command and Control practiced in their organization and reduces the
level of the Chief of Police into a subpoena server and arresting officer.

Apparently, P/Supt. Samuel D. Pagdilao, Jr. perceives the assailed orders as an affront to the
eminence of his position as Chief of Police above all else.

Nonetheless, this court has never entertained thoughts of debasing the Chief of Police or
anybody else for that matter. Nor was it ever enticed to employ dictatorial schemes to abbreviate
its proceedings despite the fact that the Presiding Judge is practically handling three (3) salas at
the moment the first as the duly appointed judge, the second in an acting capacity and the
third as the pairing judge for the presiding judge thereat who has been on leave for quite some
time already.1wphi1.nt

Notwithstanding the incessant pressure inherent in the job, this court takes pride in the fact that
it has never lost its clear vision that it exists primarily for the proper and expeditious
administration of justice.

Indeed, this court has always been very zealous in the discharge of its bounder duties.
Nonetheless, its earnest efforts to promote a speedy administration of justice has many times
been unduly hampered by the frequent non-appearances of police officers in court hearings
despite sufficient notice. It has always been a big disappointment to the court that its dedication
to duty is sometimes not matched by some law-enforcement officers.

Hence, in order to solve this dilemma, the Court directed the Chief of Police to personally
ensure the attendance of his men in court hearings so much so that (sic) their testimonies are
very vital to the outcome of the criminal cases herein. The Orders of the court were never meant
to disregard the system of Command and Control being employed in the Police Force. Its only
concern was that such system of Command and Control must be effectively used to address the
lukewarm attitude of the Chief of Police's subordinate relative to their duty to appear in court.

It is noteworthy to mention that since the issuance of the assailed Orders, the concerned law
enforcement officers have shown an impressive attendance in court hearings which confirms
that it makes a lot of difference when the Chief of Police himself acts to ensure the compliance
of his subordinates to a lawful court Order.

Needless to state, the court was able to solve a perennial problem with the renewed cooperation
of the City's police force.

The court should not therefore be taken to task for its issuance of the questioned Orders because
the same was done in the interest of justice.

On the other hand, the Chief of Police must be reminded that this is not the time to be onion-
skinned and regard the said Orders as a personal insult to his dignity.

During this time when criminality is on the rise, would it not be more prudent for the Chief of
Police to lay aside his egotistical concerns and instead work with the courts of justice in
addressing the more pressing problems of criminally, violence and injustice?
 WHEREFORE, premises considered, the Letter-Request of the Chief of Police of Caloocan City
is duly noted but the court reiterates its stand that its foremost concern is the administration of
justice and with this consideration indelibly etched in its mind, it will issue such Orders which
are geared towards the achievement of its noble purpose.

Let copies of this Order be furnished upon the Honorable Chief Justice and Honorable Court
Administrator of the Supreme Court as well as to the Chief of the Philippine National Police
(PNP).

SO ORDERED.

In his complaint, dated October 28, 1998, complainant avers that respondent's orders betray her
ignorance of the rulings of this Court in several cases that non-attendance at a trial does not constitute
direct but indirect contempt punishable only after written charge and hearing under Rule 71 of the
Rules of Court. He states that the action of respondent not only seriously affects the service records of
the concerned policemen but also jeopardizes their promotions.

Complainant likewise assails the orders of respondent requiring him personally to arrest the policemen
concerned, make a return of the orders, and in the case of PO2 Alexander Buan, to bring the latter to
respondent's court not later than 8:30 in the morning of August 11, 1998. Complainant claims that the
order is capricious and whimsical because the time given to him for serving the warrant was short and
disregarded the "system of command and control, and the doctrine of qualified political agency in the
administration of public offices." According to complainant, when he asked respondent to reconsider
her order and allow his subordinates, particularly the Chief of the Warrant and Subpoena Section and
the Sub-Station Commanders, to serve the orders in question, respondent "arrogantly dismissed [the
principle complainant was raising] as nothing but a display of egotistical concerns."

In her comment on the complaint, respondent contended that the warrants of arrest against the
Caloocan City policemen were issued merely for the purpose of compelling the attendance of the
policemen at the court hearings as state witnesses as it had been her experience that the policemen
ignored her orders. She stated that in issuing the orders in question she was never motivated by ill will
but that her concern was solely to expedite the proceedings in two salas of the court over which she
was presiding since justice delayed is justice denied. She reiterated what she said in her order denying
complainant's request to be relieved from serving the orders. Respondent contends that a prior charge
or hearing is not required before a warrant of arrest may be issued under Rule 21, 8 of the Rules of
Court. She argues that this provision only requires proof of service of subpoena on a witness and the
fact that the witness failed to attend the scheduled hearing before a court can exercise its power of
compulsion.

On the allegation that complainant was given a very short period of time for serving the warrant of
arrest against witness PO2 Buan, respondent points out that the policeman was right in the Caloocan
City Police Station were complainant held office. As for her statement that complainant's letter was
"nothing but a display of egotistical concerns," respondent said that obviously complainant took
offense because of what he considered his "exalted position as chief of police."

Replying to respondent's comment, complainant argues that Rule 21, 8 invoked by respondent to
justify her orders is not applicable. He points out that the orders were intended not only to compel the
attendance of policemen in court but also to punish them for contempt of court. He also alleges that,
contrary to respondent's statement in her order dated March 10, 1999, in Criminal Case Nos. C-
55145(98) and 55146(98), that he did not make a return of the warrant of arrest against PO3 Nestor
Aquino, complainant says he made a return which, in fact, was received in respondent's court on March
10, 1999 at 10:22 a.m.6

Respondent's order reads as follows:7

In an order of the court dated March 8, 1999, a warrant for the arrest of PO3 Nestor Aquino,
prosecution's witness in these cases were issued by the Court directing the Chief of Police of
Caloocan City or the duly authorized representative of the latter to produce the body of the
aforesaid police officer not later than March 10, 1999 at 8:30 o'clock in the morning.

A cursory examination of the records will show that the order was received by the Chief of
Police of Caloocan City on the same date, March 8, 1999 but despite receipt thereof, the Chief
of Police of Caloocan City did not bother to make a return of the warrant of arrest thereby
delaying the early disposition of these cases.

Let it be stressed that this is a joint trial of Crim. Case No. 55145 (98) and Crim. Case No. C-
55146 (98) for the violation of the drugs law.

This indeed does not speak well of the Chief of Police of Caloocan City.

WHEREFORE, the Chief of Police of Caloocan City is hereby given a period of three (3) days
from receipt of a copy of this order to explain and to show cause why he should not be cited in
contempt of court for failure to produce today, March 10, 1999, the body of the afore-said
witness.

Let copies of this order be furnished upon the Director of the Philippine National Police (PNP)
National Capital Judicial Region (NCJR), Bicutan, Metro Manila as well as to the Director
General of the PNP, Roberto Lastimosa for them to know the actuation of the Chief of Police of
Caloocan City in the discharged of its official function.

Complainant's return, bearing the stamp "RTC, Branch 121, Caloocan, City, received, 3/10/99, 10:22
a.m.," reads:8

Date 10 March 1999

Respectfully returned to the Branch Clerk of Court RTC BR 121 Cal City the attached Warrant/Order
of Arrest in Crim. Case No. 55145-55146 (98) against PO3 NESTER AQUINO with address at DDEU,
NPDC, Tanigue St., Kaunlaran Vill. Caloocan City for the crime of Non-appearance (at the scheduled
hearing held on 8 March 1999.

REASONS: UNSERVED. Subject PNP personnel was already dismissed from the service
effective 16 February 1999. Attached herewith is the xerox copy of Spl Order No. 366 relative
to his dismissal.

Complainant adds that, in Caloocan City, only respondent issues orders to policemen to serve court
processes on short notice, and orders their arrest without hearing in case they fail to comply without
taking into account that they also have other work to do. He states that he filed the instant complaint
against respondent not to cause her dishonor but to promote respect for the law and to correct the
misimpression that Caloocan City policemen are "inefficient or defying court orders."

The Office of the Court Administration (OCA) recommends the dismissal of the complaint against
respondent for lack of merit. In its report, it states among other things:

A cursory reading of the records of this case shows the utter lack of merit of complainant's
cause.

First, a perusal of the questioned orders issued by the respondent reveals that the subject
policemen were not punished for contempt of court hence the contempt provisions under the
Revised Rules of Court is not applicable. Prior written charge and hearing therefore is not
necessary before Judge Angeles can issue warrant of arrest to compel their attendance in court
hearings;

Second, a judge is not prohibited to issue orders directing heads of police stations to personally
serve and return processes from the court;

Third, it cannot be considered as unreasonable the period given to complainant within which to
effect the service of the warrants of arrest issued by the court considering that the police officers
to be served by said warrants are working right at the Station headed by the complainant
himself; and

Lastly, on the charge that respondent arrogantly regarded the letter of complainant as "nothing
but a display of egotistical concerns" we are inclined to believe that the respondent's remarks
were not tainted with malice and that her only concern is for the "speedy and efficient
administration of justice."

Rule 21, 8, pursuant to which respondent issued her orders, states that "in case of failure of a witness
to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of
the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and
bring him before the court or officer where his attendance is required." Respondent is thus correct in
contending that a judge may issue a warrant of arrest against a witness simply upon proof that the
subpoena had been served upon him but he failed to attend the hearing. The purpose is to bring the
witness before the court where his attendance is required, not to punish him for contempt
which requires a previous hearing.9 However, unnecessary tension and asperity could have
been avoided had respondent simply called the attention of complainant to the failure of the
latter's men to comply with her orders instead of directing complainant to personally serve the
orders and bring the policemen himself to her sala. Moreover, as is clear from Rule 21, 8,
the orders of arrest should have been addressed to the sheriff or the latter's deputy.
Respondent could have done this while calling complainant's attention to the alleged
disregard by policemen of her orders so that appropriate disciplinary action could be taken if
necessary.

It would appear that respondent's order of August 10, 1998 in Criminal Case Nos. C-
53625(98), 53626(98), 53622, and 53623(98), which provoked this incident and gave rise to
the "word war" between the parties, was made because respondent thought that in the other
cases (Criminal Case Nos. 55145(98) and 55146(98)) heard that morning, complainant
ignored her order to produce a policeman whom she had ordered arrested. However, as
already noted, the policeman could no longer be presented in court as he had already been
dismissed from the service, and complainant did make a return informing the court of this fact,
although his return did reach the court a few hours after the hearing in which the policeman's
testimony was required.

It was this unfortunate incident which provoked the exchanges between complainant and
respondent: respondent acting on the erroneous belief that complainant had ignored her order
and, consequently, requiring complainant to personally arrest his own men and take them to
her court, and complainant taking umbrage at the orders. The observance of restraint was
never more demanded on the part of both parties.

Respondent acted a bit rashly while complainant reacted too strongly. The courts and the law
enforcers are two of the five pillars of the criminal justice system, the other three being the
prosecution, the correctional subsystem, and the community.10 Cooperation among, and
coordination between, the five pillars are needed in order to make the system work effectively.
Indeed, complainant and respondent, both avow a common objective of dispensing justice.
More than that, the parties should observe mutual respect and forbearance.

