REPUBLIC OF THE PHILIPPINES, (docketed as Civil Case No. 0009) against Jose L. 0130.

. 0009) against Jose L. 0130.7[7] The present respondents were not made
Petitioner, Africa, Manuel H. Nieto, Jr., Ferdinand E. Marcos, parties either in Civil Case No. 0130.
- versus -
Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan
SANDIGANBAYAN (FOURTH DIVISION), JOSE L.
Ponce Enrile, and Potenciano Ilusorio (collectively, I. Civil Case No. 0130
AFRICA (substituted by his heirs), MANUEL H.
NIETO, JR., FERDINAND E. MARCOS (substituted the respondents) for reconveyance, reversion, In the August 7, 1991 PCGG-conducted
by his heirs), IMELDA R. MARCOS, FERDINAND accounting, restitution, and damages before the
R. MARCOS, JR., JUAN PONCE ENRILE, and ETPI stockholders meeting, a PCGG-controlled
Sandiganbayan. The petitioner alleged, inter alia, that
POTENCIANO ILUSORIO (substituted by his board of directors was elected. Later, the registered
heirs), the respondents illegally manipulated the purchase of ETPI stockholders convened a special stockholders
the major shareholdings of Cable and Wireless meeting wherein another set of board of directors was
Respondents.
Limited in Eastern Telecommunications Philippines, elected. As a result, two sets of ETPI board and
DECISION Inc. (ETPI), which shareholdings respondents Jose officers were elected.8[8]
Africa and Manuel Nieto, Jr. held for themselves and,
BRION, J.:
through their holdings and the corporations they Thereafter, Africa, as an ETPI stockholder,
organized, beneficially for respondents Ferdinand E. filed a petition for certiorari, with prayer for a
Before us is the petition for certiorari1[1] filed by
4
Marcos and Imelda R. Marcos. [4] temporary restraining order/preliminary injunction
the Republic of the Philippines (petitioner) to set
with the Sandiganbayan (docketed as Civil Case No.
aside the February 7, 2002 resolution (2002
0130), seeking to nullify the August 5, 1991 and
resolution)2[2] of the Sandiganbayan3[3] denying the
August 9, 1991 Orders of the PCGG. These Orders
petitioners Motion to Admit Supplemental Offer of Civil Case No. 0009 is the main case subject
directed Africa:
Evidence (Re: Deposition of Maurice V. Bane) (3rd of the present petition. Victor Africa (Africa), son of
motion). the late Jose L. Africa, was not impleaded in and [T]o account for his sequestered shares in
so is plainly not a party to Civil Case No. 0009.5[5] ETPI and to cease and desist from
THE ANTECEDENTS
exercising voting rights on the sequestered
shares in the special stockholders meeting to
be held on August 12, 1991, from
Civil Case No. 0009 spawned numerous
On July 22, 1987, the petitioner Republic of representing himself as a director, officer,
incidental cases,6[6] among them, Civil Case No.
the Philippines, through the Presidential Commission employee or agent of ETPI, and from
on Good Government (PCGG), filed a complaint

1 4
2 5 7
3 6 8
 participating, directly or indirectly[,] in the their proxies may vote their Stockholders Meeting for [the] Sole Purpose of
9 corresponding shares.
management of ETPI. [9] Increasing [ETPIs] Authorized Capital Stock (Urgent
The following minimum safeguards Petition). In our May 7, 1996 Resolution, we referred
During the pendency of Africas petition, Civil Case must be set in place and carefully
this Urgent Petition to the Sandiganbayan for
maintained until final judicial
No. 0130, Africa filed a motion with the resolution of the question of reception of evidence and immediate resolution.16[16]
Sandiganbayan, alleging that since January 29, 1988 whether or not the sequestered
The Sandiganbayan included the Urgent Petition
shares of stock (or in a proper case
the PCGG had been illegally exercising the rights of the underlying assets of the in Civil Case No. 0130.17[17]
10
stockholders of ETPI, [10] especially in the election corporation concerned) constitute
ill-gotten wealth[.]12[12]
of the members of the board of directors. Africa In the proceedings to resolve the Urgent
prayed for the issuance of an order for the calling and The PCGG assailed this resolution before Petition, the testimony of Mr. Maurice V. Bane
holding of [ETPI] annual stockholders meeting for this Court via a petition for certiorari docketed as (former director and treasurer-in-trust of ETPI) was
1992 under the [c]ourts control and supervision and G.R. No. 10778913[13] (PCGGs petition), imputing taken at the petitioners instance and after serving
11
prescribed guidelines. [11] grave abuse of discretion on the Sandiganbayan for notice of the deposition-taking on the
18
holding, inter alia, that the registered stockholders of respondents [18] on October 23 and 24, 1996 by
In its November 13, 1992 resolution, the ETPI had the right to vote.14[14] In our November 26, way of deposition upon oral examination (Bane
Sandiganbayan favored Africas motion in this wise: 1992 Resolution, we enjoined the Sandiganbayan deposition) before Consul General Ernesto Castro of
from implementing its assailed resolution. the Philippine Embassy in London, England.

In the meantime, in an April 12, 1993

WHEREFORE, it is ordered that an
annual stockholders meeting of the resolution, the Sandiganbayan ordered the
[ETPI], for 1992 be held on Friday, consolidation of Civil Case No. 0130, among Invoking Section 1, Rule 24 (of the old
November 27, 1992, at 2:00 oclock Rules of Court), purportedly allowing the petitioner
in the afternoon, at the ETPI Board others, with Civil Case No. 0009, with the latter as
Room, Telecoms Plaza, 7th Floor, the main case and the former merely an incident. 15 to depose Bane without leave of court, i.e., as a
316 Gil J. Puyat Avenue, Makati, matter of right after the defendants have filed
Metro Manila. x x x The [15]
stockholders meeting shall be their answer, the notice stated that [t]he purpose of
conducted under the supervision During the pendency of PCGGs petition the deposition is for [Bane] to identify and testify on
and control of this Court, through
Mr. Justice Sabino R. de Leon, Jr. (G.R. No. 107789), the PCGG filed with this Court a the facts set forth in his affidavit 19[19] x x x so as to
[O]nly the registered owners, their Very Urgent Petition for Authority to Hold Special prove the ownership issue in favor of [the petitioner]
duly authorized representatives or

12 16
9 13 17
10 14 18
11 15 19
and/or establish the prima facie factual foundation for board of directors), the Although Civil Case No. 0009 was filed on
Sandiganbayan, in the PCGGs
sequestration of [ETPIs] Class A stock in support of July 22, 1987, it was only on November 29, 1996 and
petition to hold a stockholders
the [Urgent Petition].20[20] The notice also states that meeting (to amend the articles of March 17, 1997 that the first pre-trial conference was
incorporation to increase the
the petitioner shall use the Bane deposition in scheduled and concluded.25[25]
authorized capital stock), again
evidence in the main case of Civil Case No. 0009.21 failed to apply the two-tiered test.
On such determination hinges the
[21] On the scheduled deposition date, only Africa In its Pre-Trial Brief26[26] dated August 30,
validity of the votes cast by the
was present and he cross-examined Bane. PCGG in the stockholders meeting 1996, the petitioner offered to present the following
of March 17, 1997. This lapse by
witnesses:
the Sandiganbayan leaves this
Court with no other choice but to
On December 13, 1996, the Sandiganbayan remand these questions to it for
WITNESSES TO BE
proper determination.
resolved the Urgent Petition by granting authority to PRESENTED AND A
BRIEF DESCRIPTION
the PCGG (i) to cause the holding of a special xxxx
OF THEIR
stockholders meeting of ETPI for the sole purpose of TESTIMONIES
WHEREFORE, this Court
increasing ETPIs authorized capital stock and (ii) to Resolved to REFER the petitions at
(1) Maurice V. Bane
bar to the Sandiganbayan for
vote therein the sequestered Class A shares of stock. 22 representative of
reception of evidence to determine
Cable and Wireless
[22] Thus, a special stockholders meeting was held, whether there is a prima facie
Limited (C & W) at
evidence showing that the
as previously scheduled, on March 17, 1997 and the the time ETPI was
sequestered shares in question are
organized.
increase in ETPIs authorized capital stock was ill-gotten and there is an imminent
danger of dissipation to entitle the
unanimously approved.23[23] From this ruling, Africa xxxx
PCGG to vote them in a
went to this Court via a petition for certiorari24[24] stockholders meeting to elect the
(2) Mr. Manuel H. Nieto
ETPI Board of Directors and to
docketed as G.R. No. 147214 (Africas petition). xxx
amend the ETPI Articles of
Incorporation for the sole purpose
(3) Ms. Evelyn Singson x
of increasing the authorized capital
We jointly resolved the PCGGs and Africas xx
stock of ETPI.
petitions, and ruled: (4) Mr. Severino P. Buan,
The Sandiganbayan shall
Jr. x x x
render a decision thereon within
This Court notes that, like sixty (60) days from receipt of this
in Africas motion to hold a (5) Mr. Apolinario K.
Resolution and in conformity
stockholders meeting (to elect a Medina - x x x
herewith.
(6) Mr. Potenciano A.
20 Roque x x x
21 II. Civil Case No. 0009
22
23 25
24 26
 The respondents filed their respective incident Civil Case Nos. xxx
st 29 0130 xxx, subject to the
Oppositions to the 1 motion; [29] in turn, the
(7) Caesar Parlade - x x x following conditions :
petitioner filed a Common Reply30[30] to these
1. xxx
Oppositions.
IIa. Motion to Admit the Bane Deposition 2. xxx
3. That the said witnesses be
presented in this Court so that they
On April 1, 1998, the Sandiganbayan31[31]
At the trial of Civil Case No. 0009, the can be cross-examined on their
promulgated a resolution32[32] (1998 resolution) particular testimonies in incident
petitioner filed a Motion27[27] (1st motion), stating Civil Cases xxx [by the
denying the petitioners 1st motion, as follows:
that respondents].
1. In the hearings of the incidents of
Wherefore, the [petitioners] Motion
[Civil Case No. 0009], i.e., Civil Case Nos. 0048, IIb. Urgent Motion and/or
x x x is
0050, 0130, 014628[28] the following witnesses were Request for Judicial Notice
1. partly
presented therein: denied insofar as [the
a. Cesar O.V. Parlade petitioner] prays therein to The petitioner did not in any way
adopt the testimonies on oral
b. Maurice Bane question the 1998 resolution, and instead made its
deposition of Maurice V.
c. Evelyn Singson Bane and Rolando Gapud as Formal Offer of Evidence on December 14, 1999.33
d. Leonorio Martinez part of its evidence in Civil
[33] Significantly, the Bane deposition was not
e. Ricardo Castro; and Case No. 0009 for the
f. Rolando Gapud reason that said deponents included as part of its offered exhibits. Rectifying
according to the [petitioner]
the omission, the petitioner filed an Urgent Motion
2. [The petitioner] wishes to adopt are not available for cross-
in [Civil Case No. 0009] their examination in this Court and/or Request for Judicial Notice34[34] (2nd motion)
testimonies and the documentary by the [respondents].
dated February 21, 2000, with the alternative prayer
exhibits presented and identified (emphasis added)
by them, since their testimonies that:
and the said documentary 2. partly Granted, in the
exhibits are very relevant to interest of speedy disposition of
prove the case of the [petitioner] this long pending case, insofar 1. An order forthwith be
in [Civil Case No. 0009]. as plaintiff prays therein to issued re-opening the
adopt certain/particular plaintiffs case and setting the
3. The adverse parties in the testimonies of Cesar O. Parlade, same for trial any day in April
aforementioned incidents had the Evelyn Singson, Leoncio 2000 for the sole purpose of
opportunity to cross-examine Martinez, and Ricardo Castro introducing additional
them. and documentary exhibits which evidence and limited only to
said witnesses have identified in the marking and offering of the
[Bane deposition] which
29 already forms part of the
30
27 31 33
28 32 34
 records and used in Civil Case opportunity to raise objection on plaintiff has already rested its case
No. 0130 x x x; grounds provided by law. as to obviate the further
Definitely, it is not under Article presentation of evidence. It is not
2. In the alternative, x x x the (sic) 129 on judicial notice. even a question of whether the non-
[Sandiganbayan] to take [Emphasis ours] appearing defendants are deemed to
judicial notice of the facts have waived their right to cross-
established by the [Bane examine Bane as to qualify the
deposition], together with the admission of the deposition sans
marked exhibits appended On November 6, 2000 and on several dates
such cross-examination. Indeed,
thereto. [emphasis ours] We do not see any need to dwell on
thereafter, the respondents separately filed their
these matters in view of this Courts
respective demurrers to evidence.36[36] On the other
Resolution rendered on April 1,
hand, the petitioner moved for the reconsideration of 1998 which already denied the
On August 21, 2000, the Sandiganbayan
introduction in evidence of Banes
promulgated a resolution35[35] (2000 resolution) the 2000 resolution, but was rebuffed by the
deposition and which has become
Sandiganbayan in its April 3, 2001 resolution37[37] final in view of plaintiffs failure
denying the petitioners 2nd motion:
to file any motion for
(2001 resolution).
reconsideration or appeal within
the 15-day reglementary period.
Rightly or wrongly, the resolution
IIc. Motion to Admit
Judicial notice is found stands and for this court to grant
Supplemental Offer of
under Rule 129 which is titled plaintiffs motion at this point in
Evidence (Re: Deposition of
What Need Not Be Proved. time would in effect sanction
Maurice Bane)
Apparently, this provision refers to plaintiffs disregard for the rules of
the Courts duty to consider procedure. Plaintiff has slept on its
admissions made by the parties in rights for almost two years and it
On November 16, 2001, the petitioner filed
the pleadings, or in the course of was only in February of 2000 that it
the trial or other proceedings in
rd
its 3 Motion, seeking once more the admission of sought to rectify its ineptitude by
resolving cases before it. The duty filing a motion to reopen its case as
the Bane deposition.38[38] On February 7, 2002
of the Court is mandatory and in to enable it to introduce and offer
those cases where it is (pending resolution of the respondents demurrers to Banes deposition as additional
discretionary, the initiative is upon evidence, or in the alternative for
evidence),39[39] the Sandiganbayan promulgated
the Court. Such being the case, the the court to take judicial notice of
Court finds the Urgent Motion the assailed 2002 resolution,40[40] denying the the allegations of the deposition.
and/or Request for Judicial Notice But how can such a motion be
petitioners 3rd motion. The Sandiganbayan ruled:
as something which need not be granted when it has been resolved
acted upon as the same is as early as 1998 that the deposition
considered redundant. is inadmissible. Without plaintiff
But in the courts view, it is not having moved for reconsideration
really a question of whether or not within the reglementary period, the
On the matter of the [Bane resolution has attained finality
deposition], [its] admission is 36 and its effect cannot be undone by
done through the ordinary 37 the simple expedient of filing a
formal offer of exhibits wherein motion, which though purporting to
38
the defendant is given ample be a novel motion, is in reality a
39 motion for reconsideration of this
35 40
 courts 1998 ruling. [emphases IMPORTANT PIECE OF EVIDENCE 1. It was also already stated in the
ours] FOR THE PETITIONER ON THE
notice (of the taking of the Bane
BASIS OF FLIMSY AND TENUOUS
TECHNICAL GROUNDS. deposition) that it would be used
as evidence in Civil Case No.
The resolution triggered the filing of the The petitioner41[41] argues that the 1998
0009. Notices having been duly
present petition. resolution of the Sandiganbayan is merely an
served on all the parties concerned,
interlocutory order; thus, the petitioners failure to
they must accordingly be deemed
question this 1998 resolution could not have given it
THE PETITION to have waived their right to cross-
a character of finality so long as the main case
examine the witness when they
The petitioner filed the present petition claiming that remains pending.42[42] On this basis, the petitioner
failed to show up.
the Sandiganbayan committed grave abuse of concludes that the Sandiganbayans denial of its 3 rd
discretion:
motion was plainly tainted with grave abuse of
2. The Bane deposition was a very
I. discretion.
vital cog in the case of the
petitioner relative to its allegation
x x x IN HOLDING THAT ITS On the issue of the Sandiganbayans refusal
INTERLOCUTORY ORDER IN that the respondents interest in
(in its 2002 resolution) either to take judicial notice
1998 HAD BECOME FINAL. ETPI and related firms properly
of or to admit the Bane deposition as part of its
belongs to the government.
evidence, the petitioner asserts that Civil Case No.
II.
0130 (where the Bane deposition was originally
3. The non-inclusion of the Bane
taken, introduced and admitted in evidence) is but a deposition in the petitioners formal offer of evidence
was obviously excusable considering the period that
child of the parent case, Civil Case No. 0009; under
x x x IN x x x REFUSING TO ADMIT had lapsed from the time the case was filed and the
THE BANE DEPOSITION WHICH WAS this relationship, evidence offered and admitted in voluminous records that the present case has
ALREADY ADMITTED AS EVIDENCE generated.43[43]
any of the children cases should be considered as
IN AN INCIDENT CASE (CIVIL CASE
NO. 0130) AS PART OF PETITIONERS evidence in the parent case. THE RESPONDENTS
EVIDENCE IN THE MAIN x x x CASE COMMENTS
(CIVIL CASE NO. 0009). and THE PETITIONERS
Lastly, the petitioner claims that given the
REPLY
crucial importance of the Bane deposition, the
Sandiganbayan should not have denied its admission
III.
on flimsy grounds, considering that:

x x x IN REFUSING TO ADMIT A 41
HIGHLY RELEVANT AND 42 43
 In the respondents Comments44[44] (filed its case.48[48] The respondents also advert to the motion for reconsideration. The petitioner generally
rd
in compliance with our Resolution of April 10, belated filing of the petitioners 3 motion i.e., after submits that the dictates of substantial justice should
200245[45]), they claim that the present petition was the respondents had filed their respective demurrers have guided the Sandiganbayan to rule otherwise.
filed out of time - i.e., beyond the 60-day to evidence.
reglementary period prescribed under Section 4, Rule
65 of the Rules of Court. 46[46] This assertion On the petitioners claim of waiver, the
respondents assert that they have not waived their The petitioner also clarifies that it has not
proceeds from the view that the petitioners 3 rd
right to cross-examine the deponent; the yet rested its case although it has filed a formal offer
motion, being a mere rehash of similar motions
Sandiganbayan recognized this right in its 1998 of evidence. A party normally rests his case only
earlier filed by the petitioner, likewise simply assails
resolution and the petitioner never questioned this after the admission of the pieces of evidence he
the Sandiganbayans 1998 resolution. Along the same
recognition. They also assert that the allegations in formally offered; before then, he still has the
line, they posit that the petitioners 3 rd motion actually
the Bane deposition cannot be a proper subject of opportunity to present further evidence to
partakes of a proscribed third motion for
judicial notice under Rule 129 of the Rules of Court. substantiate his theory of the case should the court
reconsideration of the Sandiganbayans 1998
The respondents lastly submit that the Bane reject any piece of the offered evidence.50[50]
resolution.47[47] They likewise assert, on the
assumption that the 1998 resolution is interlocutory deposition is inadmissible in evidence because the

in character, that the petitioners failure to contest the petitioner failed to comply with the requisites for

resolution by way of certiorari within the proper admission under Section 47, Rule 130 of the Rules of
The petitioner further maintains that the
period gave the 1998 resolution a character of Court.
mere reasonable opportunity to cross-examine the
finality. deponent is sufficient for the admission of the Bane
In its Reply,49[49] the petitioner defends the
deposition considering that the deponent is not an
The respondents further claim that after a timeliness of the present petition by arguing that a
ordinary witness who can be easily summoned by our
party has rested its case, the admission of a party may opt to wait out and collect a pattern of
courts in light of his foreign residence, his
supplemental offer of evidence requires the reopening questionable acts before resorting to the
citizenship, and his advanced age. The petitioner
of the case at the discretion of the trial court; the extraordinary remedy of certiorari. The petitioner
asserts that Rule 24 (now Rule 23), and not Section
Sandiganbayan simply exercised its sound discretion stresses that it filed the 3rd motion precisely because
47, Rule 130, of the Rules of Court should apply to
in refusing to reopen the case since the evidence of the Sandiganbayans 2000 resolution, which held
the present case, as explicitly stated in the notice of
sought to be admitted was within the knowledge of that the admission of the Bane deposition should be
the deposition-taking.
the [petitioner] and available to [it] before [it] rested done through the ordinary formal offer of evidence.
Thus, the Sandiganbayan seriously erred in
44
considering the petitioners 3rd motion as a proscribed
45
46 48
47 49 50
 To date, respondents Imelda Marcos and the critical importance of the Bane deposition to
heirs of Potenciano Ilusorio have yet to file their the petitioners cause; and
respective comments on the petition. Given the time In determining the appropriate remedy or

that had lapsed since we required their comments, we iv. In remedies available, a party aggrieved by a court

resolve to dispense with the filing of these comments refusing to admit the Bane deposition order, resolution or decision must first correctly

and to consider this petition submitted for decision. notwithstanding the prior consolidation of identify the nature of the order, resolution or decision
Civil Case No. 0009 and Civil Case No. 0130. he intends to assail.51[51] In this case, we must
THE ISSUES preliminarily determine whether the 1998 resolution
is final or interlocutory in nature.
On the basis of the pleadings, we summarize the
pivotal issues for our resolution, as follows: 3. Whether the Bane deposition
is admissible under -
1. Whether the petition was filed within
Case law has conveniently demarcated the
the required period.
line between a final judgment or order and an
interlocutory one on the basis of the disposition
2. Whether the Sandiganbayan committed i. Rule 23, Section 4, par. (c)
made.52[52] A judgment or order is considered final if
grave abuse of discretion alone or in relation to Section 47, Rule 130 of
the order disposes of the action or proceeding
the Rules of Court; and
completely, or terminates a particular stage of the
same action; in such case, the remedy available to an
i. aggrieved party is appeal. If the order or resolution,
In holding that the 1998 ii. The principle of judicial however, merely resolves incidental matters and
resolution has already attained notice. leaves something more to be done to resolve the
finality; merits of the case, the order is interlocutory 53[53] and
THE COURTS RULING the aggrieved partys remedy is a petition for
ii. certiorari under Rule 65. Jurisprudence pointedly
In holding that the petitioners holds that:
3rd motion partakes of a We deny the petition for lack of merit.
prohibited motion for
As distinguished from a
reconsideration;
I. Preliminary Considerations final order which disposes of the

iii. I (a). The interlocutory nature of the 51

Sandiganbayans 1998 resolution. 52
In refusing to re-open the case given the
53
 subject matter in its entirety or arguments already passed upon and resolved by the
terminates a particular proceeding
court, it cannot be rejected on the ground that it is
or action, leaving nothing else to be
done but to enforce by execution We clarify, too, that an interlocutory order forbidden by the law or by the rules as a prohibited
what has been determined by the remains under the control of the court until the case is motion.57[57]
court, an interlocutory order does
not dispose of a case completely, finally resolved on the merits. The court may
but leaves something more to be therefore modify or rescind the order upon sufficient I (c). The 1998 resolution was not ripe for a
adjudicated upon. The term final
grounds shown at any time before final judgment. 55 petition for certiorari.
judgment or order signifies a
judgment or an order which [55] In this light, the Sandiganbayans 1998 resolution
disposes of the case as to all the Under Section 1, Rule 41 of the Rules of
parties, reserving no further which merely denied the adoption of the Bane
Court, an aggrieved party may appeal from a
questions or directions for future deposition as part of the evidence in Civil Case No.
determination. judgment or final order which completely disposes of
0009 could not have attained finality (in the manner
a case or from an order that the Rules of Court
On the other hand, a court that a decision or final order resolving the case on the
order is merely interlocutory in declares to be appealable. While this provision
character if it leaves substantial merits does) despite the petitioners failure to move
prohibits an appeal from an interlocutory order, the
proceedings yet to be had in for its reconsideration or to appeal.56[56]
connection with the controversy. It aggrieved party is afforded the chance to question an
does not end the task of the court in interlocutory order through a special civil action of
adjudicating the parties contentions
and determining their rights and certiorari under Rule 65; the petition must be filed
I (b). The 3rd motion was not prohibited by the
liabilities as against each other. In Rules. within sixty days from notice of the assailed
this sense, it is basically
provisional in its application.54 judgment, order, resolution, or denial of a motion for
[54] (emphasis supplied) reconsideration.
rd
We also agree with the petitioner that its 3
motion cannot be considered as a proscribed third On the premise that the 1998 resolution is
Under these guidelines, we agree with the (actually second) motion for reconsideration of the interlocutory in nature, the respondents insist that the
petitioner that the 1998 resolution is interlocutory. Sandiganbayans 1998 resolution. As Section 5, Rule 60-day period for filing a petition for certiorari
st
The Sandiganbayans denial of the petitioners 1 37 of the Rules of Court clearly provides, the should be reckoned from the petitioners notice of the
motion through the 1998 Resolution came at a time proscription against a second motion for Sandiganbayans 1998 resolution. They argue that
when the petitioner had not even concluded the reconsideration is directed against a judgment or since this ruling had long been rendered by the court,
presentation of its evidence. Plainly, the denial of the final order. Although a second motion for the petitioners subsequent filing of similar motions
motion did not resolve the merits of the case, as reconsideration of an interlocutory order can be was actually a devious attempt to resuscitate the
something still had to be done to achieve this end. denied on the ground that it is a mere "rehash" of the long-denied admission of the Bane deposition.