WHEREFORE, respondent Judge Adoracion G. Angeles of the Regional Trial Court, Branch
121, Caloocan City is ADMONISHED to be more circumspect in the discharge of her judicial
function with WARNING that repetition of the same or similar acts will be dealt with more
severely. The instant complaint is DISMISSED.1wphi1.nt

SO ORDERED.

Bellosillo, Quisumbing and Buena, JJ., concur.

G.R. No. 137136 November 3, 1999

NORTHWEST AIRLINES, INC., petitioner,

vs.
CAMILLE T. CRUZ and COURT OF APPEALS, respondents.

KAPUNAN, J.:

Before this Court is a petition for review on certiorari of the Decision of the Court of Appeals,
dated September 30, 1998; and, of its Resolution, dated January 11, 1999.

The antecedents facts are as follows:

On August 24, 1992, herein private respondents Camille T. Cruz, then a teenage girl who
would be travelling alone for the first time, purchased from petitioner Northwest Airlines a
round-trip ticket for a flight from Manila to Boston via Tokyo and back. The scheduled
departure date from Manila to Boston was August 27, 1992 at 8:40 a.m. in economy class
while the scheduled return flight from Boston to Manila in business class was on December
22, 1992 at 10:25 a.m. 1

On November 25, 1992, private respondents re-scheduled her return flight from Boston to
Manila to December 17, 1992 at 10:05 a.m. Accordingly, petitioner booked her on Northwest
flight NW005 C ("Flight 5") with route as follows: Boston to Chicago; Chicago to Tokyo; and,
Tokyo to Manila. 2

Petitioner reconfirmed the flight from Boston, U.S.A. to Manila scheduled on December 17,
1992 at least seventy-two (72) hours prior to the said scheduled flight. 3

However, barely a day before the scheduled date of departure, petitioner called private
respondent and informed her that instead of following her original itinerary of Boston to
Chicago; Chicago to Tokyo; and, Tokyo to Manila, private respondent should instead board
the TWA flight from Boston to Kennedy International Airport in New York. Private respondent
was further instructed by petitioner to proceed to the latter's counter at the Logan Airport in
Boston before boarding the TWA flight on the scheduled date of departure. 4

On December 17, 1992, upon petitioner's instructions, private respondent proceeded early to
the petitioner's counter at Logan Airport in Boston but was referred to the TWA counter where
she was informed that she may not be able to take the TWA flight. Notwithstanding this
uncertainty, private respondent was made to proceed to the International Gate where she was
informed that the TWA flight she was to take to Kennedy International Airport in New York
was cancelled. 5

Due to the unexplained and belated cancellation of the TWA flight, private respondent had to
rush back from the International Gate to petitioner's counter in Logan Airport in Boston where
she was again told to proceed immediately to the Delta Airlines terminal to catch the Delta
Airlines flight to La Guardia Airport in New York and thence took the service car to Kennedy
Airport in New York. 6

In her haste to catch the said flight, private respondent tripped and fell down on her way from
petitioner's counter to the Delta Airlines counter in Logan Airport in Boston thereby suffering
slight physical injuries and embarrassment. 7

When private respondent reached La Guardia Airport in New York, she again had to rush to
the service car that would take her to Kennedy International Airport which is several miles
away from La Guardia. In her haste and anxiety to catch her flight, private respondent again
tripped and fell down thereby suffering more physical injuries, embarrassment and great
inconvenience. 8

Private respondent's apprehension was further aggravated when she was informed at
petitioner's counter in Kennedy International Airport that she was issued the wrong ticket to
Seoul instead of Tokyo. Although the error was rectified by petitioner at Kennedy International
Airport, private respondent was by then extremely nervous, worried, stressed out, and
exhausted. 9
To make matters worse, petitioner downgraded private respondent from business class to
economy class on two legs of her flight without notice nor apology. Neither did petitioner offer
to refund the excess fare private respondent paid for a business class seat. 10

Hence, on August 6, 1993, private respondent filed a complaint 11 against petitioner

Northwest Airlines, Inc. for breach of contract of carriage committed when petitioner changed
private respondent's original itinerary of Boston to Chicago, Chicago to Tokyo, Tokyo to
Manila to a new itinerary of Boston to New York, New York to Tokyo, Tokyo to Manila,
thereby downgrading private respondent on two legs of her return flight to Manila from
business to economy class (flights from Boston to New York, and from Tokyo to Manila).
Private respondent claimed to have suffered actual, moral and exemplary damages. 12

Petitioner filed its answer with compulsory counterclaim alleging therein that the flight on
which private respondent was originally booked was cancelled due to maintenance problems
and bad weather, 13 and that the airline had done its best to re-book private respondent on
the next available flights.

Trial progressed until 1995 when it was petitioner's turn to present its witness on three
scheduled dates. Two of the settings were cancelled when petitioner's counsel filed notice for
oral deposition of one Mario Garza, witness for petitioner, in New York. Private respondent
filed her opposition and suggested written interrogatories instead. However, in an Order dated
July 26, 1995, the trial court denied private respondent's opposition, thus allowing the
deposition to proceed. The oral deposition took place in New York on July 24, 1995 14 or
notably two days before the issuance of the trial court's order allowing the deposition to
proceed.

The records show that although it was the Honorable Consul Milagros R. Perez who swore in
the deponent, 15 she thereafter designated one "Attorney Gonzalez" as Deposition Officer. 16
After stating his personal circumstances, Mr. Mario Garza, testified as follows:

xxx xxx xxx

ATTY. AUTEA

What is your present position?

MR. GARZA

I am currently a customer supervisor and instructor for Northwest in

Boston.

ATTY. AUTEA

In or about December 1992, what was your position?

MR. GARZA

I was a customer service supervisor and instructor.

ATTY. AUTEA

As a customer service supervisor and instructor what are the duties

which you discharged?

MR. GARZA

My responsibilities are in Boston field work to oversee the ground

staff and for the employees of Northwest who work at the counter,
gates, luggage service operations.

ATTY. AUTEA

Do you discharge any responsibilities in connection with canceled

flights?

MR. GARZA

Yes, I do. If a flight is canceled it is my responsibility amongst many

supervisor, to determine how we are gonna best serve our
customers with rebooking for protection some other main customer
services.

ATTY. AUTEA

Have you ever been come across the name of Camille T. Cruz in
connection with a canceled Northwest flight?

MR. GARZA

Yes, I have.

xxx xxx xxx

ATTY. AUTEA

Based on this passenger name record marked as Exhibit 2 and the

transcript marked as Exhibit 3, very briefly can you tell us what was
the original flight schedule of Camille T. Cruz on her return flight
from Boston to Manila on December 17, 1992?

MR. GARZA

It actually she goes back a little before that, she was booked
originally to return to Manila on the 22nd of December and she was
advised of the schedule change wherein Northwest Flight 3 to
Northwest Flight 5 and then on the 14th of October the reservation
from, I can tell here for the customer was changed from the 22nd of
December to 17th of December, Boston to Manila.
ATTY. AUTEA

Okay. You said that there was a change of flight from Northwest
Flight 3 to Northwest Flight 5, what brought about the change?

MR. GARZA

There was a schedule change and during schedule changes

sometime, anytime there's a change in departure time or change in
flight number and that's referred as a schedule change if there is a
phone contact we are advised to contact the customers so they will
know what flight they are supposed to be on.

ATTY. AUTEA

And and (sic) that does it show there as it is stated in the complaint
filed by the plaintiff that she requested for the change from
December 22 to December 17?

MR. GARZA

Yes.

ATTY. AUTEA

Now under this uhnew flight schedule Northwest Flight 5, what

was the itinerary of Camille T. Cruz?

MR. GARZA

Flight 5 is referred to as Direct Flight from Boston to Manila, uhh

the routing for that flight goes Boston Chicago, Tokyo-Manila with
a change of equipment and it is a change of aircraft type in Chicago.

ATTY. AUTEA

Okay. What happened to that flight? Northwest Flight 5? The

originally first leg of which was Boston to Chicago?

MR. GARZA

On the 17th, Flight 5 from Boston to Chicago canceled due to

maintenance problem.

xxx xxx xxx

ATTY. AUTEA
Ahh. In other words Mr. Garza, the aircraft which the plaintiff in this
case was scheduled to take came from Washington D.C., is that
right?

MR. GARZA

That is correct.

ATTY. AUTEA

And from Washington DC that aircraft flew to Boston is that right?

MR. GARZA

Well it supposed to fly it is it didn't fly.

ATTY. AUTEA

It was supposed to fly but it didn't fly?

MR. GARZA

That is correct.

ATTY. AUTEA

What is the reason for the inability of the aircraft to fly from
Washington DC to Boston?

MR. GARZA

Based on this messages says "Emergency Lights INOP and unable

to repair."

xxx xxx xxx

ATTY. AUTEA

In other words Mr. Garza, when the original Northwest Flight

Number 5 of the passenger Camille T. Cruz was canceled due to
maintenance work she was given two options, is that right?

MR. GARZA

Yes.

ATTY. AUTEA

And the first option is that written in Item Number 8, is that right?
MR. GARZA

That is correct.

ATTY. AUTEA

The second option is that written in Item Number 9 of Exhibit 3, is

that right?

MR. GARZA

That is correct.

ATTY. AUTEA

And who made the decision for Camille T. Cruz as to which option to
take?

MR. GARZA

In this case to me it would be the customer, because we would

always have to go with the customer wants.

ATTY. AUTEA

When you say that it was the customer who made the decision you
are referring to Camille T. Cruz the plaintiff in this case?

MR. GARZA

That's correct.

ATTY. AUTEA

In other words Camille T. Cruz, the plaintiff was the one who chose
the alternate flight shown in Item Number 9 of Exhibit 3?

MR. GARZA

That's correct.

xxx xxx xxx

ATTY. AUTEA

Why in coach?

MR. GARZA
I would say because that was what all that was available, she is a
business class passenger and there is no business class on
domestic flights, we do upgrade our business class passenger to
first class domestically on a space available basis so they would
indicate to me that possibly from Detroit was probably already sold
out in first class but we would be able to confirm her in coach but a
smaller flight.

ATTY. AUTEA

Are you saying that because of the cancellation of the original flight
of Camille T. Cruz, Northwest tried to book the passenger on the
available flight but that the available flight which was then available
was this coach class Northwest 440?

MR. GARZA

That's correct, from Boston to Detroit.

xxx xxx xxx

ATTY. AUTEA

Okay. The second leg of this trip in Item Number 9 says "NW 017 F
JFKNRT 17th December 1240 to 1700, what does that mean?

MR. GARZA

That means that we re-booked it from New York Kennedy to Tokyo

non-stop Narita Airport on Northwest Flight 17 in first class as
opposed to business class and that left Kennedy at 1240 arriving
into Tokyo at 1700.

ATTY. AUTEA

Why was she booked in first class?

MR. GARZA

Again I would say that business class was already sold out on that
flight so since she already been inconvenience before we are
allowed at the airport under types of circumstances then to move the
business class passenger into first class.

xxx xxx xxx

ATTY. AUTEA
 Now, the third leg of the trip under Item Number 9 of Exhibit 3 says
"NW 005 Y NRT MNI, 18th December 1815 to 2155, "what does that
mean?

MR. GARZA

That means that upon arriving in Tokyo she would connect to Flight
5 from Tokyo to Manila on the 18th departing at 1815 and arriving at
2155 and that was booked in coach.

ATTY. AUTEA

Why was she booked in coach?

MR. GARZA

I was again in uhh. Because first and business class would have
been sold out. 17

On November 9, 1995, at the hearing of the instant case, petitioner presented the deposition
record of its witness while private respondent reserved her right to cross-examine and present
rebuttal evidence.

Private respondent, likewise, questioned the conduct of the oral deposition as irregular and
moved for suppression of the same on the following grounds:

1. The deposition has been improperly and irregularly taken and returned in that:

(a) The deposition was taken on July 24, 1995 despite the fact that
this Honorable Court only ruled on the matter on July 26, 1995.

(b) There is no certification given by the officer taking the deposition

that the same is a true record of the testimony given by the
deponent in violation of Rule 24, Section 20 of the Rules of Court.

(c) The deposition was not securely sealed in an envelope indorsed

with the title of the action and marked "Deposition of (here insert the
name of witness)" in violation of Rule 24, Section 20 of the Rules of
Court.

(d) The officer taking the deposition did not give any notice to the
plaintiff of the filing of the deposition in violation of Rule 24, Section
21 of the Rules of Court.

(e) The person designated as deposition officer is not among those

persons authorized to take deposition in foreign countries in violation
of Rule 24, Section 11 of the Rules of Court.
 (f) There is no showing on record that the deponent read and signed
the deposition in violation of Rule 24, Section 19 of the Rules of
Court.

2. These irregularities or defects were discovered by the plaintiff during the

hearing on November 9, 1995 and plaintiff has acted with reasonable
promptness after having ascertained the existence of the aforesaid irregularities
and defects. 18

However, private respondent's motion was denied anew by the trial

court. 19

In its Order, dated July 23, 1996, the trial court admitted petitioner's formal offer of evidence
with supplement thereto and gave private respondent three days from receipt within which to
signify her intention to present rebuttal evidence.

On August 2, 1996, private respondent filed a manifestation and motion stating that the court
failed to rule on its motion to suppress deposition and to grant her the right to cross-examine
petitioner's deponent. Private respondent also manifested her intention to present rebuttal
evidence.

In its Order, dated September 5, 1996, the trial court denied private respondent's
manifestation and motion. Said court, likewise, denied private respondent's motion for
reconsideration of the above order. Hence, private respondent filed a petition for certiorari
with the Court of Appeals on April 7, 1998. 20

On September 30, 1998, the appellate court rendered a Decision, the dispositive portion of
which reads:

WHEREFORE, the petition is GRANTED. The questioned rulings of the Regional

Trial Court are hereby SET ASIDE, and judgments is hereby rendered
ORDERING the court a quo to disallow the deposition and continue with the trial
of the case without prejudice to petitioner's right to cross examine defendant's
witness and to present rebuttal evidence.

SO ORDERED. 21

Petitioner Northwest, thereafter, filed this instant petition for review alleging that:

I. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR

IN NOT DISMISSING THE PETITION OUTRIGHT SINCE THE
REMEDY OF APPEAL IS AVAILABLE TO PRIVATE
RESPONDENT. BESIDES, THE PETITION WAS FILED OUT OF
TIME.

II. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR

IN FINDING THAT THE TRIAL COURT GRAVELY ABUSED ITS
 DISCRETION BY ADMITTING INTO EVIDENCE THE ORAL
DEPOSITION.

III. THE COURT OF APPEALS COMMITTED REVERSIBLE

ERROR IN FINDING THAT PRIVATE RESPONDENT HAS NOT
WAIVED HER RIGHT TO CROSS-EXAMINE PETITIONER'S
WITNESS AND TO PRESENT REBUTTAL EVIDENCE. 22

Petitioner argues that the remedy of certiorari before respondent Court of Appeals was
improper, as private respondent has every opportunity to question on appeal the trial court's
ruling admitting the deposition.

According to petitioner, a careful analysis of the petition in the Court of Appeals shows that at
the heart of the issues raised is the correctness of the observed procedure by the trial court in
appreciating the admissibility of the transcript of the deposition of Mr. Mario Garza. Such
being the case, assuming without admitting that the trial court committed any error in issuing
the questioned orders, such error is only an error of judgment, and not an error of jurisdiction.

Petitioner further asserts that the trial court did not gravely abuse its discretion by admitting
into evidence the oral deposition. While as a general rule, Section 1, Rule 132 of the Rules of
Court 23 governs the conduct of trial, this rule admits of exceptions which this Court
recognized in the case of Dasmarinas Garments, Inc. vs. Reyes. 24 According to petitioner,
one of the exceptions is "when the witness is out of the Philippines." In this case, petitioner
has the right to take the deposition of its witness and offer it in evidence since Mr. Mario
Garza reside and works outside the Philippines. The deposition-taking at the Philippine
Consulate in New York City falls within the exceptions to the requirement that a witness give
his testimony in open court pursuant to Section 1, Rule 132 of the Rules.

Finally, petitioner alleges that private respondent must be deemed to have waived her right to
cross-examine petitioner's witness and her right to present rebuttal evidence by her failure to
attend the deposition-taking despite due notice thereof, or at the very least, to timely reserve
her right to serve written interrogatories.

Petitioner's arguments are untenable.

Sec. 16 of Rule 24 (now Rule 23 of he Rules of Civil Procedure of 1997) provides that after
notice is served for taking a deposition by oral examination, upon motion seasonably made by
any party or by the person to be examined and for good cause shown, the court in which the
action is pending may, among others, make an order that the deposition shall not be taken.
The rest of the same section allows the taking of the deposition subject to certain conditions
specified therein.

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 oppresively, 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. 25

Respondent court correctly observed that the deposition in this case was not used for
discovery purposes, as the examinee was the employee of petitioner, but rather to
accommodate the former who was in Massachusetts, U.S.A. Such being the case, the
general rules on examination of witnesses under Rule 132 of the Rules of Court requiring said
examination to be done in court following the order set therein, should be observed.

Respondent court also correctly noted that private respondent's objections to the oral
deposition had been made promptly and vehemently, as required by the Rules, but these
were wrongly disregarded as immaterial by the trial court.

We note with approval respondent court's ruling disallowing the depositions and upholding
private respondent's right to cross-examine:

. . . [The] deposition was not a mode of discovery but rather a direct testimony by
respondent's witness and there appears a strategy by respondent to exclude
petitioner's participation from the proceedings.

While a month's notice would ordinarily be sufficient, the circumstances in this

case are different. Two days of trial were cancelled and notice for oral deposition
was given in lieu of the third date. The locus of oral deposition is not easily within
reach of ordinary citizens for it requires time to get a travel visa to the United
States, book a flight in July to the United States, and more importantly substantial
travel fare is needed to obtain a round trip ticket by place (sic) from Manila to
New York and back to Manila.

As an international carrier, Northwest could very conveniently send its counsel to

New York. However, the ends of justice would have been better served if the
witness were instead brought to the Philippines. Written interrogatories was (sic)
requested to balance this inconvenience which was nonetheless also objected to
and denied for simply being time consuming. While time is a factor in deciding
cases, the more important principles would have been the thorough presentation
and deliberation of a case to ensure that the ends of justice are met since this is
the principal mission of a civilized judicial system.

The objections raised by petitioner [private respondent], in the light of the above
considerations, take on a greater weight. Section 11 of Rule 24 provides: "In a
foreign state or country, depositions shall be taken (a) on notice before a
secretary of embassy or legation, consul general, consul, vice-consul or consular
agent of the Republic of the Philippines, or (b) before such person or officer as
 may be appointed by commission or under letters rogatory." The deposition
document clearly indicates that while the consul swore in the witness and the
stenographer, it was another officer in the Philippine Consulate who undertook
the entire proceedings thereafter. Respondent Northwest argues on the
presumption of regularity of official functions and even obtained a certification to
this effect plus an assertion that none of the participants in the Consulate were in
any way related to the respondent or their counsel. But presumptions should fail
when the record itself bears out the irregularity.

The Rules (Rules 24, Sec. 29) indicate that objections to the oral deposition will
be waived unless the objections are made with reasonable promptness. In this
case, the objections have been prompt and vehement, yet they were disregarded
as not material such that the deposition and the exhibits related thereto were
admitted. Moreover, a Supplemental Offer of Evidence pertaining to a
certification by the consul in New York which tends to correct the objections
raised was also admitted by the Court. Respondents argue that the rules were
not exactly mandatory but merely guides to ensure that the ends of justice are
met. The Court interpreted with leniency the objections despite the
acknowledged mandatory language of the rules.

There is clear language of the law and the same should not be modified in
practice. The separate certification of the FSO from the transcript proper was
also questioned as irregular by petitioner [private respondent]. In so doing, she
was merely being vigilant of her rights considering that she was not present then.
No other proof thereon is needed when the same is clear on the face of the
deposition material given.

Petitioner's [private respondent] right to cross examine and to present rebuttal

evidence, having been reserved earlier, needed no reiteration. Even then, this
was nevertheless manifested and even vehemently argued. As defendant's oral
deposition was admitted, despite substantial issues raised against it in the
interest of justice, similar consideration, aside from substantial and technical
basis, also dictates that petitioner's [private respondent] right to cross-examine
and present rebuttal evidence should be granted. An even handed treatment of
the parties would require the same attitude towards the acceptance of petitioner's
[private respondent's] right to cross-examine and present its rebuttal evidence on
the same. 26

In Fortune Corporation vs. Court of Appeals, 27 this Court set aside upon review by certiorari
the order of the trial court allowing deposition because the order did not conform to the
essential requirements of law and may reasonably cause material injury to the adverse party:

The rule is that certiorari will generally not lie to review a discretionary action of
any tribunal. Also, as a general proposition, a writ of certiorari is available only to
review final judgment or decrees, and will be refused where there has been no
final judgment or order and the proceedings for which the writ is sought is still
pending and undetermined in the lower tribunal. Pursuant to this rule, it has been
held that certiorari will not lie to review or correct discovery orders made prior to
 trial. This is because, like other discovery orders, orders made under Section 16,
Rule 24 are interlocutory and not appealable considering that they of not finally
dispose of the proceeding or of any independent offshoot of it.

However, such rules are subject to the exception that discretionary acts will be
reviewed where the lower court or tribunal has acted without or in excess of its
jurisdiction, where an interlocutory order does not conform to essential
requirements of law and may reasonably cause material injury throughout the
subsequent proceedings for which the remedy of appeal will be inadequate, or
where there is a clear or serious abuse of discretion.

IN VIEW OF THE FOREGOING, the Court hereby DENIES the petition for failure of the
petitioner to sufficiently show that respondent Court of Appeals committed any reversible
error.