55
54 56 57
 was to move for a reconsideration to assert and even dismissed.
clarify its position on the admission of the Bane
We do not find the respondents submission deposition. The petitioner could introduce 60[60] anew
meritorious. While the 1998 resolution is an the Bane deposition and include this as evidence in
interlocutory order, as correctly argued by the Despite this conclusion, however, we opt not
its formal offer61[61] as the petitioner presumably did
petitioner and impliedly conceded by the to immediately dismiss the petition in light of the
in Civil Case No. 0130.
respondents, the claim that the 1998 resolution unique circumstances of this case where the

should have been immediately questioned by the Thus, at that point, the case was not yet ripe petitioner cannot entirely be faulted for not availing

petitioner on certiorari is not totally correct as a for the filing of a petition for certiorari, and the of the remedy at the opportune time, and where the

petition for certiorari is not grounded solely on the denial of the 1st motion could not have been the case, by its nature, is undoubtedly endowed with

issuance of a disputed interlocutory ruling. 58[58] For reckoning point for the period of filing such a public interest and has become a matter of public

a petition for certiorari to prosper, Section 1, Rule 65 concern.63[63] In other words, we opt to resolve the
petition.
of the Rules of Court requires, among others, that petition on the merits to lay the issues raised to rest

neither an appeal nor any plain, speedy and adequate and to avoid their recurrence in the course of
II. The Sandiganbayans ruling on the finality of
remedy in the ordinary course of law is available to its 1998 resolution was legally erroneous but completely resolving the merits of Civil Case No.
did not constitute grave abuse of discretion 0009.
the aggrieved party. As a matter of exception, the writ
of certiorari may issue notwithstanding the existence
Although the word rested nowhere appears
of an available alternative remedy, if such remedy is
In light of the above discussions and in the Rules of Court, ordinary court procedure has
inadequate or insufficient in relieving the aggrieved
conclusions, the Sandiganbayan undoubtedly erred inferred it from an overview of trial sequence under
party of the injurious effects of the order complained
on a question of law in its ruling, but this legal error Section 5, Rule 30 (which capsulizes the order of
of.59[59]
did not necessarily amount to a grave abuse of presentation of a

We note that at the time of its 1 st motion in discretion in the absence of a clear showing that its
action was a capricious and whimsical exercise of partys evidence during trial), read in relation to Rule
Civil Case No. 0009, the petitioner had not yet
judgment affecting its exercise of jurisdiction. 62[62] 18 on Pre-Trial,64[64] both of the Rules of Court.
concluded the presentation of its evidence, much less
Without this showing, the Sandiganbayans erroneous Under Section 5, Rule 30, after a party has adduced
made any formal offer of evidence. At this stage of
legal conclusion was only an error of judgment, or, his direct evidence in the course of discharging the
the case, the prematurity of using the extraordinary
at best, an abuse of discretion but not a grave one. burden of proof,65[65] he is considered to have rested
remedy of certiorari to question the admission of the
For this reason alone, the petition should be his case, and is thereafter allowed to offer rebutting
Bane deposition is obvious. After the denial of the 1 st
motion, the plain remedy available to the petitioner
60 63
58 61 64
59 62 65
evidence only.66[66] Whether a party has rested his appropriate to question on certiorari the deposition as evidence in Civil Case No. 0009 for the
nd
case in some measure depends on his manifestation Sandiganbayans denial of its 2 motion which deponent cannot be cross-examined in court).
in court on whether he has concluded his presentation prayed, inter alia, for the reopening of the case. This Nevertheless, the Sandiganbayan ultimately denied
67
of evidence. [67] is a fatal defect in the petitioners case. the petitioners motion to reopen the case. Having
judicially admitted the resting of its case, the
In its second and third motions, respectively, Although the denial of the petitioners first petitioner should have already questioned the denial
the petitioner expressly admitted that due to motion did not necessitate an immediate recourse to of its 2nd motion by way of certiorari, since the denial
68 nd
oversight, [the petitioner] closed and rested its case; the corrective writ of certiorari, the denial of the 2 of its attempt to reopen the case effectively
[68] and that it had terminated the presentation of its motion dictated a different course of action. The foreclosed all avenues available to it for the
69
evidence in x x x Civil Case No. 0009. [69] In the petitioners non-observance of the proper procedure consideration of the Bane deposition. Instead of
70
face of these categorical judicial admissions, [70] for the admission of the Bane deposition, while doing so, however, the petitioner allowed the 60-
the petitioner cannot suddenly make an about-face seemingly innocuous, carried fatal implications for its day reglementary period, under Section 4, Rule 65
and insist on the introduction of evidence out of the case. Having been rebuffed on its first attempt to of the Rules of Court, to lapse, and proceeded to
usual order. Contrary to the petitioners assertion, the have the Bane deposition adopted in Civil Case No. file its 3rd motion.
resting of its case could not have been conditioned on 0009, and without seeking reconsideration of the
the admission of the evidence it formally offered. To denial, the petitioner presented its other pieces of
begin with, the Bane deposition, which is the lone evidence and eventually rested its case. This time, the
piece of evidence subject of this present petition, was petitioner forgot about the Bane deposition and so Significantly, the petitioner changed its legal

not among the pieces of evidence included in its failed to include that piece of evidence in its formal position in its 3rd motion by denying having rested its

formal offer of evidence and thus could not have offer of evidence. case and insisting on the introduction of the Bane

been admitted or rejected by the trial court. deposition. Rebuffed once more, the petitioner filed
More than two years later, the petitioner the present petition, inviting our attention to the
The Court observes with interest that it was again tried to squeeze in the Bane deposition into its Sandiganbayans resolutions,72[72] which allegedly
only in this present petition for certiorari that the case. In resolving the petitioners motion for gave it mixed signals.73[73] By pointing to these
petitioner had firmly denied having rested its case. 71 reconsideration of the Sandiganbayans 2000 resolutions, ironically, even the petitioner impliedly
[71] Before then, the petitioner never found it resolution, the Sandiganbayan held that the Bane recognized that they were then already ripe for
deposition has become part and parcel of Civil Case review on certiorari. What the petitioner should have
66 No. 0009. This pronouncement has obscured the real realized was that its 2nd motion unequivocally aimed
67 status of the Bane deposition as evidence to reopen the case for the introduction of further
68
(considering that, earlier, the Sandiganbayan already evidence consisting of the Bane deposition. Having
69
70 denied the petitioners attempt to adopt the Bane 72
71 73
been ultimately denied by the court, the petitioner for special reasons otherwise the evidence sought to be presented is in the nature of
directs, the trial shall be limited to
could not have been prevented from taking the proper newly discovered evidence,79[79] the partys right to
the issues stated in the pre-trial
remedy notwithstanding any perceived ambiguity in order and shall proceed as follows: introduce further evidence must be recognized.
the resolutions. Otherwise, the aggrieved party may avail of the
xxxx
remedy of certiorari.
On the other end, though, there was nothing (f) The parties may then
respectively adduce rebutting
intrinsically objectionable in the petitioners motion to evidence only, unless the court, for
reopen its case before the court ruled on its formal good reasons and in the Largely, the exercise of the courts
furtherance of justice, permits
offer of evidence. The Rules of Court does not them to adduce evidence upon discretion80[80] under the exception of Section 5(f),
prohibit a party from requesting the court to allow it their original case[.] [emphases Rule 30 of the Rules of Court depends on the
ours]
to present additional evidence even after it has rested attendant facts i.e., on whether the evidence would
its case. Any such opportunity, however, for the qualify as a good reason and be in furtherance of the
Under this rule, a party who has the burden
ultimate purpose of the admission of additional interest of justice. For a reviewing court to properly
of proof must introduce, at the first instance, all the
evidence is already addressed to the sound discretion interfere with the lower courts exercise of discretion,
evidence he relies upon74[74] and such evidence
of the court. It is from the prism of the exercise of the petitioner must show that the lower courts action
cannot be given piecemeal. 75[75] The obvious
this discretion that the Sandiganbayans refusal to was attended by grave abuse of discretion. Settled
rationale of the requirement is to avoid injurious
reopen the case (for the purpose of introducing, jurisprudence has defined this term as the capricious
surprises to the other party and the consequent delay
marking and offering additional evidence) should be and whimsical exercise of judgment, equivalent to
in the administration of justice.76[76]
viewed. We can declare this Sandiganbayan action lack of jurisdiction; or, the exercise of power in an
invalid if it had acted with grave abuse of discretion. arbitrary manner by reason of passion, prejudice, or
personal hostility, so patent or so gross as to amount

A partys declaration of the completion of the to an evasion of a positive duty, to a virtual refusal to
III. The Sandiganbayan gravely abused its
presentation of his evidence prevents him from perform the mandated duty, or to act at all in
discretion in ultimately refusing to reopen the
case for the purpose of introducing and introducing further evidence; 77[77] but where the contemplation of the law.81[81] Grave abuse of
admitting in evidence the Bane deposition evidence is rebuttal in character, whose necessity, for discretion goes beyond the bare and unsupported

instance, arose from the shifting of the burden of imputation of caprice, whimsicality or arbitrariness,
The basis for a motion to reopen a case to
evidence from one party to the other; 78[78] or where
introduce further evidence is Section 5, Rule 30 of
the Rules of Court, which reads: 74
75
Sec. 5. Order of trial. 76 79
Subject to the provisions of section 77 80
2 of Rule 31, and unless the court 78 81
and beyond allegations that merely constitute errors the sound discretion of the court. furtherance of justice, permit the
82 83 The proper rule for the exercise of parties to offer evidence upon their
of judgment [82] or mere abuse of discretion. [83]
this discretion, it has been said by original case, and its ruling will not
an eminent author, is, that material be disturbed where no abuse of
testimony should not be excluded discretion appears, Generally,
In Lopez v. Liboro,84[84] we had occasion to
because offered by the plaintiff additional evidence is allowed
make the following pronouncement: after the defendant has rested, when x x x; but it may be
although not in rebuttal, unless it properly disallowed where it was
has been kept back by a trick, withheld deliberately and
After the parties have produced
and for the purpose of deceiving without justification.86[86]
their respective direct proofs, they
the defendant and affecting his
are allowed to offer rebutting
case injuriously. The weight of the exception is also
evidence only, but, it has been held,
the court, for good reasons, in the recognized in foreign jurisprudence.87[87]
These principles find their
furtherance of justice, may permit
echo in Philippine remedial law.
them to offer evidence upon their
While the general rule is rightly
original case, and its ruling will not Under these guidelines, we hold that the
recognized, the Code of Civil
be disturbed in the appellate court
Procedure authorizes the judge for Sandiganbayan gravely abused its discretion in
where no abuse of discretion
special reasons, to change the order
appears. So, generally, additional refusing to reopen the case. Instead of squarely
of the trial, and "for good reason, in
evidence is allowed when it is
the furtherance of justice," to ruling on the petitioners 2nd motion to avoid any
newly discovered, or where it has
permit the parties to offer evidence
been omitted through uncertainty on the evidentiary status of the Bane
upon their original case. These
inadvertence or mistake, or where
exceptions are made stronger when deposition, the Sandiganbayans action actually left
the purpose of the evidence is to
one considers the character of
correct evidence previously the petitioners concern in limbo by considering the
registration proceedings and the
offered. The omission to present
fact that where so many parties are petitioners motion redundant. This is tantamount to a
evidence on the testator's
involved, and action is taken
knowledge of Spanish had not been refusal to undertake a positive duty as mandated by
quickly and abruptly, conformity
deliberate. It was due to a
with precise legal rules should not the circumstances and is equivalent to an act outside
misapprehension or oversight.
always be expected. Even at the
(citations omitted; emphases ours) the contemplation of law.
risk of violating legal formul, an
opportunity should be given to
Likewise, in Director of Lands v. Roman Archbishop parties to submit additional
It has not escaped our notice that at the time
corroborative evidence in
of Manila,85[85] we ruled: support of their claims of title, if the petitioner moved to re-open its case, the
the ends of justice so require.
respondents had not yet even presented their evidence
The strict rule is that the plaintiff (emphases ours)
must try his case out when he in chief. The respondents, therefore, would not have
commences. Nevertheless, a been prejudiced by allowing the petitioners
relaxation of the rule is permitted in In his commentaries, Chief Justice Moran had
this to say: introduction of the Bane deposition, which was
82
83
However, the court for
84 good reasons, may, in the
86
85 87
concededly omitted through oversight.88[88] The IV (a). The consolidation of Civil Case No. 0009 docket are to be tried so that the business of the court
higher interest of substantial justice, of course, is and Civil Case No. 0130 did not dispense with may be dispatched expeditiously and with economy
the usual requisites of admissibility
another consideration that cannot be taken lightly. 89 while providing justice to the parties. To promote this
In support of its 3rd motion, the petitioner
[89] argues that the Bane deposition can be end, the rule permits the consolidation and a single
admitted in evidence without observing the trial of several cases in the courts docket, or the
In light of these circumstances, the provisions of Section 47, Rule 130 of the Rules consolidation of issues within those cases.95[95]
of Court.91[91] The petitioner claims that in light
Sandiganbayan should not have perfunctorily applied
of the prior consolidation of Civil Case No. 0009
Section 5, Rule 30 of the Rules of Court on the and Civil Case No. 0130, among others, 92[92] the A reading of Rule 31 of the Rules of Court
petitioners request to reopen the case for the former case or proceeding that Section 47, Rule easily lends itself to two observations. First, Rule 31
130 speaks of no longer exists.
submission of the Bane deposition. is completely silent on the effect/s of consolidation
Rule 31 of the old Rules of Court93[93] the
on the cases consolidated; on the parties and the
rule in effect at the time Civil Case Nos. 0009 and
On the basis of this conclusion, a remand of causes of action involved; and on the evidence
0130 were consolidated provided that:
this case should follow as a matter of course. The presented in the consolidated cases. Second, while
state of the parties submissions and the delay that has Rule 31 gives the court the discretion either to order a
Rule 31
already attended this aspect of Civil Case No. 0009, Consolidation or Severance joint hearing or trial, or to order the actions
however, dictate against this obvious course of consolidated, jurisprudence will show that the term
Section 1. Consolidation.
action. At this point, the parties have more than When actions involving a common consolidation is used generically and even
question of law or fact are pending
extensively argued for or against the admission of the synonymously with joint hearing or trial of several
before the court, it may order a
Bane deposition. Civil Case No. 0009 is a 25-year old joint hearing or trial of any or all causes.96[96] In fact, the title consolidation of Rule 31
the matters in issue in the actions; it
sequestration case that is now crying out for complete covers all the different senses of consolidation, as
may order all the actions
resolution. Admissibility, too, is an issue that would consolidated; and it may make such discussed below.
orders concerning proceedings
have again been raised on remand and would surely
therein as may tend to avoid
stare us in the face after remand.90[90] We are thus unnecessary costs or delay.94[94] These observations are not without practical reason.
(emphases ours) Considering that consolidation is basically a function
left with no choice but to resolve the issue of given to the court, the latter is in the best position to
admissibility of the Bane deposition here and now. determine for itself (given the nature of the cases, the
complexity of the issues involved, the parties
Consolidation is a procedural device granted affected, and the courts capability and resources vis--
IV. The admissibility of the Bane deposition vis all the official business pending before it, among
to the court as an aid in deciding how cases in its other things) what consolidation will bring, bearing
in mind the rights of the parties appearing before it.
91
88 92
89 93 95
90 94 96
 To disregard the kind of consolidation sought to be adopted, are not available for cross-
(3) Where several actions are
effected by the Sandiganbayan on the simple and examination in the Sandiganbayan) by presenting
ordered to be tried together but each
convenient premise that the deposition-taking retains its separate character and these other witnesses again in the main case, so that
requires the entry of a separate
took place after the Sandiganbayan ordered the the respondents can cross-examine them.
judgment. This type of consolidation
consolidation is to beg the question. It is precisely does not merge the suits into a single
action, or cause the parties to one These considerations run counter to the
the silence of our Rules of Procedure and the
action to be parties to the other.
dearth of applicable case law on the effect of (consolidation for trial)100[100] conclusion that the Sandiganbayans order of

consolidation that strongly compel this Court to consolidation had actually resulted in the complete
Considering that the Sandiganbayans order101[101] to
determine the kind of consolidation effected to merger of the incident cases with the main case, in
consolidate several incident cases does not at all
directly resolve the very issue of admissibility in provide a hint on the extent of the courts exercise of the sense of actual consolidation, and that the parties
its discretion as to the effects of the consolidation it
this case. in these consolidated cases had (at least
ordered in view of the function of this procedural
device to principally aid the court itself in dealing constructively) been aware of and had allowed actual
with its official business we are compelled to look
In the context of legal procedure, the term consolidation without objection.104[104]
deeper into the voluminous records of the
consolidation is used in three different senses:97[97] proceedings conducted below. We note that there is
nothing that would even suggest that the Considering, too, that the consolidated
Sandiganbayan in fact intended a merger of causes of
action, parties and evidence.102[102] To be sure, there actions were originally independent of one another
(1) Where all except one of would have been no need for a motion to adopt and the fact that in the present case the party
several actions are stayed until one is (which did not remain unopposed) the testimonies in
tried, in which case the judgment in the incident cases had a merger actually resulted from respondents to Civil Case No. 0009 (an action for
the one trial is conclusive as to the the order of consolidation, for in that case, the reconveyance, accounting, restitution and damages)
others. This is not actually Sandiganbayan can already take judicial notice of the
consolidation but is referred to as such. same. are not parties to Civil Case No. 0130 (a special civil
(quasi-consolidation)98[98]
action filed by an ETPI stockholder involving a
Significantly, even the petitioner itself
(2) Where several corporate squabble within ETPI), the conclusion that
actions are combined into one, lose viewed consolidation, at most, to be merely a
the Sandiganbayan in fact intended an actual
their separate identity, and become a
consolidation for trial.103[103] Accordingly, despite
single action in which a single consolidation and, together with the parties
judgment is rendered. This is the consolidation in 1993, the petitioner acceded to 105
affected, [105] acted towards that end - where the
illustrated by a situation where
the Sandiganbayans 1998 Resolution (which denied
several actions are pending between actions become fused and unidentifiable from one
the same parties stating claims which the petitioners 1st Motion on the ground that the
another and where the evidence appreciated in one
might have been set out originally in
witnesses, whose testimony in the incident cases is
one complaint. (actual action is also appreciated in another action must find
consolidation)99[99]
support in the proceedings held below. This is
100
particularly true in a case with the magnitude and
97 101
98 102 104
99 103 105
complexity of the present case. Otherwise, to impose IV (b). Use of deposition under Section 4, Rule Section 4, Rule 23 of the Rules of Court on
upon the respondents the effects of an actual 23 and as a former testimony under Section 47, Deposition Pending Action (deposition de bene esse)
Rule 130
consolidation (which find no clear support in the provides for the circumstances when depositions may
106
provisions of the Rules of Court, jurisprudence, be used in the trial, or at the hearing of a motion or an
[106] and even in the proceedings before the Since the present consolidation did not interlocutory proceeding.
Sandiganbayan itself and despite the aforementioned affect Civil Case No. 0130 as an original, albeit
considerations) results in an outright deprivation of incidental, case, the admissibility of the Bane SEC. 4. Use of
depositions. At the trial or upon the
the petitioners right to due process. We reach this deposition cannot avoid being measured against the hearing of a motion or an
conclusion especially where the evidence sought to requirements of Section 47, Rule 130 of the Rules of interlocutory proceeding, any part
or all of a deposition, so far as
be admitted is not simply a testimony taken in one of Court the rule on the admissibility of testimonies or admissible under the rules of
the several cases, but a deposition upon oral deposition taken in a different proceeding. In this evidence, may be used against any
party who was present or
examination taken in another jurisdiction and whose regard, the petitioner argues that Section 4, Rule 23 represented at the taking of the
admission is governed by specific provisions on our of the Rules of Court (then Rule 24) 110[110] must, at deposition or who had due notice
thereof, in accordance with any one
rules on evidence. any rate, prevail over Section 47, Rule 130111[111] of of the following provisions:
the same Rules.
xxxx
We stress on this point, too, that while the
Sandiganbayan ordered the consolidation in 1993 At the outset, we note that when the (c) The deposition of a
petitioners motion to adopt the testimonies taken in witness, whether or not a party,
(that is, before the deposition was taken), neither does
may be used by any party for any
the Pre-Trial Order107[107] issued by the the incident cases drew individual oppositions from purpose if the court finds: (1) that
the respondents, the petitioner represented to the the witness is dead; or (2) that the
Sandiganbayan in 1997 in Civil Case No. 0009
witness resides at a distance more
contain any reference, formal or substantive, to Civil Sandiganbayan its willingness to comply with the than one hundred (100) kilometers
provisions of Section 47, Rule 130 of the Rules of from the place of trial or hearing, or
Case No. 0130.108[108] Interestingly, in its Pre-Trial
is out of the Philippines, unless it
109
Brief dated August 30, 1996, [109] the petitioner Court,112[112] and, in fact, again presented some of appears that his absence was
the witnesses. The petitioners about-face two years procured by the party offering the
even made a representation to present Bane as one of
deposition; or (3) that the witness is
its witnesses. thereafter even contributed to the Sandiganbayans unable to attend or testify because
own inconsistency on how to treat the Bane of age, sickness, infirmity, or
imprisonment; or (4) that the party
deposition, in particular, as evidence. offering the deposition has been
unable to procure the attendance of
the witness by subpoena; or (5)
upon application and notice, that
106
such exceptional circumstances
107 110 exist as to make it desirable, in the
108 111 interest of justice and with due
109 112 regard to the importance of
 presenting the testimony of petitioner failed to recognize that the principle deponent must be presented for oral examination in
witnesses orally in open court, to
conceding admissibility to a deposition under Rule 23 open court at the trial or hearing. This is a
allow the deposition to be used[.]
[emphasis ours] should be consistent with the rules on evidence under requirement of the rules on evidence under Section 1,
113
Section 47, Rule 130. [113] In determining the Rule 132 of the Rules of Court.115[115]
On the other hand, Section 47, Rule 130 of the Rules admissibility of the Bane deposition, therefore,
reliance cannot be given on one provision to the Examination to be done
of Court provides:
in open court. The examination of
exclusion of the other; both provisions must be witnesses presented in a trial or
SEC. 47. Testimony or deposition at a former considered. This is particularly true in this case hearing shall be done in open court,
and under oath or affirmation.
proceeding. The testimony or deposition of a witness where the evidence in the prior proceeding does not Unless the witness is incapacitated
deceased or unable to testify, given in a former case simply refer to a witness testimony in open court but to speak, or the question calls for a
different mode of answer, the
or proceeding, judicial or administrative, involving to a deposition taken under another and farther answers of the witness shall be
the same parties and subject matter, may be given in jurisdiction. given orally.
evidence against the adverse party who had the
Indeed, any deposition offered to prove the
opportunity to cross-examine him. A common thread that runs from Section 4, Rule
facts set forth therein, in lieu of the actual oral
23 of the Rules of Court and Section 47, Rule 130 of
testimony of the deponent in open court, may be
A plain reading of Rule 23 of the Rules of the same Rules is their mutual reference to
opposed by the adverse party and excluded under the
Court readily rejects the petitioners position that the depositions.
hearsay rule i.e., that the adverse party had or has no
Bane deposition can be admitted into evidence
opportunity to cross-examine the deponent at the time
without observing the requirements of Section 47,
that his testimony is offered. That opportunity for
Rule 130 of the Rules of Court.
A deposition is chiefly a mode of discovery cross-examination was afforded during the taking
whose primary function is to supplement the of the deposition alone is no argument, as the
Before a party can make use of the
pleadings for the purpose of disclosing the real points opportunity for cross-examination must normally
deposition taken at the trial of a pending action,
of dispute between the parties and affording an be accorded a party at the time that the
Section 4, Rule 23 of the Rules of Court does not
adequate factual basis during the preparation for testimonial evidence is actually presented against
only require due observance of its sub-paragraphs (a)
trial.114[114] Since depositions are principally made him during the trial or hearing of a case. 116[116]
to (d); it also requires, as a condition for
available to the parties as a means of informing However, under certain conditions and for certain
admissibility, compliance with the rules on evidence.
themselves of all the relevant facts, depositions are limited purposes laid down in Section 4, Rule 23 of
Thus, even Section 4, Rule 23 of the Rules of Court
not meant as substitute for the actual testimony in the Rules of Court, the deposition may be used
makes an implied reference to Section 47, Rule 130
open court of a party or witness. Generally, the without the deponent being actually called to the
of the Rules of Court before the deposition may be
used in evidence. By reading Rule 23 in isolation, the 113 115
114 116
witness stand.117[117] Section 47, Rule 130 requires that the issues Section 4(c), Rule 23 of the Rules of Court, not
involved in both cases must, at least, be substantially necessarily to those of Section 47, Rule 130 of the
Section 47, Rule 130 of the Rules of Court the same; otherwise, there is no basis in saying that Rules of Court, as a distinct rule on evidence that
is an entirely different provision. While a former the former statement was - or would have been - imposes further requirements in the use of
testimony or deposition appears under the Exceptions sufficiently tested by cross-examination or by an depositions in a different case or proceeding. In other
to the Hearsay Rule, the classification of former opportunity to do so.120[120] (The requirement of words, the prior use of the deposition under Section
testimony or deposition as an admissible hearsay is similarity though does not mean that all the issues in 4(c), Rule 23 cannot be taken as compliance with
not universally conceded.118[118] A fundamental the two proceedings should be the same. [121] 121
Section 47, Rule 130 which considers the same
characteristic of hearsay evidence is the adverse Although some issues may not be the same in the two deposition as hearsay, unless the requisites for its
partys lack of opportunity to cross-examine the out- actions, the admissibility of a former testimony on an admission under this rule are observed. The aching
of-court declarant. However, Section 47, Rule 130 issue which is similar in both actions cannot be question is whether the petitioner complied with the
explicitly requires, inter alia, for the admissibility of 122
questioned. [122]) latter rule.
a former testimony or deposition that the adverse
party must have had an opportunity to cross-examine These considerations, among others, make Section 47, Rule 130 of the Rules of Court
the witness or the deponent in the prior proceeding. Section 47, Rule 130 a distinct rule on evidence and lays down the following requisites for the admission
therefore should not be confused with the general of a testimony or deposition given at a former case or
This opportunity to cross-examine though is provisions on deposition under Rule 23 of the Rules proceeding.
119
not the ordinary cross-examination [119] afforded of Court. In other words, even if the petitioner
an adverse party in usual trials regarding matters complies with Rule 23 of the Rules of Court on the 1. The testimony or
deposition of a witness
stated in the direct examination or connected use of depositions, the observance of Section 47, deceased or otherwise
therewith. Section 47, Rule 130 of the Rules of Court Rule 130 of the Rules of Court cannot simply be unable to testify;
2. The testimony was given
contemplates a different kind of cross-examination, avoided or disregarded. in a former case or
whether actual or a mere opportunity, whose proceeding, judicial or
administrative;
adequacy depends on the requisite identity of issues Undisputably, the Sandiganbayan relied on
3. Involving the same
in the former case or proceeding and in the present the Bane deposition, taken in Civil Case No. 0130, parties;
case where the former testimony or deposition is for purposes of this very same case. Thus, what the
4. Relating to the same
sought to be introduced. petitioner established and what the Sandiganbayan matter;
found, for purposes of using the Bane deposition,
5. The adverse party having
refer only to the circumstances laid down under had the opportunity to
cross-examine him.123
117 120 [123]
118 121
119 122 123
The reasons for the admissibility of testimony or The phrase unable to testify appearing in Indeed, the Sandiganbayans reliance on the
deposition taken at a former trial or proceeding are both Rule 23 and Rule 130 of the Rules of Court Bane deposition in the other case (Civil Case No.
the necessity for the testimony and its refers to a physical inability to appear at the witness 0130) is an argument in favor of the requisite
124 127
trustworthiness. [124] However, before the former stand and to give a testimony. [127] Hence unavailability of the witness. For purposes of the
testimony or deposition can be introduced in notwithstanding the deletion of the phrase out of the present case (Civil Case No. 0009), however, the
evidence, the proponent must first lay the proper Philippines, which previously appeared in Section 47, Sandiganbayan would have no basis to presume, and
predicate therefor,125[125] i.e., the party must Rule 130 of the Rules of Court, absence from neither can or should we, that the previous condition,
128
establish the basis for the admission of the Bane jurisdiction [128] - the petitioners excuse for the which previously allowed the use of the deposition,
deposition in the realm of admissible evidence. This non-presentation of Bane in open court - may still remains and would thereby justify the use of the same
basis is the prior issue that we must now examine and constitute inability to testify under the same rule. deposition in another case or proceeding, even if the
resolve. This is not to say, however, that resort to deposition other case or proceeding is before the same court.
on this instance of unavailability will always be Since the basis for the admission of the Bane
IV (c). Unavailability of witness upheld. Where the deposition is taken not for deposition, in principle, being necessity, 131[131] the
discovery purposes, but to accommodate the burden of establishing its existence rests on the party
For the admission of a former testimony or
deposition, Section 47, Rule 130 of the Rules of deponent, then the deposition should be rejected who seeks the admission of the evidence. This burden
Court simply requires, inter alia, that the witness or
in evidence.129[129] cannot be supplanted by assuming the continuity of
deponent be deceased or unable to testify. On the
other hand, in using a deposition that was taken the previous condition or conditions in light of the
during the pendency of an action, Section 4, Rule 23 Although the testimony of a witness has general rule against the non-presentation of the
of the Rules of Court provides several grounds that
will justify dispensing with the actual testimony of been given in the course of a former proceeding deponent in court.132[132]
the deponent in open court and specifies, inter alia, between the parties to a case on trial, this testimony
the circumstances of the deponents inability to attend
or testify, as follows: alone is not a ground for its admission in evidence. IV (d). The requirement of opportunity of the
The witness himself, if available, must be produced adverse party to cross-examine; identity of
parties; and identity of subject matter
in court as if he were testifying de novo since his
testimony given at the former trial is mere hearsay. 130
(3) that the witness is
unable to attend or testify because [130] The deposition of a witness, otherwise The function of cross-examination is to test
of age, sickness, infirmity, or available, is also inadmissible for the same reason. the truthfulness of the statements of a witness made
imprisonment[.] [emphases ours]126
[126] on direct examination.133[133] The opportunity of
cross-examination has been regarded as an essential
safeguard of the accuracy and completeness of a
127
124 128 131
125 129 132
126 130 133
testimony. In civil cases, the right of cross- required; substantial identity136[136] or identity of distinct and personal to them, vis-a-vis other
137
examination is absolute, and is not a mere privilege interests [137] suffices, as where the subsequent stockholders.139[139]
of the party against whom a witness may be called. 134 proceeding is between persons who represent the
[134] This right is available, of course, at the taking parties to the prior proceeding by privity in law, in IV (d1). The respondents notice of taking of
Bane deposition is insufficient evidence of
of depositions, as well as on the examination of blood, or in estate. The term privity denotes mutual
waiver
witnesses at the trial. The principal justification for or successive relationships to the same rights of
the general exclusion of hearsay statements and for property.138[138]
the admission, as an exception to the hearsay rule, of The petitioner staunchly asserts that the
reported testimony taken at a former hearing where respondents have waived their right to cross-examine
the present adversary was afforded the opportunity to the deponent for their failure to appear at the
In the present case, the petitioner failed to
cross-examine, is based on the premise that the deposition-taking despite individual notices
impute, much less establish, the identity of interest or 140
opportunity of cross-examination is an essential previously sent to them. [140]
privity between the then opponent, Africa, and the
safeguard135[135] against falsehoods and frauds.
present opponents, the respondents. While Africa is
the son of the late respondent Jose Africa, at most,
the deposition should be admissible only against him In its first Notice to Take Oral Deposition of
In resolving the question of whether the as an ETPI stockholder who filed the certiorari Mr. Maurice V. Bane dated August 30, 1996,141[141]
requirement of opportunity to cross-examine has petition docketed as Civil Case No. 0130 (and, the petitioner originally intended to depose Mr. Bane
been satisfied, we have to consider first the required unavoidably, as successor-in-interest of the late on September 25-26 1996. Because it failed to
identity of parties as the present opponent to the respondent Jose Africa). While Africa and the specify in the notice the purpose for taking Mr. Banes
admission of the Bane deposition to whom the respondents are all ETPI stockholders, this deposition, the petitioner sent a Second Amended
opportunity to cross-examine the deponent is imputed commonality does not establish at all any privity Notice to Take Deposition of Mr. Maurice V. Bane
may not after all be the same adverse party who between them for purposes of binding the latter to the Upon Oral Examination where it likewise moved the
actually had such opportunity. acts or omissions of the former respecting the cross- scheduled deposition-taking to October 23-26, 1996.
examination of the deponent. The sequestration of
To render the testimony of a witness their shares does not result in the integration of their
admissible at a later trial or action, the parties to the rights and obligations as stockholders which remain
first proceeding must be the same as the parties to the The records show that Africa moved several