SO ORDERED.

G.R. No. 147143 March 10, 2006

HYATT INDUSTRIAL MANUFACTURING CORP., and YU HE CHING, Petitioners,

vs.
LEY CONSTRUCTION AND DEVELOPMENT CORP., and PRINCETON DEVELOPMENT CORP.,
Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for review on certiorari seeking the nullification of the Decision dated May 4,
2000 of the Court of Appeals (CA) then Seventh Division in CA-G.R. CV No. 57119, which remanded Civil
Case No. 94-1429 to the trial court and directed the latter to allow the deposition-taking without delay;1 and the
CA Resolution dated February 13, 2001 which denied petitioners motion for reconsideration.2

The facts are as follows:

On April 8, 1994, respondent Ley Construction and Development Corporation (LCDC) filed a complaint for
specific performance and damages with the Regional Trial Court of Makati, Branch 62 (RTC), docketed as
Civil Case No. 94-1429, against petitioner Hyatt Industrial Manufacturing Corporation (Hyatt) claiming that
Hyatt reneged in its obligation to transfer 40% of the pro indiviso share of a real property in Makati in favor of
LCDC despite LCDCs full payment of the purchase price of P2,634,000.00; and that Hyatt failed to develop
the said property in a joint venture, despite LCDCs payment of 40% of the pre-construction cost.3 On April 12,
1994, LCDC filed an amended complaint impleading Princeton Development Corporation (Princeton) as
additional defendant claiming that Hyatt sold the subject property to Princeton on March 30, 1994 in fraud of
LCDC.4 On September 21, 1994, LCDC filed a second amended complaint adding as defendant, Yu He Ching
(Yu), President of Hyatt, alleging that LCDC paid the purchase price of P2,634,000.00 to Hyatt through Yu.5

Responsive pleadings were filed and LCDC filed notices to take the depositions of Yu; Pacita Tan Go, Account
Officer of Rizal Commercial Banking Corporation (RCBC); and Elena Sy, Finance Officer of Hyatt. Hyatt also
filed notice to take deposition of Manuel Ley, President of LCDC, while Princeton filed notice to take the
depositions of Manuel and Janet Ley.6

On July 17, 1996, the RTC ordered the deposition-taking to proceed.7

At the scheduled deposition of Elena Sy on September 17, 1996, Hyatt and Yu prayed that all settings for
depositions be disregarded and pre-trial be set instead, contending that the taking of depositions only delay the
resolution of the case. The RTC agreed and on the same day ordered all depositions cancelled and pre-trial to
take place on November 14, 1996.8

LCDC moved for reconsideration9 which the RTC denied in its October 14, 1996 Order, portion of which reads:

This Court has to deny the motion, because: 1) as already pointed out by this Court in the questioned Order said
depositions will only delay the early termination of this case; 2) had this Court set this case for pre-trial
conference and trial thereafter, this case would have been terminated by this time; 3) after all, what the parties
would like to elicit from their deponents would probably be elicited at the pre-trial conference; 4) no substantial
rights of the parties would be prejudiced, if pre-trial conference is held, instead of deposition.10

On November 14, 1996, the scheduled date of the pre-trial, LCDC filed an Urgent Motion to Suspend
Proceedings Due to Pendency of Petition for Certiorari in the Court of Appeals.11 The petition, which sought to
annul the Orders of the RTC dated September 17, 1996 and October 14, 1996, was docketed as CA-G.R. SP No.
4251212 and assigned to the then Twelfth Division of the CA.

Meanwhile, pre-trial proceeded at the RTC as scheduled13 and with the refusal of LCDC to enter into pre-trial,
Hyatt, Yu and Princeton moved to declare LCDC non-suited which the RTC granted in its Order dated
December 3, 1996, thus:

On September 17, 1996, this Court noticing that this case was filed as early (as) April 4, 199414 and has not
reached the pre-trial stage because of several depositions applied for by the parties, not to mention that the
records of this case has reached two (2) volumes, to avoid delay, upon motion, ordered the cancellation of the
depositions.

On September 24, 1996, plaintiff filed a motion for reconsideration, seeking to reconsider and set aside the
order dated September 17, 1996, which motion for reconsideration was denied in an order dated October 14,
1996, ruling among others that "after all, what the parties would like to elicit from these deponents would
probably be elicited at the pre-trial conference", and, reiterated the order setting this case for pre-trial
conference on November 14, 1996.

On the scheduled pre-trial conference on November 14, 1996, a petition for certiorari was filed with the Court
of Appeals, seeking to annul the Order of this Court dated September 17, 1996 and October 14, 1996, furnishing
this Court with a copy on the same date.

At the scheduled pre-trial conference on November 14, 1996, plaintiff orally moved the Court to suspend pre-
trial conference alleging pendency of a petition with the Court of Appeals and made it plain that it cannot
proceed with the pre-trial because the issue on whether or not plaintiff may apply for depositions before the pre-
trial conference is a prejudicial question. Defendants objected, alleging that even if the petition is granted, pre-
trial should proceed and that plaintiff could take deposition after the pre-trial conference, insisting that
defendants are ready to enter into a pre-trial conference.

This Court denied plaintiffs motion to suspend proceedings and ordered plaintiff to enter into pre-trial
conference. Plaintiff refused. Before this Court denied plaintiffs motion to suspend, this Court gave Plaintiff
two (2) options: enter into a pre-trial conference, advising plaintiff that what it would like to obtain at the
deposition may be obtained at the pre-trial conference, thus expediting early termination of this case; and,
terminate the pre-trial conference and apply for deposition later on. Plaintiff insisted on suspension of the pre-
trial conference alleging that it is not ready to enter into pre-trial conference in view of the petition for
certiorari with the Court of Appeals. Defendants insisted that pre-trial conference proceed as scheduled,
manifesting their readiness to enter into a pre-trial conference.

When plaintiff made it clear that it is not entering into the pre-trial conference, defendants prayed that plaintiff
be declared non-suited. x x x

xxxx

In the light of the foregoing circumstances, this Court is compelled to dismiss plaintiffs complaint.

WHEREFORE, for failure of plaintiff to enter into pre-trial conference without any valid reason, plaintiffs
complaint is dismissed. Defendants counterclaims are likewise dismissed.

SO ORDERED.15

LCDC filed a motion for reconsideration16 which was denied however by the trial court in its Order dated April
21, 1997.17 LCDC went to the CA on appeal which was docketed as CA-G.R. CV No. 57119 and assigned to
the then Seventh Division of the CA.18

On July 24, 1997, the CAs then Twelfth Division,19 in CA-G.R. SP No. 42512 denied LCDCs petition for
certiorari declaring that the granting of the petition and setting aside of the September 17, 1996 and October 14,
1996 Orders are manifestly pointless considering that the complaint itself had already been dismissed and
subject of the appeal docketed as CA-G.R. CV No. 57119; that the reversal of the said Orders would have
practical effect only if the dismissal were also set aside and the complaint reinstated; and that the dismissal of
the complaint rendered the petition for certiorari devoid of any practical value.20 LCDCs motion for
reconsideration of the CA-G.R. SP No. 42512 decision was denied on March 4, 1998.21 LCDC then filed with
this Court, a petition for certiorari, docketed as G.R. No. 133145 which this Court dismissed on August 29,
2000.22

On May 4, 2000, the CAs then Seventh Division issued in CA-G.R. CV No. 57119 the herein assailed decision,
the fallo of which reads:

WHEREFORE, premises considered, finding the appeal meritorious, this case is remanded to the court a quo
for further hearing and directing the latter to allow the deposition taking without delay.

SO ORDERED.23

The CA reasoned that: LCDC complied with Section 1, Rule 23 of the 1997 Rules of Civil Procedure which
expressly sanctions depositions as a mode of discovery without leave of court after the answer has been served;
to unduly restrict the modes of discovery during trial would defeat the very purpose for which it is intended
which is a pre-trial device, and at the time of the trial, the issues would already be confined to matters defined
during pre-trial; the alleged intention of expediting the resolution of the case is not sufficient justification to
recall the order to take deposition as records show that the delay was brought about by postponement interposed
by both parties and other legal antecedents that are in no way imputable to LCDC alone; deposition-taking,
together with the other modes of discovery are devised by the rules as a means to attain the objective of having
all the facts presented to the court; the trial court also erred in dismissing the complaint as LCDC appeared
during the pre-trial conference and notified it of the filing of a petition before the CA; such is a legitimate
justification to stall the pre-trial conference, as the filing of the petition was made in good faith in their belief
that the court a quo erred in canceling the deposition scheduled for no apparent purpose.24
Hyatt and Princeton filed their respective motions for reconsideration which the CA denied on February 13,
2001.25

Hyatt and Yu now come before the Court via a petition for review on certiorari, on the following grounds:

THE COURT OF APPEALS, SEVENTH DIVISION, COMMITTED GRAVE ABUSE OF DISCRETION,

ACTUALLY AMOUNTING TO LACK OF JURISDICTION, IN HOLDING IN EFFECT INVALID THE
ORDERS OF THE LOWER COURT DATED SEPTEMBER 17, 1996 AND OCTOBER 14, 1996 WHICH
ARE NOT RAISED OR PENDING BEFORE IT, BUT IN ANOTHER CASE (CA-G.R. SP. No. 42512)
PENDING BEFORE ANOTHER DIVISION OF THE COURT OF APPEALS, TWELFTH DIVISION, AND
WHICH CASE WAS DISMISSED BY THE SAID DIVISION OF THE COURT OF APPEALS AND
FINALLY BY THE HONORABLE SUPREME COURT IN G.R. NO. 133145.