later proceeding. Physical identity, however, is not times for protective orders against the intended

136 139
134 137 140
135 138 141
deposition of Maurice Bane.142[142] On the other firmly maintained. As aptly stated Bane deposition was taken - rather perfunctorily to
by Chief Justice Moran:
hand, among the respondents, only respondent Enrile the prejudice of the respondents.
. . . . (T)his provision affords the
appears to have filed an Opposition143[143] to the adverse party, as well as the
petitioners first notice, where he squarely raised the deponent, sufficient protection
against abuses that may be
issue of reasonability of the petitioners nineteen-day
committed by a party in the
In conjunction with the order of
first notice. While the Sandiganbayan denied Africas exercise of his unlimited right to
discovery. As a writer said: "Any consolidation, the petitioners reliance on the prior
motion for protective orders, 144[144] it strikes us that
discovery involves a prying into
notice on the respondents, as adequate opportunity
no ruling was ever handed down on respondent another person's affairs prying that
is quite justified if it is to be a for cross-examination, cannot override the non-party
Enriles Opposition.145[145]
legitimate aid to litigation, but not
status of the respondents in Civil Case No. 0130 the
justified if it is not to be such an
It must be emphasized that even under Rule aid." For this reason, courts are effect of consolidation being merely for trial. As non-
given ample powers to forbid
23, the admission of the deposition upon oral parties, they cannot be bound by proceedings in that
discovery which is intended not as
examination is not simply based on the fact of prior an aid to litigation, but merely to case. Specifically, they cannot be bound by the taking
annoy, embarrass or oppress either
notice on the individual sought to be bound thereby. of the Bane deposition without the consequent
the deponent or the adverse party,
In Northwest Airlines v. Cruz, 146[146] we ruled that - or both. (emphasis ours) impairment of their right of cross-examination. 148
[148] Opportunity for cross-examination, too, even
assuming its presence, cannot be singled out as basis
for the admissibility of a former testimony or
In the present case, not only did the
The provision explicitly deposition since such admissibility is also anchored
vesting in the court the power to Sandiganbayan fail to rule on respondent Enriles
order that the deposition shall not on the requisite identity of parties. To reiterate,
Opposition (which is equally applicable to his co-
be taken connotes the authority to although the Sandiganbayan considered the Bane
exercise discretion on the matter. respondents), it also failed to provide even the bare
However, the discretion conferred deposition in resolving Civil Case No. 0130, its
minimum safeguards for the protection of, (more so)
by law is not unlimited. It must be action was premised on Africas status as a party in
exercised, not arbitrarily or non-parties,147[147] and to ensure that these
oppressively, but in a reasonable that case where the Bane deposition was taken.
safeguards are firmly maintained. Instead, the
manner and in consonance with the
spirit of he law. The courts should Sandiganbayan simply bought the petitioners
Corollarily, the idea of privity also
always see to it that the assertion (that the taking of Bane deposition is a
safeguards for the protection of permeates Rule 23 of the Rules of Court through its
the parties and deponents are matter of right) and treated the lingering concerns
Section 5 which provides:
e.g., reasonability of the notice; and the non-party
142
143 status of the respondents in Civil Case No. 0130 - at
Effect of substitution of
144 whose incident (docketed as G.R. No. 107789) the parties. Substitution of parties does
145
146 147 148
 not affect the right to use Under this provision, we do not believe that the administration and had returned to normal democratic
depositions previously taken; and,
petitioner could reasonably expect that the individual processes when Civil Case No. 0009 was filed. In
when an action has been dismissed
and another action involving the notices it sent to the respondents would be sufficient fact, the petitioners notice itself states that the
same subject is afterward brought
to bind them to the conduct of the then opponents purpose of the deposition is for Mr. Maurice Bane to
between the same parties or their
representatives or successors in (Africas) cross-examination since, to begin with, they identify and testify on the facts set forth in his
interest, all depositions lawfully
were not even parties to the action. Additionally, we Affidavit, which Mr. Bane had long executed in 1991
taken and duly filed in the former
action may be used in the latter as observe that in the notice of the deposition taking, in Makati, Metro Manila.150[150] Clearly, a
if originally taken therefor. [italics
conspicuously absent was any indication sufficient to deposition could then have been taken - without
and underscoring ours]
forewarn the notified persons that their inexcusable compromising the respondents right to cross-examine
failure to appear at the deposition taking would a witness against them - considering that the principal
In light of these considerations, we reject the
amount to a waiver of their right of cross- purpose of the deposition is chiefly a mode of
petitioners claim that the respondents waived their
examination, without prejudice to the right of the discovery. These, to our mind, are avoidable
right to cross-examination when they failed to attend
respondents to raise their objections at the omissions that, when added to the deficient handling
the taking of the Bane deposition. Incidentally, the 149
appropriate time. [149] We would be treading on of the present matter, add up to the gross deficiencies
respondents vigorous insistence on their right to
dangerous grounds indeed were we to hold that one of the petitioner in the handling of Civil Case No.
cross-examine the deponent speaks loudly that they
not a party to an action, and neither in privity nor 0009.
never intended any waiver of this right.
in substantial identity of interest with any of the
parties in the same action, can be bound by the After failing to take Banes deposition in
Interestingly, the petitioners notice of the
action or omission of the latter, by the mere 1991 and in view of the peculiar circumstances of
deposition-taking relied on Rule 23 of the Rules of
expedient of a notice. Thus, we cannot simply this case, the least that the petitioner could have done
Court. Section 15 of this rule reads:
deduce a resultant waiver from the respondents mere was to move for the taking of the Bane deposition

failure to attend the deposition-taking despite notice and proceed with the deposition immediately upon
Deposition upon oral examination; notice; time
and place. A party desiring to take the deposition of sent by the petitioner. securing a favorable ruling thereon. On that occasion,
any person upon oral examination shall give
where the respondents would have a chance to be
reasonable notice in writing to every other party to
the action. The notice shall state the time and place Lastly, we see no reason why the Bane heard, the respondents cannot avoid a resultant
for taking the deposition and the name and address of
deposition could not have been taken earlier in Civil waiver of their right of cross-examination if they still
each person to be examined, if known, and if the
name is not known, a general description sufficient to Case No. 0009 the principal action where it was fail to appear at the deposition-taking. Fundamental
identify him or the particular class or group to which
sought to be introduced while Bane was still here in fairness dictates this course of action. It must be
he belongs. On motion of any party upon whom the
notice is served, the court may for cause shown the Philippines. We note in this regard that the stressed that not only were the respondents non-
enlarge or shorten the time.
Philippines was no longer under the Marcos parties to Civil Case No. 0130, they likewise have no

149 150
interest in Africas certiorari petition asserting his to them.152[152] Put differently, it is the assumption involved.157[157] In the present case, after the
right as an ETPI stockholder. by a court of a fact without need of further traditional petitioner filed its Urgent Motion and/or Request for
evidentiary support. The principle is based on Judicial Notice, the respondents were also heard
convenience and expediency in securing and through their corresponding oppositions.
introducing evidence on matters which are not
Setting aside the petitioners flip-flopping on In adjudicating a case on trial, generally,
ordinarily capable of dispute and are not bona fide
its own representations,151[151] this Court can only courts are not authorized to take judicial notice of the
disputed.153[153]
express dismay on why the petitioner had to let Bane contents of the records of other cases, even when
leave the Philippines before taking his deposition The foundation for judicial notice may be such cases have been tried or are pending in the same
despite having knowledge already of the substance of traced to the civil and canon law maxim, manifesta court, and notwithstanding that both cases may have
what he would testify on. Considering that the 154
(or notoria) non indigent probatione. [154] The been tried or are actually pending before the same
testimony of Bane is allegedly a vital cog in the taking of judicial notice means that the court will judge.158[158] This rule though admits of exceptions.
petitioners case against the respondents, the Court is dispense with the traditional form of presentation of
left to wonder why the petitioner had to take the evidence. In so doing, the court assumes that the
deposition in an incident case (instead of the main matter is so notorious that it would not be disputed. As a matter of convenience to all the parties,
case) at a time when it became the technical right of a court may properly treat all or any part of the
the petitioner to do so. The concept of judicial notice is embodied in Rule original record of a case filed in its archives as read
129 of the Revised Rules on Evidence. Rule 129 into the record of a case pending before it, when,
V. The petitioner cannot rely on principle either requires the court to take judicial notice, inter with the knowledge of, and absent an objection
of judicial notice
alia, of the official acts of the x x x judicial from, the adverse party, reference is made to it for
departments of the Philippines,155[155] or gives the that purpose, by name and number or in some other
The petitioner also claims that since the court the discretion to take judicial notice of matters manner by which it is sufficiently designated; or
Bane deposition had already been previously ought to be known to judges because of their judicial when the original record of the former case or any
introduced and admitted in Civil Case No. 0130, then functions.156[156] On the other hand, a party-litigant part of it, is actually withdrawn from the archives at
the Sandiganbayan should have taken judicial notice may ask the court to take judicial notice of any matter the court's direction, at the request or with the
of the Bane deposition as part of its evidence. and the court may allow the parties to be heard on the consent of the parties, and admitted as a part of the
propriety of taking judicial notice of the matter record of the case then pending.159[159]
Judicial notice is the cognizance of certain
facts that judges may properly take and act on 152
without proof because these facts are already known 153
154 157
155 158
151 156 159
 Courts must also take judicial notice of the petitioner itself admits that the present case has
records of another case or cases, where sufficient generated a lot of cases, which, in all likelihood,
basis exists in the records of the case before it, involve issues of varying complexity. If we follow To recapitulate, we hold that: (1) the

warranting the dismissal of the latter case.160[160] the logic of the petitioners argument, we would be Sandiganbayans denial of the petitioners 3rd motion

espousing judicial confusion by indiscriminately the Motion to Admit Supplemental Offer of Evidence
The issue before us does not involve the allowing the admission of evidence in one case, (Re: Deposition of Maurice Bane) was a legal error
applicability of the rule on mandatory taking of which was presumably found competent and relevant that did not amount to grave abuse of discretion; (2)
judicial notice; neither is the applicability of the rule in another case, simply based on the supposed lineage the Sandiganbayans refusal to reopen the case at the
on discretionary taking of judicial notice seriously of the cases. It is the duty of the petitioner, as a party- petitioners instance was tainted with grave abuse of
pursued. Rather, the petitioner approaches the litigant, to properly lay before the court the evidence discretion; and (3) notwithstanding the grave abuse of
concept of judicial notice from a genealogical it relies upon in support of the relief it seeks, instead discretion, the petition must ultimately fail as the
perspective of treating whatever evidence offered in of imposing that same duty on the court. We invite Bane deposition is not admissible under the rules of
any of the children cases Civil Case 0130 as evidence the petitioners attention to our prefatory evidence.165[165]
in the parent case Civil Case 0009 - or of the whole pronouncement in Lopez v. Sandiganbayan:164[164]
family of cases.161[161] To the petitioner, the VII. Refutation of Justice Carpios Last Minute

supposed relationship of these cases warrants the Down the oft-trodden path in Modified Dissent
our judicial system, by common sense,
taking of judicial notice.
tradition and the law, the Judge in trying At the last minute, Justice Carpio circulated
a case sees only with judicial eyes as he
ought to know nothing about the facts a modified dissent, quoting the Bane deposition. His
of the case, except those which have covering note states:
been adduced judicially in evidence.
We strongly disagree. First, the supporting Thus, when the case is up for trial, the
162
cases [162] the petitioner cited are inapplicable judicial head is empty as to facts I have revised my dissenting opinion to
involved and it is incumbent upon the include the Bane deposition so that the Court and the
either because these cases involve only a single litigants to the action to establish by public will understand what the Bane deposition is all
proceeding or an exception to the rule, which evidence the facts upon which they rely. about. (underlining added)
(emphasis ours)
proscribes the courts from taking judicial notice of In light of this thrust, a discussion refuting
163
the contents of the records of other cases. [163]
We therefore refuse, in the strongest terms, to the modified dissent is in order.
Second, the petitioners proposition is obviously
entertain the petitioners argument that we should take
obnoxious to a system of orderly procedure. The First: Contents of the Bane deposition not
judicial notice of the Bane deposition.
VI. Summation an Issue. The dissent perfectly identified what is at
160
issue in this case i.e., the admissibility of the Bane
161
162
163 164 165
deposition. Admissibility is concerned with the actions involved had originally failure to distinguish between
166 been joined in a single action, and these methods of procedure,
competence and relevance [166] of the evidence,
the order of consolidation, if made which are entirely distinct, the
whose admission is sought. While the dissent quoted by a court of competent two latter, strictly speaking, not
jurisdiction, is binding upon all the being consolidation, a fact which
at length the Bane deposition, it may not be amiss to
parties to the different actions until has not always been noted, has
point out that the relevance of the Bane deposition it is vacated or set aside. After the caused some confusion and
consolidation there can be no conflict in the cases. (1 C.J.S.,
(or, to adopt the dissents characterization, whether
further proceedings in the separate 107, pp. 1341-1342) (Emphasis
Maurice V. Bane is a vital witness) is not an issue actions, which are by virtue of the added).
consolidation discontinued and
here unless it can be established first that the Bane
superseded by a single action, In defining the term
deposition is a competent evidence. which should be entitled in such consolidation of actions, Francisco
manner as the court may direct, and provided a colatilla that the term
all subsequent proceedings therein consolidation is used in three
be conducted and the rights of the different senses, citing 1 C.J.S.
parties adjudicated in a single 1341 and 1 Am. Jur. 477
Second: Misrepresentation of Cited action (1 C.J.S., 113, pp. 1371- (Francisco, Revised Rules of Court,
1372). p. 348).
Authority. The dissent insists that in Philippine
Jurisprudence, the consolidation of cases merges the
different actions into one and the rights of the parties
At the very beginning of
From the foregoing, it is clear that the dissent appears
are adjudicated in a single judgment, citing Vicente J. the discussion on consolidation of
actions in the Corpus Juris to have quoted Franciscos statement out of context.
Francisco. In our discussion on consolidation, we
Secundum, the following caveat
As it is, the issue of the effect of consolidation on
footnoted the following in response to the dissents appears:
evidence is at most an unsettled matter that requires
position, which we will restate here for emphasis:
the approach we did in the majoritys discussion on
consolidation.167[167]
The term consolidation is
used in three different senses. First,
In the 1966 edition of where several actions are combined Third: Misappreciation of the Purpose of
Vicente J. Franciscos Revised into one and lose their separate
Rules of Court, Francisco wrote: identity and become a single action Consolidation. The dissent then turns to the purpose
in which a single judgment is of consolidation to expeditiously settle the
rendered; second, where all except
one of several actions are stayed interwoven issues involved in the consolidated cases
The effect of consolidation until one is tried, in which case the and the simplification of the proceedings. It argues
of actions is to unite and merge all judgment in the one is conclusive
as to the others; third, where that this can only be achieved if the repetition of the
of the different actions consolidated
into a single action, in the same several actions are ordered to be same evidence is dispensed with.
manner as if the different causes of tried together but each retains its
separate character and requires the
entry of a separate judgment. The
166 167
 rule that depositions are not meant as substitute for of this nature, the most minimum of fairness
the actual testimony, in open court, of a party or demands upon the petitioner to move for the
It is unfortunate that the dissent refuses to witness. taking of the Bane deposition and for the
recognize the fact that since consolidation is Sandiganbayan to make a ruling thereon
primarily addressed to the court concerned to aid it in (including the opposition filed by respondent Enrile
dispatching its official business, it would be in which equally applies to his co-respondents). The
keeping with the orderly trial procedure if the court Respondent Enrile had a pending Opposition
burgeoning omission and failures that have prevailed
should have a say on what consolidation would to the notice of deposition-taking (questioning the
in this case cannot be cured by this Court without
168
actually bring [168] (especially where several cases reasonableness thereof an issue applicable to the rest
itself being guilty of violating the constitutional
are involved which have become relatively complex). of the respondents) which the Sandiganbayan failed
guarantee of due process.
In the present case, there is nothing in the to rule on. To make the Sandiganbayans omission

proceedings below that would suggest that the worse, the Sandiganbayan blindly relied on the Sixth: Issues Posed and Resolved Go
Sandiganbayan or the parties themselves (the petitioners assertion that the deposition-taking was a Beyond Technicalities. The above conclusions,
petitioner and the respondents) had in mind a matter of right and, thus, failed to address the contrary to the petitioners claim, are not only matters
consolidation beyond joint hearing or trial. Why consequences and/or issues that may arise from the of technicality. Admittedly, rules of procedure
should this Court which is not a trial court impose a apparently innocuous statement of the petitioner (that involve technicality, to which we have applied the
purported effect that has no factual or legal grounds? it intends to use the Bane deposition in Civil Case liberality that technical rules deserve. But the
No. 0009, where only the respondents, and not resolution of the issues raised goes beyond pure or
Africa, are the parties). 169[169] There is simply the mere technicalities as the preceding discussions
absence of due in due process. show. They involve issues of due process and basic
Fourth: The Due Process Consideration.
unfairness to the respondents, particularly to
The dissent argues that even if the consolidation only Fifth: Misstatement of the
respondent Enrile, who is portrayed in the Bane
resulted in a joint hearing or trial, the respondents are Sandiganbayans Action. The dissent repeatedly
deposition to be acting in behalf of the Marcoses so
still bound by the Bane deposition considering that misstates that the Sandiganbayan granted the request
that these shares should be deemed to be those of the
they were given notice of the deposition-taking. The for the deposition-taking. For emphasis, the
Marcoses. They involved, too, principles upon which
issue here boils down to one of due process the Sandiganbayan did not grant the request since the
our rules of procedure are founded and which we
fundamental reason why a hearsay statement (not petitioner staunchly asserted that the deposition-
cannot disregard without flirting with the violation of
subjected to the rigor of cross-examination) is taking was a matter of right. No one can deny the
guaranteed substantive rights and without risking the
generally excluded in the realm of admissible complexity of the issues that these consolidated cases
disorder that these rules have sought to avert in the
evidence especially when read in light of the general have reached. Considering the consolidation of cases
course of their evolution.