II

THE COURT OF APPEALS, SEVENTH DIVISION, COMMITTED GRAVE ABUSE OF DISCRETION

AND SERIOUS ERRORS OF LAW IN REVERSING THE LOWER COURTS ORDER DATED
DECEMBER 3, 1996 AND APRIL 21, 1997 HOLDING RESPONDENT NON-SUITED FOR FAILURE TO
ENTER INTO PRE-TRIAL.26

Anent the first issue, petitioners claim that: the validity of the RTC Order dated September 17, 1996 which set
the case for pre-trial, as well as its Order dated October 14, 1996 denying LCDCs motion for partial
reconsideration are not involved in CA-G.R. CV No. 57119 but were the subject of CA-G.R. SP No. 42512,
assigned to the then Twelfth Division, which dismissed the same on July 24, 1997 and which dismissal was
affirmed by this Court in G.R. No. 133145; in passing upon the validity of the Orders dated September 17, 1996
and October 14, 1996, the CAs then Seventh Division in CA-G.R. CV No. 57119 exceeded its authority and
encroached on issues taken cognizance of by another Division.27

On the second issue, petitioners claim that: the CAs then Seventh Division should have outrightly dismissed
the appeal of LCDC as the same did not involve any error of fact or law but pertains to a matter of discretion
which is properly a subject of certiorari under Rule 65 of the Revised Rules of Court; conducting discovery
thru deposition is not a condition sine qua non to the holding of a pre-trial and the fact that LCDC wanted to
take the deposition of certain persons is not a valid ground to suspend the holding of pre-trial and subsequently
the trial on the merits; the persons whose depositions were to be taken were listed as witnesses during the trial;
to take their depositions before the lower court and to present them as witnesses during the trial on the merits
would result in unnecessary duplicity; the fact that LCDC has a pending petition for certiorari with the CAs
then Twelfth Division docketed as CA-G.R. SP No. 42512 is not a ground to cancel or suspend the scheduled
pre-trial on November 14, 1996 as there was no restraining order issued; LCDCs availment of the discovery
procedure is causing the undue delay of the case; it is only after LCDC has filed its complaint that it started
looking for evidence to support its allegations thru modes of discovery and more than two years has already
passed after the filing of the complaint yet LCDC still has no documentary evidence to present before the lower
court to prove its allegations in the complaint.28

Petitioners then pray that the Decision dated May 4, 2000 and the Resolution dated February 13, 2001 of the
CAs then Seventh Division in CA-G.R. CV No. 57119 be annulled and set aside and the validity of the Orders
dated December 3, 1996 and April 21, 1997 of the RTC of Makati, Branch 62 in Civil Case No. 94-1429 be
sustained.29

In its Comment, LCDC argues that the petitioners erred in claiming that the CAs then Seventh Division
overstepped its authority as this Court has ruled in G.R. No. 133145 that the issue of whether LCDC has been
denied its right to discovery is more appropriately addressed in the appeal before the then Seventh Division in
CA-G.R. CV No. 57119 below rather than by the then Twelfth Division in the certiorari proceeding in CA-G.R.
SP No. 42512; and while the appeal of the final Order of the RTC dated December 3, 1996 also questioned the
Orders dated September 17, 1996 and October 14, 1996, it does not render the appeal improper as this Court in
G.R. No. 133145 held that the subsequent appeal constitutes an appropriate remedy because it assails not only
the Order dated December 3, 1996, but also the two earlier orders.30

On the second issue, LCDC contends that: the mere fact that a deponent will be called to the witness stand
during trial is not a ground to deny LCDC the right to discovery and does not cause "unnecessary duplicity",
otherwise no deposition can ever be taken; a deposition is for the purpose of "discovering" evidence while trial
is for the purpose of "presenting" evidence to the court; if petitioners concern was the delay in the disposition
of the case, the remedy is to expedite the taking of the depositions, not terminate them altogether; petitioners
have nothing to fear from discovery unless they have in their possession damaging evidence; the parties should
be allowed to utilize the discovery process prior to conducting pre-trial since every bit of relevant information
unearthed through the discovery process will hasten settlement, simplify the issues and determine the necessity
of amending the pleadings; the trial court erred in not suspending the pre-trial conference pending the petition
for certiorari before the then Twelfth Division of the CA since considerations of orderly administration of
justice demanded that the trial court accord due deference to the CA; not only was LCDCs petition for
certiorari filed in good faith, the CA found it meritorious, vindicating LCDCs insistence that the pre-trial be
suspended; the undue delay in the disposition of the case was not attributable to LCDCs deposition-taking but
to the flurry of pleadings filed by defendants below to block LCDCs depositions and prevent it from gaining
access to critical evidence; the critical evidence that LCDC needs to obtain through discovery is evidence that is
totally within the knowledge and possession of petitioners and defendant Princeton and is not available
elsewhere.31

On September 17, 2001, the Court required the parties to file their respective memoranda.32 Hyatt and Yu on the
one hand and LCDC on the other filed their respective memoranda reiterating their positions.33

On January 2, 2002, Princeton filed a "Comment" which this Court considered as its Memorandum in the
Resolution dated January 30, 2002.34

In said memorandum, Princeton averred that: it is not true that Princeton failed to comply with any discovery
orders as all information requested of Princeton was duly furnished LCDC and there are no pending discovery
orders insofar as Princeton is concerned; LCDC is seeking to dictate its procedural strategies on the RTC and
the opposing parties; LCDC was not deprived due process as it was given all the opportunity to prepare for its
case and to face its opponents before the court; LCDC admits to the probability of forum shopping as it filed a
petition for certiorari with the then Twelfth Division of the CA and later an appeal with the then Seventh
Division of the CA; the RTC did not bar LCDC from presenting witnesses or discovering any evidence, as all it
did was to transfer the venue of the testimony and discovery to the courtroom and get on with the case which
LCDC did not want to do; that discovery proceedings need not take place before pre-trial conference; trial court
judges are given discretion over the right of parties in the taking of depositions and may deny the same for good
reasons in order to prevent abuse; the trial court did not err in not granting LCDCs motion to suspend
proceedings due to the pendency of a petition for certiorari with the CA since there was no order from said
court and there was no merit in the petition for certiorari as shown by the dismissal thereof by the then Twelfth
Division; there was proper and legal ground for the trial court to declare LCDC non-suited; appearance at the
pre-trial is not enough; there is no evidence to support LCDCs claim that Hyatt surreptitiously transferred title
to Princeton.35

The Court is in a quandary why Hyatt and Yu included Princeton as respondent in the present petition when
Princeton was their co-defendant below and the arguments they raised herein pertain only to LCDC. With the
failure of petitioners to raise any ground against Princeton in any of its pleadings before this Court, we shall
treat Princetons inclusion as respondent in the present petition as mere inadvertence on the part of petitioners.
Now to the merits. The issues that need to be resolved in this case may be simplified as follows: (1) Whether the
CAs then Seventh Division exceeded its authority in ruling upon the validity of the Orders dated September 17,
1996 and November 14, 1996; and (2) Whether the CA erred in remanding the case to the trial court and order
the deposition-taking to proceed.

We answer both questions in the negative.

Petitioners assert that the CAs then Twelfth Division in CA-GR SP No. 42512 and this Court in G.R. No.
133145 already ruled upon the validity of the Orders dated September 17, 1996 and November 14, 1996, thus
the CAs then Seventh Division in CA G.R. CV No. 57119 erred in ruling upon the same.

A cursory reading of the decisions in CA-GR SP No. 42512 and G.R. No. 133145, however, reveals otherwise.
The CAs then Twelfth Division in CA-G.R. SP No. 42512 was explicit in stating thus:

x x x Any decision of ours will not produce any practical legal effect. According to the petitioner, if we annul
the questioned Orders, the dismissal of its Complaint by the trial [court] will have to be set aside in its pending
appeal. That assumes that the division handling the appeal will agree with Our decision. On the other hand, it
may not. Also other issues may be involved therein than the validity of the herein questioned orders.

We cannot pre-empt the decision that might be rendered in such appeal. The division to [which] it has been
assigned should be left free to resolve the same. On the other hand, it is better that this Court speak with one
voice.36

This Court in G.R. No. 133145 also clearly stated that:

x x x First, it should be stressed that the said Petition (CA-G.R. SP No. 42512) sought to set aside only the two
interlocutory RTC Orders, not the December 3, 1996 Resolution dismissing the Complaint. Verily, the Petition
could not have assailed the Resolution, which was issued after the filing of the former.

Under the circumstances, granting the Petition for Certiorari and setting aside the two Orders are manifestly
pointless, considering that the Complaint itself had already been dismissed. Indeed, the reversal of the assailed
Orders would have practical effect only if the dismissal were also set aside and the Complaint reinstated. In
other words, the dismissal of the Complaint rendered the Petition for Certiorari devoid of any practical value.

Second, the Petition for Certiorari was superseded by the filing, before the Court of Appeals, of a subsequent
appeal docketed as CA-G.R. CV No. 57119, questioning the Resolution and the two Orders. In this light, there
was no more reason for the CA to resolve the Petition for Certiorari.

xxxx

In this case, the subsequent appeal constitutes an adequate remedy. In fact, it is the appropriate remedy, because
it assails not only the Resolution but also the two Orders.

xxxx

WHEREFORE, the Petition is DENIED and the assailed Resolutions AFFIRMED. x x x.37

With the pronouncements of the CA in CA-G.R. SP No. 42512 and by this Court in G.R. No. 133145 that the
subsequent appeal via CA-G.R. CV No. 57119 constitutes as the adequate remedy to resolve the validity of the
RTC Orders dated September 17, 1996 and November 14, 1996, the arguments of petitioners on this point
clearly have no leg to stand on and must therefore fail.
On the second issue, the Court finds that the CA was correct in remanding the case to the RTC and ordering the
deposition-taking to proceed.

A deposition should be allowed, absent any showing that taking it would prejudice any party.38 It is accorded a
broad and liberal treatment and the liberty of a party to make discovery is well-nigh unrestricted if the matters
inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith and within the
bounds of law.39 It is allowed as a departure from the accepted and usual judicial proceedings of examining
witnesses in open court where their demeanor could be observed by the trial judge, consistent with the principle
of promoting just, speedy and inexpensive disposition of every action and proceeding;40 and provided it is taken
in accordance with the provisions of the Rules of Court, i.e., with leave of court if summons have been served,
and without such leave if an answer has been submitted; and provided further that a circumstance for its
admissibility exists (Section 4, Rule 23, Rules of Court).41 The rules on discovery should not be unduly
restricted, otherwise, the advantage of a liberal discovery procedure in ascertaining the truth and expediting the
disposal of litigation would be defeated.42

Indeed, the importance of discovery procedures is well recognized by the Court. It approved A.M. No. 03-1-09-
SC on July 13, 2004 which provided for the guidelines to be observed by trial court judges and clerks of court in
the conduct of pre-trial and use of deposition-discovery measures. Under A.M. No. 03-1-09-SC, trial courts are
directed to issue orders requiring parties to avail of interrogatories to parties under Rule 45 and request for
admission of adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other
measures under Rule 27 and 28 within 5 days from the filing of the answer. The parties are likewise required to
submit, at least 3 days before the pre-trial, pre-trial briefs, containing among others a manifestation of the
parties of their having availed or their intention to avail themselves of discovery procedures or referral to
commissioners.43

Since the pertinent incidents of the case took place prior to the effectivity of said issuance, however, the
depositions sought by LCDC shall be evaluated based on the jurisprudence and rules then prevailing,
particularly Sec. 1, Rule 23 of the 1997 Rules of Court which provides as follows:

SECTION 1. Depositions pending action, when may be taken.--- By leave of court after jurisdiction has been
obtained over any defendant or over property which is the subject of the action, or without such leave
after an answer has been served, the testimony of any person, whether a party or not, may be taken, at
the instance of any party, by deposition upon oral examination or written interrogatories. The attendance
of witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall be taken only
in accordance with these Rules. The deposition of a person confined in prison may be taken only by leave of
court on such terms as the court prescribes. (Emphasis supplied).

As correctly observed by the CA, LCDC complied with the above quoted provision as it made its notice to take
depositions after the answers of the defendants have been served. LCDC having complied with the rules then
prevailing, the trial court erred in canceling the previously scheduled depositions.

While it is true that depositions may be disallowed by trial courts if the examination is conducted in bad faith;
or in such a manner as to annoy, embarrass, or oppress the person who is the subject of the inquiry, or when the
inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege,44 such
circumstances, however are absent in the case at bar.