168 169
 In its complaint, ASB alleged that on 21 May 1994, violations of the best-evidence rule, rule on
EMRASON, a real estate company which owns real presentation of secondary evidence, incompetence of
estate properties in Dasmarias, Cavite City, with a the deponent, opinion rule, manner of presentation of
In the Court En Banc deliberations of total area of 372 hectares, whose chairman and evidence, and testimonies not forming part of the
December 6, 2011, the Court failed to arrive at a president is Emerito M. Ramos, Sr., with his wife, offer.[9] As a consequence, the trial court, in an Order
Susana B. Ramos, and children as stockholders, dated 14 February 1995, cancelled the cross-
conclusive decision because of a tie vote (7-7, with entered into a Letter-Agreement with ASB for the examination of Emerito Ramos, Sr.s deposition
one Justice taking no part). The same vote resulted in conditional sale of sixty-five percent (65%) of the scheduled on 15 February 1995.
said land for a consideration of P400,000,000.00
the re-voting of December 13, 2011. In this light, the payable in five installments. However, ASB, through On 05 May 1995,[10] the trial court ruled on the
ponencia is deemed sustained. its president, Mr. Luke C. Roxas, received a letter objections of ALI sustaining some of its objections,
from the children of Emerito Ramos, Sr., informing overruling the others and upholding the propriety of
him that on 18 May 1994, they entered into a the presentation of evidence made by plaintiff
WHEREFORE, premises considered, we Contract to Sell said real estate properties with ALI. through deposition. In the same Order, the trial court
DISMISS the petition for lack of merit. No costs. [2] ASB confirmed the contract of the Ramos directed the setting of the cross-examination of the
children with ALI when it found out that the same deponent. ALI filed a Motion for Reconsideration of
was annotated on the Transfer Certificates of Title of the Order setting the hearing of the case for cross-
SO ORDERED. the real estate properties in dispute. This prompted examination, which the trial court denied on 07
ASB to file the Complaint dated 13 June 1994 before September 1995.[11] The trial court again directed
ARTURO D. BRION the trial court.[3] ALI, thereafter, filed its Answer that the cross-examination of Emerito Ramos, Sr., be
with Compulsory Counterclaim and Cross-claim.[4] scheduled. The same was thus set on 06 October
1995. Before this date, however, ALI filed a
Plaintiff ASB subsequently filed a Motion[5] for Manifestation and Motion dated 02 October 1995
Leave to take testimony by deposition upon oral praying that the date set be cancelled and re-
examination of Emerito Ramos, Sr., citing Section scheduled to another date.[12] The trial court reset
4(c), Rule 24 of the Revised Rules of Court stating the hearing on 27 October 1995.
that Emerito Ramos, Sr. was already 87 years old and
although he was of sound mind there is always the Thereafter, ALI filed before the Court of Appeals a
AYALA LAND, INC., petitioner, vs. HON. possibility that he may not be able to testify on Petition for Certiorari and Prohibition with urgent
LUCENITO N. TAGLE, in his capacity as Presiding plaintiffs behalf in the course of the trial on the application for Temporary Restraining Order and
Judge, RTC-Imus, Branch 20, ASB REALTY CORP., merits. In the Omnibus Order[6] of the trial court Writ of Preliminary Injunction[13] to restrain the
and E. M. RAMOS & SONS, INC., respondents. dated 17 October 1994, plaintiffs motion was public respondent, Judge Lucenito Tagle, from
granted. ASB then obtained the deposition upon oral implementing the Order dated 07 September 1995
DECISION examination of Emerito Ramos, Sr. on six different and to declare null and void and expunging the entire
occasions, to wit: 22 and 24 November 1994, 5, 8 and deposition proceedings taken in connection with
CHICO-NAZARIO, J.: 16 December 1994, and 26 January 1995. Upon Civil Case No. 931-94.[14]
termination of Emerito Ramos, Sr.s direct testimony
Civil Case No. 931-94 for nullification of Contract to by deposition, both plaintiffs and defendants agreed The Court of Appeals issued a Temporary Restraining
Sell Real Properties, Cancellation of Annotations on that the cross-examination be scheduled on 02, 10 Order dated 04 October 1995[15] and later on, a Writ
Transfer Certificates of Title and Damages was filed and 15 February 1995.[7] These dates were reset to of Preliminary Injunction dated 14 November
before the Regional Trial Court of Imus, Cavite City, 15 February 1995. However, on 30 January 1995, 1995[16] pending resolution of the petition.
by ASB Realty Corporation (ASB) and E. M. Ramos ALI filed a Motion[8] to Resolve Objections (In
and Sons, Inc. (EMRASON) against Ayala Land, Inc. deposition proceedings with Omnibus Motion) on the
propriety, admissibility and conformity of the On 29 October 1996, the Court of Appeals rendered
(ALI), Emerito B. Ramos, Jr., et al.[1] its decision[17] denying due course and dismissing
deposition proceedings to the Rules. Specifically, ALI
sought rulings on its objections to leading questions, the petition of ALI. The Court of Appeals held:
In the instant case, Atty. Emerito Ramos, Sr. testified In a decision[27] dated 31 January 2002, the Court of [A]nd the purposes of taking depositions are to: 1)
on matters of his personal knowledge, even if in the Appeals dismissed the petition for lack of merit. ALI Give greater assistance to the parties in ascertaining
course of his testimony, he referred to certain filed a Motion for Reconsideration[28] which was the truth and in checking and preventing perjury; 2)
documents in court, being the President and opposed[29] by private respondents ASB and Provide an effective means of detecting and exposing
Chairman of EMRASON. In that capacity, he carried EMRASON. The motion was denied in a resolution false, fraudulent claims and defenses; 3) Make
on negotiations relative to the sale of the Dasmarias dated 23 May 2002.[30] available in a simple, convenient and inexpensive
property. Indeed, all persons who can perceive, and way, facts which otherwise could not be proved
perceiving, can make known their perception to Hence this Petition. except with great difficulty; 4) Educate the parties in
others, may be witnesses (Sec. 20, Rule 130, Rules of advance of trial as to the real value of their claims
Court). The issues raised in the instant petition are the and defenses thereby encouraging settlements; 5)
following: Expedite litigation; 6) Safeguard against surprise; 7)
Sec. 16, Rule 132, as contended by petitioner, is not Prevent delay; 8) Simplify and narrow the issues; and
applicable to the case at bench as Atty. Ramos was 9) Expedite and facilitate both preparation and trial.
I. WHETHER OR NOT THE ALLEGED [33]
not refreshing his memory on a fact or transaction DEPOSITION OF THE WITNESS EMERITO M.
with the aid of memoranda. Rather, he was freely RAMOS, SR. IS ADMISSIBLE UNDER THE
recollecting and testifying on matters within the RULES. In the case of Jonathan Landoil International Co.,
ambit of his own personal competence, and merely Inc. v. Mangudadatu, this Court instructs:[34]
referring to the letter that he received from Mr.
Fernando Ayala, and another letter written by a Victor II. WHETHER OR NOT PETITIONER HAD
WAIVED ITS RIGHT TO CROSS-EXAMINE THE . . . Deposition is chiefly a mode of discovery, the
Manarang to his son, Emerito Ramos, Jr., both letters primary function of which is to supplement the
being now in his possession by reason of his duties as DEPONENT, EMERITO M. RAMOS, SR.
pleadings for the purpose of disclosing the real points
President and Chairman of EMRASON. (TSN, 05 of dispute between the parties and affording an
December 1994, pp. 70-85)[18] III. WHETHER OR NOT RESPONDENT adequate factual basis during the preparation for trial.
APPELLATE COURT COMMITTED GRAVE The liberty of a party to avail itself of this procedure,
ALIs Motion for Reconsideration was likewise ABUSE OF DISCRETION AMOUNTING TO as an attribute of discovery, is well-nigh unrestricted
denied by the Court of Appeals. LACK OR EXCESS OF JURISDICTION WHEN IT if the matters inquired into are otherwise relevant and
SUSTAINED THE RULING OF THE LOWER not privileged, and the inquiry is made in good faith
COURT IN FINDING THE DEPOSITION OF and within the bounds of the law.
On 10 June 1999, Emerito Ramos, Sr. died at the age WITNESS EMERITO M. RAMOS, SR. AS
of 92 years old. Plaintiff then filed before the trial ADMISSIBLE IN EVIDENCE.[31]
court a motion to introduce in evidence the Depositions maybe taken at anytime after the
deposition of Emerito Ramos, Sr.[19] The motion institution of any action, whenever necessary or
was opposed by ALI.[20] ASB filed its Reply.[21] The first issue is not novel. The same has been in fact convenient.[35]
ALI thereafter filed its Rejoinder[22] and ASB its passed upon twice by the Court of Appeals.
Sur-rejoinder.[23] In this case, the trial court permitted the taking of
As defined, the term deposition is sometimes used in Emerito Ramos, Sr.s deposition chiefly because of his
On 28 September 1999, the trial court issued its a broad sense to describe any written statement advance age which ground is considered valid and
Order setting aside the opposition of ALI and verified by oath. In its more technical and appropriate justified under the Rules of Court.[36]
admitting in evidence the deposition of Emerito sense, the meaning of the word is limited to written
Ramos, Sr.[24] Motion for Reconsideration filed by testimony of a witness given in the course of a
judicial proceeding in advance of the trial or hearing ALI contends that the prerequisites of a valid
ALI was denied in an Order dated 24 December deposition were disregarded. It repeatedly insists that
1999. [25] ALI again elevated the case to the Court of upon oral examination. A deposition is the testimony
of a witness, put or taken in writing, under oath or what transpired from 22 November 1994 to 26
Appeals by way of Petition for Review on January 1995 was simply a recordation of testimony
Certiorari[26] under Rule 65 of the Rules of Court. affirmation, before a commissioner, examiner or
other judicial officer, in answer to interlocutory and of Emerito Ramos, Sr. intended to form part of a
cross-interlocutory, and usually subscribed by the deposition for submission to the trial court but not a
witnesses.[32] deposition itself considering that it never underwent
the process of a valid deposition taken under Rules deposition not signed does not preclude its use during one which a party can demand at all times. The right
23 and 132 of the Rules of Court, as the deposition the trial. A deponents signature to the deposition is is a personal one which may be waived by conduct
was not completed, signed, certified, filed or offered not in all events indispensable since the presence of amounting to a renunciation of the right of cross-
before the court a quo, hence, under the Rules, signature goes primarily to the form of deposition. examination, thus, where a party has had the
considered incompetent evidence.[37] The requirement that the deposition must be opportunity to cross-examine a witness but failed to
examined and signed by the witness is only to ensure avail himself of it, he necessarily forfeits the right to
It must be noted that the depositions of Emerito that the deponent is afforded the opportunity to cross-examine.[44] As rightly observed by the Court
Ramos, Sr., taken on the dates earlier mentioned, correct any errors contained therein and to ensure its of Appeals:
were substantially made in accordance with the accuracy.[40] In any event, the admissibility of the
requirements of the Rules. In fact, in its Petition deposition does not preclude the determination of its Applying the foregoing precept in the light of the
before the Court of Appeals, ALI confirmed the probative value at the appropriate time. The facts obtaining in the instant case, We are not inclined
taking of deposition on said dates and that it was duly admissibility of evidence should not be equated with to indulge the PETITIONER in its argument that it
represented by its counsel during the proceedings. As weight of evidence. The admissibility of evidence was deprived of its constitutional right to due
to whether the manner by which the deposition was depends on its relevance and competence while the process. Verily, as may be readily gleaned from the
taken faithfully complied with the requirements weight of evidence pertains to evidence already records, the PETITIONER was afforded several
under the Rules of Court, it is not disputed that the admitted and its tendency to convince and persuade. opportunities to cross-examine the deponent ATTY.
deposition was taken inside the courtroom of the trial [41] RAMOS. However, despite its knowledge of
court, before the clerk of court. A stenographer was deponents old age and frail health, PETITIONER
present, tape recorders and a video camera were even This Court has observed that the trial court has chose to squander its right to subject under
utilized to record the proceedings, in the presence of painstakingly gone over every objection of ALI appropriate test the assertions raised by the witness in
all the opposing counsels of record including ALIs. contained in its Motion dated 30 January 1995 and his deposition. It is worth noting that the
[38] The following factual findings remain ruled on every single objection in the Order dated 05 PETITIONER, following the termination of the direct
uncontroverted: May 1995 and these objections were again taken up examination of the deceased ATTY. RAMOS,
in the Order of the trial court dated 07 September requested for a setting of the cross-examination.
To reiterate, the deposition of the late Emerito 1995. On this point, we find no compelling reason to During the supposed date of cross-examination,
Ramos, Sr. was taken inside the courtroom by the disturb the conclusions arrived at by the trial court. however, instead of seizing the chance to exercise the
Clerk of Court in the presence of the parties and their right which they now all too belatedly invoke,
lawyers, and the entire proceedings was transcribed It has been repeatedly held that the deposition PETITIONER moved for the postponement of the
by the stenographers of the Court. Thus, the discovery rules are to be accorded a broad and liberal proceedings. After this Court ruled on its Motion to
requirements that the deposition has to be sealed, treatment and the liberty of a party to make discovery Resolve objections, the PETITIONER again moved
examined and signed by the deponent, and also is well-nigh unrestricted if the matters inquired into for several times for the resetting of the cross-
certified, sealed and signed by the deposition officer are otherwise relevant and not privileged, and the examination to future dates.[45]
would be, to the mind of the court, already inquiry is made in good faith and within the bounds
superfluous. Strict compliance with the formal of the law,[42] as in the case at bar. WHEREFORE, premises considered, the instant
requirements of Rule 23 would hold true in cases of petition is DENIED for lack of merit. The Decision
depositions taken outside the Court. As intimated The second and third issues raised by ALI are that it of the Court of Appeals dated 31 January 2002 and its
earlier, the rules on discovery should not be unduly was denied an opportunity to cross-examine the Resolution dated 23 May 2002 are AFFIRMED.
restricted; otherwise, the perceived advantage of a deponent consequently resulting in its denial of due Costs against petitioner.
liberal discovery procedure in ascertaining the truth process. The records reveal that ALI was given more
and expediting the disposal of litigation would be than enough opportunity to cross-examine the SO ORDERED.
defeated. Be that as it may, the motion for deponent and its failure to exercise such right is
reconsideration filed by defendant Ayala Land, Inc. is solely attributable to its own inaction. At this
DENIED.[39] instance, ALI cannot feign prejudice and denial of
due process. As echoed in several cases,[43] due
On the objection of ALI owing to the lack of process is, in essence, simply an opportunity to be
signature of the deponent, it should be noted that a heard. The right to cross-examine is not an absolute
 properly given to the customers concerned although P41,733.01, the specifics of the misappropriation,
the same were given in kind, as requested by the (i.e., [ineligible]. . . when committed, where
FILADAMS PHARMA, INC., petitioner, vs. customers. In a spot check conducted in his area in committed, how much per act of misappropriation or
HONORABLE COURT OF APPEALS and January and February of 1994, the stock overages in was the misappropriation a one-act deal[ineligible])
ANTONIO FERIA, respondents. his possession were segregated and returned to the were all conclusions a general recitals (sic) of the fact
company but he was not given the returned goods slip of commission/omission followed by the personal
DECISION (RGS). He also returned various items or medicines conclusion of guilt by the complainant which are not
on March 14, 1994 amounting to P19,615.49 but sustained by admissible evidence. 175[6]
what was reflected in the inventory report was only
CORONA, J.: P8,185.30. He maintained that he neither Petitioner filed a motion for reconsideration but this
misappropriated nor converted the subject sums of was denied by 1st Assistant City Prosecutor Gerona
This is a petition for review under Rule 45 of the money for his personal use or benefit. If ever, his who ruled that there was no manifest error or grave
Rules of Court seeking to annul and set aside the obligation was purely civil in nature and the company abuse of discretion to justify reversal, alteration or
resolution170[1] dated May 29, 1997 of the Court of in fact accepted his partial payment of P3,000 modification of the challenged resolution.176[7]
Appeals denying petitioner's petition for certiorari through his wife in a conference held at petitioners
and its resolution171[2] dated January 23, 1998 office on September 13, 1994.173[4]
denying petitioner's motion for reconsideration. Petitioner appealed to the Secretary of Justice under
the 1993 Revised Rules on Appeals from Resolutions
In a reply-affidavit, the internal auditor of Filadams in Preliminary Investigations or Reinvestigations.177
The antecedent facts follow. asserted that respondent occupied a position of trust [8]
and confidence. He was not given a new cash
Petitioner Filadams Pharma, Inc. (Filadams) was a advance but merely a replenishment of the used But the Department of Justice (DOJ), through the
corporation engaged in the business of selling revolving fund. The cash rebates were never received Office of the Chief State Prosecutor,178[9] also
medicines to wholesalers. Private respondent Antonio by the customer as confirmed by the customer dismissed the appeal:
Feria was its sales representative from November 3, himself. Respondent signed the physical inventory
1993 until his dismissal on March 9, 1994. In an report so he could not claim that he made returns that
audit conducted sometime between March 10 to 26, were not recorded. Paying back the amount of P3,000 While it is an undisputed fact that respondent
1994, respondent Feria was found accountable for to the company was an acknowledgment of his stock incurred some accountabilities with Filadams during
P41,733.01 representing unsold but unreturned stocks shortages and proof of his breach of trust and the duration of his employment, as shown by
and samples, unremitted collections and unliquidated confidence resulting in the company's damage and respondent's payment of the amount of P3,000.00 on
cash advances. Filadams alleged that these shortages prejudice.174[5] September 13, 1994, mere acknowledgment by
and accountabilities were admitted by respondent respondent of these accountabilities does not of itself
through his wife and counsel in a conference held at establish that estafa under par. 1 (b) was committed.
The Assistant City Prosecutor of Quezon City What is apparent from the evidence adduced is the
its office but despite repeated demands, respondent dismissed the complaint-affidavit for lack of cause of
failed to settle them to its damage and prejudice.172[3] necessity for the parties to sit down together and
action: make an accounting of the alleged accountability.
Complainant failed to present any evidence of
In his defense, respondent denied the charge. He A careful examination of the affidavit complaint plus conversion of the property to the benefit of the
averred that, although he was an agent of the the reply affidavit of complainant failed to state the respondent or of some other person. Respondent's
corporation, he was not the trustee of its products. ultimate facts constituting the cause of action. failure to return the goods or cash advances in this
The cash advances were spent, as intended, for case is not sufficient proof of conversion. If at all,
promoting the products of the company and it was While complainant states that their audit resulted in respondent's liability to the company is purely civil in
only the unexpended amount that was supposed to be Feria's misappropriation of the company's products,
returned by way of liquidation. The cash rebates were unremitted collections, unreturned advances and 175
unsubmitted sales proceeds in the total amount of
170 176
171 173 177
172 174 178
nature as the acts complained of do not constitute the Before anything else, we need to clarify some ground and awards are appealable to the Court of Appeals.
crime of estafa.179[10] rules. This case was elevated to the Court of Appeals This is so because the awards of voluntary arbitrators
by way of a petition on certiorari under Rule 65 of become final and executory upon the lapse of the
On the ground of grave abuse of discretion, Filadams the 1997 Rules of Civil Procedure. The Court of period to appeal; and since their awards determine
filed with the Court of Appeals a petition for Appeals dismissed the petition for certiorari on the the rights of parties, their decisions have the same
certiorari under Rule 65 of the Rules of Court ground that the proper remedy was petition for effect as judgments of a court. Therefore, the proper
seeking to annul the above-quoted decision of the review under Revised Circular No. 1-91, now remedy from an award of a voluntary arbitrator is a
DOJ dismissing its appeal and affirming the embodied in Rule 43 of the 1997 Rules of Civil petition for review to the Court of Appeals, following
resolution of the Assistant City Prosecutor of Quezon Procedure. Rule 43 applies to appeals from Revised Administrative Circular No. 1-95, which
City. The Court of Appeals denied the petition on two judgments or final orders of the Court of Tax Appeals provided for a uniform procedure for appellate
grounds: (1) the proper remedy for the petitioner was and from awards, judgments, final orders or review of all adjudications of quasi-judicial entities,
a petition for review under Rule 45 and not a petition resolutions of or authorized by any quasi-judicial which is now embodied in Rule 43 of the 1997 Rules
for certiorari inasmuch as certiorari was available agency in the exercise of quasi-judicial functions to of Civil Procedure.
only if there was no appeal or any plain, speedy and the Court of Appeals.182[13] The question is: was the
adequate remedy in the ordinary course of law, and Office of the Prosecutor of Quezon City a quasi- On the other hand, the prosecutor in a preliminary
(2) assuming that a petition for certiorari was proper, judicial agency whose resolutions were appealable to investigation does not determine the guilt or
the DOJ decision was not marked by grave abuse of the Court of Appeals under Rule 43? In Bautista vs. innocence of the accused. He does not exercise
discretion.180[11] Court of Appeals,183[14] we ruled: adjudication nor rule-making functions. Preliminary
investigation is merely inquisitorial, and is often the
Hence, the petitioner filed the instant petition seeking Petitioner submits that a prosecutor conducting a only means of discovering the persons who may be
to annul the decision of the Court of Appeals and preliminary investigation performs a quasi-judicial reasonably charged with a crime and to enable the
raising the following issues: function, citing Cojuangco v. PCGG, Koh v. Court of fiscal to prepare his complaint or information. It is
Appeals, Andaya v. Provincial Fiscal of Surigao del not a trial of the case on the merits and has no
I Norte and Crespo v. Mogul. In these cases this Court purpose except that of determining whether a crime
held that the power to conduct preliminary has been committed and whether there is probable
investigation is quasi-judicial in nature. But this cause to believe that the accused is guilty thereof.
WHETHER OR NOT APPEAL AND NOT statement holds true only in the sense that, like quasi- While the fiscal makes that determination, he cannot
CERTIORARI IS THE PROPER REMEDY IN judicial bodies, the prosecutor is an office in the be said to be acting as a quasi-court, for it is the
ASSAILING THE TWO RESOLUTIONS OF THE executive department exercising powers akin to those courts, ultimately, that pass judgment on the accused,
CHIEF STATE PROSECUTOR FINDING THE of a court. Here is where the similarity ends. not the fiscal.
ABSENCE OF PROBABLE CAUSE.
A closer scrutiny will show that preliminary Hence, the Office of the Prosecutor is not a quasi-
II investigation is very different from other quasi- judicial body; necessarily, its decisions approving the
judicial proceedings. A quasi-judicial body has been filing of a criminal complaint are not appealable to
WHETHER OR NOT BOTH THE CHIEF STATE defined as "an organ of government other than a court the Court of Appeals under Rule 43. Since the ORSP
PROSECUTOR AND THE COURT OF APPEALS and other than a legislature which affects the rights of (Office of the Regional State Prosecutor) has the
HAVE COMMITTED A (SIC) GRAVE ABUSE OF private parties through either adjudication or rule- power to resolve appeals with finality only where the
DISCRETION IN DISREGARDING THE making." penalty prescribed for the offense does not exceed
GUIDELINES SET BY THIS HON. SUPREME prision correccional, regardless of the imposable
COURT IN DETERMINING THE EXISTENCE OF In Luzon Development Bank v. Luzon Development fine, the only remedy of petitioner, in the absence of
A PROBABLE CAUSE TO WARRANT THE Bank Employees, we held that a voluntary arbitrator, grave abuse of discretion, is to present her defense in
FILING OF AN INFORMATION IN COURT.181[12] whether acting solely or in a panel, enjoys in law the the trial of the case.
status of a quasi-judicial agency, hence his decisions
179 With our ruling in Bautista that the Office of the
180 182 Prosecutor was not covered by the appellate process
181 183 under Rule 43 of the Rules of Court, what then was
petitioner's remedy from the resolution of the commission, or for administration, or under any other trust is circumstantial evidence of
Assistant Prosecutor dismissing his complaint? Based obligation involving the duty to make delivery of, or misappropriation.190[21] For example, in an agency
on the 1993 Revised Rules on Appeals from to return, the same; for the sale of jewelry, it is the agent's duty to return
Resolutions in Preliminary Investigations or the jewelry upon demand of the owner and the failure
Reinvestigations now the 2000 NPS184[15] Rule on 2. that there is a misappropriation or to do so is evidence of conversion of the property by
Appeals the petitioner could appeal to the Secretary conversion of such money or property by the offender the agent.191[22] In other words, the demand for the
of Justice. In this case, the petitioner did appeal to the or denial on his part of such receipt; return of the thing delivered in trust and the failure of
Secretary of Justice but his appeal was dismissed. His the accused to account for it are circumstantial
motion for reconsideration was also dismissed. Since 3. that such misappropriation or conversion or evidence of misappropriation. However, this
there was no more appeal or other remedy available denial is to the prejudice of another; and, presumption is rebuttable. If the accused is able to
in the ordinary course of law, the petitioner correctly satisfactorily explain his failure to produce the thing
filed a petition for certiorari with the Court of delivered in trust, he may not be held liable for
Appeals on the ground of grave abuse of discretion. 4. that there is a demand made by the offended estafa.192[23]
party on the offender.187[18]
The next question now arises: was the Court of Did private respondent Feria satisfactorily explain his
Appeals correct in dismissing the petition for The first, third and fourth elements were duly failure to produce the goods delivered to him in trust
certiorari on the ground that there was no grave established by the complaint-affidavits and were not as well as turn over his collections upon demand by
abuse of discretion on the part of the DOJ (in disputed by the parties. What was disputed was the petitioner? His own counter-affidavit showed that
dismissing the petitioner's appeal, thus affirming the whether the element of misappropriation, the most he did not. He claimed that he returned various items
resolution of the Assistant City Prosecutor)? The important element of the crime charged, was shown sometime in March, 1994 amounting to P19,615.49.
Court of Appeals cryptic ruling on this matter read: by the affidavits to engender a well-founded belief He, however, neither presented any supporting
that a crime was committed and the respondent was evidence nor clarified why he failed to account for
probably guilty thereof.188[19] Invoking Ilagan vs. his collections. His explanations, on the other hand,
His ruling that "in the crime of estafa under Art. 315 Court of Appeals,189[20] petitioner contends that it is
par. 1 (b), it is an essential element that there be proof regarding his unliquidated cash advances and unused
the mere failure to turn over or to deliver to the cash rebates were also inadequate inasmuch they
of misappropriation or conversion", is not principal the amounts collected, despite the duty to
inconsistent with the ruling of the Supreme Court in were self-serving and unsubstantiated.193[24]
do so, that constitutes the operative fact in the crime
Ilagan vs. Court of Appeals, 239 SCRA 575, on of estafa through unfaithfulness or abuse of
which petitioner relies that the operative act in the confidence. In short, the mere failure of respondent In its reply-affidavit, petitioner was able to controvert
perpetration of estafa under the said article and Feria to turn over the stock shortages, money the explanations of respondent. The unrecorded
paragraph is the failure of the agent to turn over or collections, cash advances and unused cash rebates, returns claimed by respondent were belied by the
deliver to his principal the amounts he collected despite demand and the duty to do so, constituted physical inventory report prepared and signed by
despite the duty to do so.185[16] prima facie evidence of misappropriation. both the warehouseman and respondent himself.
Respondent admitted that he was given checks for
To determine whether there was probable cause cash rebates to particular customers. Since the rebates
The essence of estafa under Article 315 (1)(b) of the given to customers were in the form of goods, as
warranting the filing of the information for estafa Revised Penal Code is the appropriation or
through misappropriation or with abuse of admitted by the respondent himself, why did he
conversion of money or property received, to the therefore not return the checks given to him? With
confidence186[17], the presence of the following prejudice of the owner thereof. It takes place when a
elements assumes critical importance: respect to the unliquidated cash advances, petitioner
person actually appropriates the property of another clarified that it was incorrect for respondent to allege
for his own benefit, use and enjoyment. The failure to that he had already liquidated his cash advances
1. that money, goods, or other personal account, upon demand, for funds or property held in
property is received by the offender in trust, or on when he was given another P1,500 after his first cash