The RTC cites the delay in the case as reason for canceling the scheduled depositions. While speedy disposition
of cases is important, such consideration however should not outweigh a thorough and comprehensive
evaluation of cases, for the ends of justice are reached not only through the speedy disposal of cases but more
importantly, through a meticulous and comprehensive evaluation of the merits of the case.45 Records also show
that the delay of the case is not attributable to the depositions sought by LCDC but was caused by the many
pleadings filed by all the parties including petitioners herein.
The argument that the taking of depositions would cause unnecessary duplicity as the intended deponents shall
also be called as witnesses during trial, is also without merit.

The case of Fortune Corp. v. Court of Appeals46 which already settled the matter, explained that:

The availability of the proposed deponent to testify in court does not constitute "good cause" to justify the
courts order that his deposition shall not be taken. That the witness is unable to attend or testify is one of the
grounds when the deposition of a witness may be used in court during the trial. But the same reason cannot be
successfully invoked to prohibit the taking of his deposition.

The right to take statements and the right to use them in court have been kept entirely distinct. The utmost
freedom is allowed in taking depositions; restrictions are imposed upon their use. As a result, there is accorded
the widest possible opportunity for knowledge by both parties of all the facts before the trial. Such of this
testimony as may be appropriate for use as a substitute for viva voce examination may be introduced at the trial;
the remainder of the testimony, having served its purpose in revealing the facts to the parties before trial, drops
out of the judicial picture.

x x x [U]nder the concept adopted by the new Rules, the deposition serves the double function of a method of
discovery - with use on trial not necessarily contemplated - and a method of presenting testimony. Accordingly,
no limitations other than relevancy and privilege have been placed on the taking of depositions, while the use at
the trial is subject to circumscriptions looking toward the use of oral testimony wherever practicable.47

Petitioner also argues that LCDC has no evidence to support its claims and that it was only after the filing of its
Complaint that it started looking for evidence through the modes of discovery.

On this point, it is well to reiterate the Courts pronouncement in Republic v. Sandiganbayan48:

What is chiefly contemplated is the discovery of every bit of information which may be useful in the
preparation for trial, such as the identity and location of persons having knowledge of relevant facts; those
relevant facts themselves; and the existence, description, nature, custody, condition, and location of any books,
documents, or other tangible things. Hence, "the deposition-discovery rules are to be accorded a broad and
liberal treatment. No longer can the time-honored cry of fishing expedition serve to preclude a party from
inquiring into the facts underlying his opponents case. Mutual knowledge of all the relevant facts gathered by
both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever
facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the
disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility, of
surprise.49

It also does not escape this Courts attention that the trial court, before dismissing LCDCs complaint, gave
LCDC two options: (a) enter into a pre-trial conference, advising LCDC that what it would like to obtain at the
deposition may be obtained at the pre-trial conference, thus expediting early termination of the case; and (b)
terminate the pre-trial conference and apply for deposition later on. The trial court erred in forcing LCDC to
choose only from these options and in dismissing its complaint upon LCDCs refusal to choose either of the
two.

The information LCDC seeks to obtain through the depositions of Elena Sy, the Finance Officer of Hyatt and
Pacita Tan Go, an Account Officer of RCBC, may not be obtained at the pre-trial conference, as the said
deponents are not parties to the pre-trial conference.

As also pointed out by the CA:

x x x To unduly restrict the modes of discovery during trial, would defeat the very purpose for which it is
intended, as a pre-trial device. By then, the issues would have been confined only on matters defined during
pre-trial. The importance of the modes of discovery cannot be gainsaid in this case in view of the nature of the
controversy involved and the conflicting interest claimed by the parties.50

Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the
purpose of disclosing the real matters of dispute between the parties and affording an adequate factual basis
during the preparation for trial.51

Further, in Republic v. Sandiganbayan52 the Court explained that:

The truth is that "evidentiary matters" may be inquired into and learned by the parties before the trial. Indeed, it
is the purpose and policy of the law that the parties - before the trial if not indeed even before the pre-
trial - should discover or inform themselves of all the facts relevant to the action, not only those known to
them individually, but also those known to their adversaries; in other words, the desideratum is that civil
trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the
deposition- discovery mechanism set forth in Rules 24 to 29. The experience in other jurisdictions has been the
ample discovery before trial, under proper regulation, accomplished one of the most necessary ends of modern
procedure; it not only eliminates unessential issues from trials thereby shortening them considerably, but also
requires parties to play the game with the cards on the table so that the possibility of fair settlement before trial
is measurably increased.

As just intimated, the deposition-discovery procedure was designed to remedy the conceded inadequacy and
cumbersomeness of the pre-trial functions of notice-giving, issue-formulation and fact revelation theretofore
performed primarily by the pleadings.

The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial
hearing under Rule 20, to narrow and clarify the basic issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The evident purpose is, to repeat, to enable the parties, consistent
with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before civil trials and
thus prevent that said trials are carried on in the dark.53 (emphasis supplied)

In this case, the information sought to be obtained through the depositions of Elena and Pacita are necessary to
fully equip LCDC in determining what issues will be defined at the pre-trial. Without such information before
pre-trial, LCDC will be forced to prosecute its case in the dark --- the very situation which the rules of
discovery seek to prevent. Indeed, the rules on discovery seek to make trial less a game of blind mans bluff and
more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. 54

Considering the foregoing, the Court finds that the CA was correct in remanding the case to the trial court and
ordering the depositions to proceed.

WHEREFORE, the petition is denied for lack of merit.

Costs against petitioner.

SO ORDERED.

G.R. No. 130243 October 30, 1998

ROBERTO DELA TORRE, EDWIN A. DACANAY, AGNES S. CRUZ, VICKY P. VELASQUEZ,
PEPITA J. JUNTADO, RAMON STO. DOMINGO, NAPOLEON E. ESPIRAS, HONESTO D. DELA
CRUZ, ARTURO R. REGINO, JR., GERARDO R. REAMICO, ANTONIO A. FERRER, JR., MARIVIC
NORELLA, NELSON R. AVILA, DANILO A. AVILA, MARILOU FRIAS, AIDA B. CASTRO,
FERNANDO B. MONTEMAYOR, JAIME G. VELASCO, JR., EDUARDO LAGO, ELIZABETH M.
SABEROLA, FELIXBERTO BOJO, VILLA O. RULLAN, MELENDRINA P. SIMON, ALAN M.
SANTOS, JOSE T. LAYNESA, AGNES R. TABUCOL, AGUSTINE IMBANG JR., REX TEJARES,
CONSOLACION P. ADARAYAN, ELIZAR H. RONDA, EMMA B. DE GUZMAN, ANAFE F.
BAARDE, EFREN A. MINAS, LEONARDA FERMIN, EMELDA, ALTUBAR, BIENVENIDO B.
TIBERIO, MILA P. ROY, ANTONIO R. PADERO, SOCORRO O. DAVID, REYNALDO O. DAVID,
LEONILA M. LAPID, BENJAMIN F. LAPUZ, ARMANDO O. RIVERA, JUDITH T. BATE, EFREN DE
OCAMPO, EDGAR P. VELA, CONRADA L. BULASA, CELSO R. MENDOZA, NENITA P.
NORIEGA, CARLITO S. IDAGO, JR., LIBERTO A. SARMIENTO, NORMA L. CANSINO, JAIME L.
CANSINO, JR., LUCIANO T. DE LA CRUZ, DIONEDO M. GALERO, AUREA BENDANO, DANILO
F. GARCIA, BUENAVENTURA FRANCIA, MARIETTA A. JOSE, FELIPE O. CANUTO, JR.,
JOAQUIN F. GABALDON, SR., ARSENIA DE MANUEL, FELY G. PABILLO, ANTONIO
MANGALINAO, JESUS MAGAYON, PETER MENES, RUBEN B. CERVANTES, JIMMY S. DELA
CRUZ, BENILDA C.M. DELA CRUZ, SALVADOR MALLORCA, JAIME SANCHEZ, JUANITA
SANCHEZ, FLORA N. MESA, ROMEO C. ALMOJUELA, MARCOS DONESA, MA. NELIA G.
LOMIBAO, ROMULO J. TAGARINO, DIONISIO ENANO, JR., ERIBERTO T. PIOQUID, RODRIGO
M. ALVARAN, LOLITA C. BAUTISTA, ALILY N. NABONG, EVELYN V. DASECO, ROSARIO
MARTINEZ, CARMELITA G. FLORES, CHRISTIAN C. CORTES, ULDARICO AGANG, FELIX G.
SALUDARES, RUBEN ALVARAN, CORAZON V. NEBRES, ERNESTO G. DIOLAN, AMELIA D. DE
MESA, JOSEPH R. JACINTO, VILLETO O. RULLAN, ERNESTO T. ESPANILLA, EDDE REY M.
ADRIANO, VICENTE I. SALIGUMBA, NATHANIEL E. DADULA, AMIEL ISLA, NESTOR RODA,
ELITO A. COMAR, CORAZON E. BILBAO, DANILO DIZON, WILFREDO REGONDOLA, GIL
SIMON, TIMOTEO SILVANO, YRURITO J. YRAC, MINDA P. ROS, CORAZON S. FAJUTRAO,
HILDA P. POSADAS, RAMIR TOMAS BARTULABA, MARICRIS GERONIMO, LAUREANA A.
GERONIMO, ARLENE B. SOLIS, PANCRACIO P. SIMENE, CATALINO DILAO, MAXIMO DILAO,
JIMMY S. VALE, VIRGINIA P. SAN MIGUEL, BEATO ARNESTO, REBECCA A. JIMENEZ,
ALFREDO Y. GASTARDO, RODOLFO L. YACAP, BAYANI NAZAIRE, LOIDA A. AGUILAR,
MYRNA A. SISAYAN, SUSANA GLORIA, ROSARIO URETA, JOEBEL J. RIEGO DE DIOS,
JACINTO ANGELES, MERCIDITA M. ANCAYAN, DAVID ANTONY ROXAS, ZENAIDA G. DELA
CRUZ, SALVACION A. ILAGAN, ELENA SUMANG, TERESITA S. FAR, SATURNINO S.
MAGLANA, EDUARDO P. LUMBOY, RUBEN Y. ARNANTE, ERLINDA B. DILAO, LETICIA C.
DECANO, BENITO P. PARMAN, ESTHER CONDALOR, RONALD C. CABACUNGAN, BALTAZAR
V. ESTRELLES, ELVIRA MAPLE, REGINALDO R. RAYNES, ARIEL R. RAYNES, MARILYN C.
FLOTILDES, OFELIA M. LIAO, FERNANDO PEA, JAIME GARLITOS, CARMEN A. HERRERA,
ANGELITA E. BARIZO, RAMONSITO SANTOS, TEODORICO EGUIRA, PRECILLA DOLORIEL,
JOEL FRANCISCO B. PAJARILLO, HERMINIO P. ELEN, ROGER GUTIERREZ, TEOTIMO
ORNOPIA, VILMA ORNOPIA, EMILIANA S. GONZALES, ANTHONY CALICA, NOEL PASTERA,
LEONCIA MARTINEZ, ZENAIDA C. GARCERA, RELIE D. CANLAS, JULIETA CALETA, FELIX
CORDOVA, RODRIGO PISCOS, MARINA A. OLIVEROS, THELMA C. GRECIA, ORENCIO C.
ATONDO, EVELYN EVA CORREA, RIZALETA S. ABCEDE, MARIO L. LIPURA, BENJAMIN P.
LORENZO, ELIZAR A. MONZALES, MELINDA O. LARAYA, LOURDES M. LARAYA, MA.
CECILIA BADAGUAS, ARNOLD L. BRILLO, GILBERT ONG, ERLINDA M. BAGSIC, DOMINADOR
L. ONG, NEPOMUCENO I. MANUEL, JOSEFINO D. PULIDO, NORMA A. LOPEZ, BALTAZAR M.
BAYUBAY, ARACELI ADATO, CARLITA LARAYA, JAIME G. LATAGAN, DELIA M. AQUINO,
EMILYN C. COOTAUCO, FLORIDA E. JOSE, C. COOTAUCO, ALEX C. SAMORTIN, PRECILLA D.
GARCIA, ALEXANDER B. MAGDARAOG, ALFON R. IBO, JR., TITO M. SEVILLENA, AHITO C.
WERLITO, ZOSIMA T. MALAGA, RIZALDY P. SANTOS, YOLANDA S. BARAYOGA, TERESITA
DALAGAN, CECILIA VALENZUELA, JULIO M. GONZALES, CONCHITA E. DADULA, FEDERICO
B. DUNGCA, ROSITO M. STA. RITA, MILAGROS PARAS, AURORA G. SERRANO, LEONILA J.
OMOS, IGMEDIO T. CORTES, MYRNA S. ELON, GERONIMO C. ESTRELLA, SEVILLANO JORE,
LETICIA DELOS REYES, TEODORA C. PAKINGGAN, SABINA C. MORENO, ALFREDO
SANTOS, ARSENIA FELIZARDO, LOURDES ALCANTARA, BENJAMIN P. CATAP, HELEN B.
OLIDELES, SUSANA C. TABI, GILBERT F. TABI, and CREISTETA V. ILAO, petitioners,
vs.
PEPSI COLA PRODUCTS, PHILS., INC. and PEPSICO INC., respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision, dated August 8, 1997, of the Court of
Appeals, which affirmed the dismissal by the Regional Trial Court of Makati City of the complaint filed
by the petitioners against private respondents Pepsi Cola Products Phils., Inc. (PCPPI) and Pepsico,
Inc. (PI) on the ground of refusal to make discovery.