190
184 187 191
185 188 192
186 189 193
advance of P2,500. The truth was that he was given 2. when necessary for the orderly Prosecutor dated January 8, 1997 dismissing the
another P1,500 not because he had already liquidated administration of justice or to avoid oppression or appeal of the petitioner and affirming the resolution
his first cash advance of P2,500 but because it was multiplicity of actions; of the Assistant City Prosecutor of Quezon City dated
the company's practice to replenish the revolving February 28, 1995 dismissing petitioner's complaint
fund to its original amount. Therefore, the release of 3. when there is a prejudicial question which is for estafa against private respondent Antonio Feria is
a new cash advance was not proof of liquidation of sub judice; hereby ANNULLED for grave abuse of discretion.
his previous cash advances. The inventory clearly
showed in fact that he still had not liquidated his cash 4. when the acts of the officer are without or SO ORDERED.
advances.194[25] in excess of authority;
Sandoval-Gutierrez, (Acting Chair), and Carpio-
In the face of petitioners fully documented evidence 5. where the prosecution is under an invalid Morales, JJ., concur.
(inventory reports, receipts, balances of law, ordinance or regulation;
accountabilities, computations of short/over samples, Vitug, (Chairman), J., on official business leave
job description and demand letter addressed to
respondent), all respondent Feria could offer were a 6. when double jeopardy is clearly apparent;
lame denial and an unsubstantiated, off-tangent
explanation. He offered absolutely no clarification 7. where the court has no jurisdiction over the
concerning the unremitted collections and offense;
unreturned, unused check rebates.
8. where it is a case of persecution rather than
The rule that the failure to account, upon demand, for prosecution;
funds or property held in trust is circumstantial
evidence of misappropriation applies without doubt 9. where the charges are manifestly false and
in the present case. Since a preliminary investigation motivated by the lust for vengeance;
is merely a determination of whether there is a
sufficient ground to engender a well-founded belief 10. when there is clearly no prima facie case
that a crime has been committed and the respondent against the accused and a motion to quash on that
is probably guilty thereof, and should be held for ground has been denied.197[28] (emphasis ours)
trial,195[26] we find the documented allegations in the
complaint-affidavit and reply-affidavit of petitioner
From the records, it is clear to us that a prima facie
Filadams sufficient to generate such well-founded
case for estafa exists. The dismissal of petitioners
belief.
complaint-affidavit and the DOJ's affirmance thereof
on appeal was a patent error constituting grave abuse
While it is this Courts general policy not to interfere of discretion within the ambit of exception no. 4
in the conduct of preliminary investigations, leaving above.
the investigating officers sufficient discretion to
determine probable cause,196[27] we have nonetheless
WHEREFORE, the petition is hereby GRANTED.
made some exceptions to the general rule, such as:
The resolution of the Court of Appeals dated May 29,
1997 finding no grave abuse of discretion and its
1. when necessary to afford adequate resolution dated January 23, 1998 denying
protection to the constitutional rights of the accused; petitioner's motion for reconsideration are hereby
REVERSED and SET ASIDE; and the resolution of
194 the Department of Justice through the Chief State
195
196 197