The facts of the instant case are as follows:

Petitioners are holders of softdrink bottle caps bearing the number 349, allegedly a winning digit in a
contest sponsored by respondents PCPPI and PI to promote their beverage products. Respondent
PCPPI is a domestic corporation engaged in the production, bottling, and distribution of carbonated
drinks, while private respondent PI, a foreign corporation licensed to do business in the Philippines, is
the major stockholder of respondent PCPPI.

Due to the refusal of respondents PCPPI and PI to deliver the prizes, petitioners on August 24, 1994
filed eight (8) separate complaints against the former for specific performance and damages in the
Regional Trial Court of Makati City. Respondent PI filed answers to the complaints of petitioners,
while respondent PCPPI filed motions to dismiss the same on the grounds of failure to state a cause
of action and forum shopping. The cases were later consolidated and assigned to Branch 142 of the
trial court. Petitoners likewise filed separate motions for authority to litigate in forma pamperis.

On November 22 and 23, 1994, respondent PI sent written interrogatories to petitioners consisting of
59 questions aimed at determining their eligibility to litigate as paupers. Petitioners received the
written interrogatories between November 23 and December 12, 1998. The following are typical of
the questions included in the interrogatories:

1) Are you employed?

2) If you are employed,

a) who is your employer?

b) what position do you hold in your present

employment?

c) what is your annual gross compensation for

1993?

d) how long have you been employed with your

present employer?
 3) Are you engaged in any business?

4) If you are engaged in business,

a) what type of business are you engaged in?

b) how long have you been engaged in

business?

c) what is your annual gross income derived

from business for 1993?

xxx xxx xxx

7) Do you own real property?

8) If you own real property,

a) how many and what types of real properties

do you own?

b) where are these real properties located?

c) what is the present market value of each of

these real properties?

d) what is the latest assessed value of each of

these real properties?

xxx xxx xxx

56) What type of dwelling do you live in?

57) If you live in a house, do you own the house?

58) If you are merely renting your dwelling, how much is your and monthly rent?

59) If you are without viable means of income, how are you and your family being
financially supported? 1

On November 25, 1994, the Regional Trial Court of Makati issued an order suspending the
proceedings until petitioners could complete the documents required for establishing their right to
litigate as paupers.

It appeals that petitioners did not answer the written interrogatories because, as it turned out, they
thought that the order of the court suspended all matters connected with the case except those
relating to the submission of the papers showing their qualifications to litigate as paupers.
Respondent PI filed a motion to dismiss the case on the ground of refusal of petitioners to make
discovery. Petitioners opposed the motion. In an order, dated March 9, 1995, the trial court granted
the motion to dismiss stating:
 There is nothing in the order which authorized plaintiffs to ignore the interrogatories
served upon them. For that matter, the answers required would reflect as to whether
they are entitled to litigate as paupers, the issue which the court directed the parties to
clarify within thirty (30) days. The sanctions on the party who refuses to make discovery
are clear in the rules as well as in the applicable case law. There is absolutely no
reason why plaintiffs should be excused therefrom.2

Petitioners filed a motion for reconsideration but the trial court denied their motion in an order, dated
June 16, 1995. They then filed a special civil action for certiorari in this Court to set aside the
aforesaid orders of the trial court. The case was referred to the Court of Appeals, which on August 8,
1997, affirmed the orders of the Regional Trial Court.3 The appellate court held:

Undoubtedly, the petitioners' failure to serve their answers within the

reglementary period constitutes a valid ground for the dismissal of their actions
or any part thereof.

While it is true that aside from the dismissal of the actions, there are other
sanctions that may be imposed for failure of a party to serve answers to
interrogatories, however, since respondents are precisely seeking the dismissal
of the complaints because of the petitioners' non-compliance with all the
requirements that would entitle them to litigate as paupers, such failure justifies
the action taken by the court a quo, which had previously required the parties to
"perfect their pleadings." Needless to state, by not answering the interrogatories,
the petitioners rendered it difficult for respondent Pepsico to substantiate its
opposition to their request to litigate as paupers, as directed by the court a quo.

At any rate, the dismissal ordered by the court a quo is without prejudice, thus
implicitly reserving the petitioners' right to further pursue their cases.4

Hence, this petition for review on certiorari tendering the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED GRAVE

ERROR IN NOT CONSIDERING THAT THE REMEDY OF DISMISSAL UPON
FAILURE OF A PARTY TO SERVE ANSWERS TO INTERROGATORIES IS
AVAILABLE OR MAY BE RESORTED TO ONLY WHEN THE SUBJECT MATTER
THEREOF REFERS TO THE VERY MERITS OF THE CASE.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED GRAVE

ERROR IN NOT CONSIDERING THAT THE PETITIONERS HAD SUBSTANTIALLY
COMPLIED WITH THE REQUIREMENTS ON WRITTEN INTERROGATORIES.

We find the instant petition to be well taken, but first we shall dispose of the procedural
objections raised by respondents PCPPI and PI, to wit: (1) that the instant petition is not
accompanied by a sworn certification on non-forum shopping as required by Rule 45, 4 of
the 1997 Rules of Civil Procedure and (2) that the said petition raises a question of fact which
cannot be dealt with in a petition for review on certiorari under 1 of the said rule.

With respect to the first objection, contrary to the claim of respondents, there is attached to
the petition a sworn certification, dated October 2, 1997, executed by Jaime Garlitos (one of
the petitioners herein), stating that:
 3. No other action or proceeding involving the same issues have been
commenced with this Honorable Supreme Court, the regular courts, the
Honorable Court of Appeals, or any other tribunal or agency.

4. To the best of my knowledge, no such action or proceeding is pending before

this Honorable Supreme Court, the regular courts, the Honorable Court of
Appeals, or any other tribunal or agency.

5. If I should thereafter learn that a similar action or proceeding has been filed or
is pending before this Honorable Supreme Court, the regular courts, the
Honorable Court of Appeals, or any other tribunal or agency, I hereby undertake
to report that fact to this Honorable Supreme Court within five (5) days from
having gained knowledge
thereof.5

This is sufficient compliance with Rule 45, 4 of the 1997 Rules of Civil Procedure.

On the contention that the instant petition raises a question of fact, we hold that the question
raised is a question of law, tested by the standards laid down in Ramos v. Pepsi-Cola Bottling
Co. of the P.I.,6 recently affirmed in Macawiwili Gold Mining and Development Co., Inc. v.
Court of Appeals:7

. . . there is a question of law in a given case when the doubt or difference arises
as to what the law is on a certain set of facts; there is a question of fact when the
doubt or difference arises as to the truth or falsehood of the alleged facts.

For the question in this case is whether petitioners' failure to answer written interrogatories is
a sufficient reason for the dismissal of their complaints. The resolution of this question does
not depend on the evaluation of proof but on a consideration of the applicable legal
provisions and case law.

It is time to move on to the substantive issues in this case.

Under Rule 24, 1 and Rule 25, 1 of the 1964 Rules of Court, a litigant may serve, with leave
of court and after jurisdiction has been obtained over the defendant or, even without such
leave, after an answer has been served, written interrogatories on the adverse party. Like the
other modes of discovery authorized by the Rules of Court, the purpose of written
interrogatories is to assist the parties in clarifying the issues and in ascertaining the facts
involved in a case. As this Court explained in Republic v. Sandiganbayan:8

What is chiefly contemplated is the discovery of every bit of information which

may be useful in the preparation for trial, such as the identity and location of
persons having knowledge of relevant facts; those relevant facts themselves; and
the existence, description, nature, custody, condition, and location of any books,
documents, and other tangible things.

To ensure the efficacy of the various modes of discovery, the Rules provide sanctions against
a party who refuses to make discovery. Rule 29, 5 for example states:

If any party or an officer or managing agent of a party wilfully fails to appear

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

This Court has upheld the dismissal of an action due to the refusal of the plaintiff to make
discovery. In Arellano v. Court of First Instance of
Sorgon, 9 it affirmed the dismissal of a suit for reconveyance of a parcel of land with a claim
for damages when the plaintiff unjustifiably failed to answer the written interrogatories sent by
the defendant regarding the alleged title of the former. However, the determination of the
sanction a court should impose for the failure of a party to comply with the modes of
discovery rests on sound judicial discretion. As we said in Insular Life Assuarance Co., Ltd. v.
Court of Appeals.

The matter of how, and when, the above sanctions should be applied is one that
primarily rests on the sound discretion of the court where the case pends, having
always in mind the paramount and overriding interest of justice. For while the
modes of discovery are intended to attain the resolution of litigations with great
expediency, they are not contemplated, however, ultimately to be of injustice. It
behooves trial courts to examine well the circumstance of each case and to make
their considered determination thereafter.

In the case at bar, we think the trial court was rather precipitate in dismissing the complaints
of petitioners against respondents PCPPI and PI.

The written interrogatories served by respondent PI on petitioners dealt with ancillary matters
which, although may be inquired into through the proper modes of discovery provided in the
Rules of Court, are not directly related to the main issues in the suit. As already mentioned,
the written interrogatories sent by respondent PI to petitioners were for the purpose of finding
out if the latter were entitled to litigate as paupers, that is, whether they should be exempted
from paying docket fees.

Since the payment of docket fees is jurisdictional, 11 respondent PI was certainly entitled to
know whether petitioners were eligible to litigate as paupers. The fact that petitioners later
submitted affidavits, documents, and other supporting papers on this matter did not justify
their failure to answer the written interrogatories since at the time these were served,
respondent PI obviously did not have the information contained in the said documents.
However, since after all respondent PI was able to get the information it needed, the dismissal
of petitioners' complaints appears to be rather a drastic action to take for failure to answer
questions dealing with ancillary matters and not with the main issues in a case.

Furthermore, it appears that petitioners' failure to answer the written interrogatories was due,
not to, intransigence, but to a misapprehension of the scope of the trial court's order, dated
November 25, 1994, suspending the proceedings until petitioners could complete the
documents required for establishing their eligibility to litigate as paupers. Petitioners thought
that the court's order had the effect of suspending all other matters connected with the case,
including the service of answers to the written interrogatories of private respondent PI and for
this reason did not respond to the same. Unlike the plaintiff in Arellano v. Court of First
Instance of Sorsogon,12 who deliberately disregarded successive orders of the trial court to
explain his refusal to make discovery, there is no showing in the case at bar that petitioners
were guilty of defying or disregarding any court order to answer the written interrogatories of
respondent PI in order to delay the proceedings.

It is of course true that written interrogatories may be sent to adverse parties and answered by
the latter without court intervention. Orders of the court do not affect ongoing processes of
discovery between the parties, unless the same expressly so provide.

It would be unjust, however, to impose on petitioners such a drastic sanction as the dismissal
of their complaints for a mistake committed in good faith. In lnsular Life Assurance Co., Ltd. v.
Court of Appeals,13 where the plaintiffs did not answer the written interrogatories sent by the
defendant on account of a misconception as to the scope thereof, we excused plaintiffs'
failure through a liberal application of Rule 29, 45 of the 1964 Rules of Court. We believe that
the circumstances in the instant case similarly warrant a benign attitude towards petitioners'
failure to answer the written interrogatories. Hence, petitioners should be given a chance to
substantiate in court their claim against private respondents PCPPI and PI.

The trial court should have required petitioners to answer the subject interrogatories, with a
warning of the possible consequences if they did not comply. The dismissal of their action
would be justified only in the event they bucked such an order.

WHEREFORE, the decision of the Court of Appeals is REVERSED and the case is REMANDED
to the Regional Trial Court of Makati, Branch 142 for trial according to law.

SO ORDERED.

G.R. No. 133154 December 9, 2005

JOWEL SALES, Petitioner,

vs.
CYRIL A. SABINO, Respondent.

DECISION

GARCIA, J.:

Assailed and sought to be set aside in this petition for review on certiorari under Rule 45 of the Rules of Court
are the following issuances of the Court of Appeals (CA) in CA-G.R. SP No. 44078, to wit:

1. Decision1 dated January 20, 1998, affirming an earlier order of the Regional Trial Court, Branch 152,
National Capital Judicial Region, which admitted the deposition of one Buaneres Corral as part of respondents
evidence in an action for damages; and

2. Resolution2 dated March 22, 1998, denying petitioners motion for reconsideration.

Briefly, the facts may be stated as follows:

On February 20, 1995, in the Regional Trial Court (RTC) at Pasig City, Metro Manila, herein respondent Cyril
A. Sabino filed an amended complaint3 for damages against, among others, herein petitioner Jowel Sales, driver
of the vehicle involved in the accident which ultimately caused the death of respondents son, Elbert.
Before any responsive pleading could be filed, respondent, as plaintiff a quo, notified the defendants that he will
take the deposition of one Buaneres Corral before the Clerk of Court, RTC- Pasig City.

On December 27, 1995 and resumed on January 3, 1996, the deposition on oral examination of Buaneres Corral
was taken before the Clerk of Court of Pasig, in the presence and with the active participation of petitioners
counsel, Atty. Roldan Villacorta, who even lengthily cross-examined the deponent. In the course of trial,
respondent had the deposition of Buaneres Corral marked as her Exhibits "DD"4 and "EE"5 , with submarkings.

Upon conclusion of her evidentiary presentation, respondent made a Formal Offer of Exhibits,6 among which
are Exhibits "DD" and "EE". Likewise offered in evidence as Exhibit "BB"7 is a certification from the Bureau
of Immigration attesting to the May 28, 1996 departure for abroad of Buaneres Corral via Flight No. PR 658.

Petitioner opposed the admission of Exhs. "DD" and "EE" and even asked that they be expunged from the
records on the ground that the jurisdictional requirements for their admission under Section 4, Rule 23 of the
Rules of Court, infra, were not complied with. He also downplayed the evidentiary value of Exhibit "BB" for
reasons he would repeat in this petition.

In its order of February 3, 1997,8 the trial court admitted, among other evidence, respondents Exhibits "DD",
"EE" and "BB". With his motion for reconsideration9 having been denied by the court in its subsequent order of
March 25, 1997,10 petitioner went on certiorari to the Court of Appeals in CA-G.R. SP No. 44078, imputing
grave abuse of discretion on the part of the trial court in admitting in evidence the deposition in question
(Exhibits "DD" and "EE").

As stated at the threshold hereof, the appellate court, in the herein assailed decision dated January 20, 1998,11
upheld the trial court and effectively denied due course to and dismissed petitioners recourse, explaining, inter
alia, that petitioners active participation, through counsel, during the taking of subject deposition and adopting
it as his own exhibits, has thereby estopped him from assailing the admissibility thereof as part of respondents
evidence. His motion for reconsideration having been denied by the appellate court in its equally assailed
resolution of March 22, 1998, petitioner is now with us via the instant petition, raising the following issues of
his own formulation:

1. Whether or not the requirements of Section 4, Rule 24 (now Section 3) of the Revised Rules of Court were
satisfied by the respondent when it presented a certification attesting to the fact that deponent has left the
country but silent as to whether or not at the time his deposition was offered in evidence is in the Philippines

2. Whether or not the petitioner in cross-examining the deponent during the taking of his deposition waived any
and all objections in connection therewith.12

The petition lacks merit.

Section 4, Rule 2313 of the Rules of Court, upon which petitioner mounts his challenge to the admission in
evidence of the subject deposition, pertinently reads:

SEC. 4. Use of depositions.- At the trial . . . any part or all of a deposition, so far as admissible under the rules
of evidence, may be used against any party who was present or represented at the taking of the deposition or
who had due notice thereof, in accordance with any of the following provisions:

xxx xxx xxx

(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 exception circumstances exist 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 supplied).

It is petitioners posture that none of the above conditions exists in this case to justify the admission in evidence
of respondents Exhibits "DD" and "EE". Hence, it was error for the appellate court to have upheld the
admission thereof by the trial court. Discounting the probative value of the certification from the Bureau of
Immigration (Exh. "BB") that deponent Buaneres Corral departed for abroad on May 28, 1996, petitioner argues
that said certification merely proves the fact of Corral having left the country on the date therein mentioned. It
does not, however, establish that he has not returned since then and is unavailable to be present in court to
personally testify.

While depositions may be used as evidence in court proceedings, they are generally not meant to be a substitute
for the actual testimony in open court of a party or witness. Stated a bit differently, a deposition is not to be used
when the deponent is at hand.14 Indeed, any deposition offered during a trial to prove the facts therein set out,
in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground
of hearsay. However, depositions may be used without the deponent being called to the witness stand by the
proponent, provided the existence of certain conditions is first satisfactorily established. Five (5) exceptions for
the admissibility of a deposition are listed in Section 4, Rule 23, supra, of the Rules of Court. Among these is
when the witness is out of the Philippines.

The trial court had determined that deponent Bueneres Corral was abroad when the offer of his deposition was
made. This factual finding of absence or unavailability of witness to testify deserves respect, having been
adequately substantiated. As it were, the certification by the Bureau of Immigration Exh. "BB"- provides that
evidentiary support. Accordingly, the attribution of grave abuse of discretion on the part of the trial court must
be struck down. It has been said to be customary for courts to accept statements of parties as to the
unavailability of a witness as a predicate to the use of depositions.15 Had deponent Buaneres Corral indeed
returned to the Philippines subsequent to his departure via Flight No. PR 658, petitioner could have presented
evidence to show that such was the case. As it is, however, the petitioner does not even assert the return as a
fact, only offering it as a possibility since no contrary proof had been adduced.

Given the foregoing perspective, the second issue of whether or not petitioner is estopped from objecting to the
use of Corrals deposition as part of respondents evidence is really no longer determinative of the outcome of
this case, and need not detain us long. Suffice it to state that, as a rule, the inadmissibility of testimony taken by
deposition is anchored on the ground that such testimony is hearsay, i.e., the party against whom it is offered
has no opportunity to cross-examine the deponent at the time his testimony is offered. But as jurisprudence
teaches, it matters not that opportunity for cross-examination was afforded during the taking of the deposition;
for normally, the opportunity for cross-examination must be accorded a party at the time the testimonial
evidence is actually presented against him during the trial or hearing.16 In fine, the act of cross-examining the
deponent during the taking of the deposition cannot, without more, be considered a waiver of the right to object
to its admissibility as evidence in the trial proper. In participating, therefore, in the taking of the deposition, but
objecting to its admissibility in court as evidence, petitioner did not assume inconsistent positions. He is not,
thus, estopped from challenging the admissibility of the deposition just because he participated in the taking
thereof.

Lest it be overlooked, Section 29, Rule 23 of the Rules of Court, no less, lends support to the conclusion just
made. In gist, it provides that, while errors and irregularities in depositions as to notice, qualifications of the
officer conducting the deposition, and manner of taking the deposition are deemed waived if not objected to
before or during the taking of the deposition, objections to the competency of a witness or the competency,
relevancy, or materiality of testimony may be made for the first time at the trial and need not be made at the
time of the taking of the deposition, unless they could be obviated at that point.17

While perhaps a bit anti-climactic to state at this point, certiorari will not lie against an order admitting or
rejecting a deposition in evidence, the remedy being an appeal from the final judgment.18 For this singular
reason alone, the appellate court could have had already dismissed herein petitioners invocation of its
certiorari jurisdiction.

WHEREFORE, the instant petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.