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9/6/2018 G.R. No.


Republic of the Philippines



G.R. No. 154115 November 29, 2005

PHILIP S. YU, Petitioner,

HON. COURT OF APPEALS, Second Division, and VIVECA LIM YU, Respondents.


Tinga, J.:

This treats of the petition for review on certiorari of the Court of Appeals’ Decision and Resolution in CA G.R. SP
No. 66252 dated 30 April 20021 and 27 June 2002,2 respectively, which set aside the Order of the Regional Trial
Court (RTC) of Pasig City3 dated 10 May 2001, declaring an application for insurance and an insurance policy as
inadmissible evidence.

The facts of the case are undisputed.

On 15 March 1994, Viveca Lim Yu (private respondent) brought against her husband, Philip Sy Yu (petitioner), an
action for legal separation and dissolution of conjugal partnership on the grounds of marital infidelity and physical
abuse. The case was filed before the RTC of Pasig and raffled to Branch 158, presided by Judge Jose R.

During trial, private respondent moved for the issuance of a subpoena duces tecum and ad testificandum4 to
certain officers of Insular Life Assurance Co. Ltd. to compel production of the insurance policy and application of a
person suspected to be petitioner’s illegitimate child.5 The trial court denied the motion.6 It ruled that the insurance
contract is inadmissible evidence in view of Circular Letter No. 11-2000, issued by the Insurance Commission which
presumably prevents insurance companies/agents from divulging confidential and privileged information pertaining
to insurance policies.7 It added that the production of the application and insurance contract would violate Article
2808 of the Civil Code and Section 5 of the Civil Registry Law,9 both of which prohibit the unauthorized
identification of the parents of an illegitimate child.10 Private respondent sought reconsideration of the Order, but
the motion was denied by the trial court.11

Aggrieved, private respondent filed a petition for certiorari before the Court of Appeals, imputing grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of Judge Hernandez in issuing the 10 May
2001 Order.12 The Court of Appeals summarized the issues as follows: (i) whether or not an insurance policy and
its corresponding application form can be admitted as evidence to prove a party’s extra-marital affairs in an action
for legal separation; and (ii) whether or not a trial court has the discretion to deny a party’s motion to attach
excluded evidence to the record under Section 40, Rule 132 of the Rules of Court.13

According to the Court of Appeals, private respondent was merely seeking the production of the insurance
application and contract, and was not yet offering the same as part of her evidence. Thus, it declared that
petitioner’s objection to the admission of the documents was premature, and the trial court’s pronouncement that
the documents are inadmissible, precipitate.14 The contents of the insurance application and insurance documents
cannot be considered as privileged information, the Court of Appeals added, in view of the opinion of the Insurance
Commissioner dated 4 April 2001 to the effect that Circular Letter No.11-2000 "was never intended to be a legal
impediment in complying with lawful orders".15 Lastly, the Court of Appeals ruled that a trial court does not have the
discretion to deny a party’s privilege to tender excluded evidence, as this privilege allows said party to raise on
appeal the exclusion of such evidence.16 Petitioner filed a motion for reconsideration but to no avail.

In the present petition, petitioner argues that the Court of Appeals blundered in delving into errors of judgment
supposedly committed by the trial court as if the petition filed therein was an ordinary appeal and not a special civil
action. Further, he claims that the Court of Appeals failed to show any specific instance of grave abuse of
discretion on the part of the trial court in issuing the assailed Order. Additionally, he posits that private respondent 1/5
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had already mooted her petition before the Court of Appeals when she filed her formal offer of rebuttal exhibits,
with tender of excluded evidence before the trial court.17

For her part, private respondent maintains that the details surrounding the insurance policy are crucial to the issue
of petitioner’s infidelity and his financial capacity to provide support to her and their children. Further, she argues
that she had no choice but to make a tender of excluded evidence considering that she was left to speculate on
what the insurance application and policy ruled out by the trial court would contain.18

A petition for certiorari under Rule 65 is the proper remedy to correct errors of jurisdiction and grave abuse of
discretion tantamount to lack or excess of jurisdiction committed by a lower court.19 Where a respondent does not
have the legal power to determine the case and yet he does so, he acts without jurisdiction; where, "being clothed
with power to determine the case, oversteps his authority as determined by law, he is performing a function in
excess of jurisdiction."20

Petitioner claims that the Court of Appeals passed upon errors of judgment, not errors of jurisdiction, since it
delved into the propriety of the denial of the subpoena duces tecum and subpoena ad testificandum. The
argument must fail.

While trial courts have the discretion to admit or exclude evidence, such power is exercised only when the evidence
has been formally offered.21 For a long time, the Court has recognized that during the early stages of the
development of proof, it is impossible for a trial court judge to know with certainty whether evidence is relevant or
not, and thus the practice of excluding evidence on doubtful objections to its materiality should be avoided.22As
well elucidated in the case of Prats & Co. v. Phoenix Insurance Co.:23

Moreover, it must be remembered that in the heat of the battle over which he presides a judge of first instance may
possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in fact shown.
When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds
itself embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial,
— a step which this court is always very loath to take. On the other hand, the admission of proof in a court of first
instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to
either litigant, because the trial judge is supposed to know the law; and it is its duty, upon final consideration of the
case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the
cause is prosecuted to the Supreme Court upon appeal, this court then has all the material before it necessary to
make a correct judgment.

In the instant case, the insurance application and the insurance policy were yet to be presented in court, much less
formally offered before it. In fact, private respondent was merely asking for the issuance of subpoena duces
tecum and subpoena ad testificandum when the trial court issued the assailed Order. Even assuming that the
documents would eventually be declared inadmissible, the trial court was not then in a position to make a
declaration to that effect at that point. Thus, it barred the production of the subject documents prior to the
assessment of its probable worth. As observed by petitioners, the assailed Order was not a mere ruling on the
admissibility of evidence; it was, more importantly, a ruling affecting the proper conduct of trial.24

Excess of jurisdiction refers to any act which although falling within the general powers of the judge is not
authorized and is consequently void with respect to the particular case because the conditions under which he was
only authorized to exercise his general power in that case did not exist and therefore, the judicial power was not
legally exercised.25 Thus, in declaring that the documents are irrelevant and inadmissible even before they were
formally offered, much less presented before it, the trial court acted in excess of its discretion.

Anent the issue of whether the information contained in the documents is privileged in nature, the same was
clarified and settled by the Insurance Commissioner’s opinion that the circular on which the trial court based its
ruling was not designed to obstruct lawful court orders.26 Hence, there is no more impediment to presenting the
insurance application and policy.

Petitioner additionally claims that by virtue of private respondent’s tender of excluded evidence, she has rendered
moot her petition before the Court of Appeals since the move evinced that she had another speedy and adequate
remedy under the law. The Court holds otherwise.

Section 40, Rule 132 provides: 2/5
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Sec.40. Tender of excluded evidence.—If documents or things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may
state for the record the name and other personal circumstances of the witness and the substance of the proposed

It is thus apparent that before tender of excluded evidence is made, the evidence must have been formally offered
before the court. And before formal offer of evidence is made, the evidence must have been identified and
presented before the court. While private respondent made a "Tender of Excluded Evidence," such is not the
tender contemplated by the above-quoted rule, for obviously, the insurance policy and application were not
formally offered much less presented before the trial court. At most, said "Tender of Excluded Evidence" was a

manifestation of an undisputed fact that the subject documents were declared inadmissible by the trial court even
before these were presented during trial. It was not the kind of plain, speedy and adequate remedy which private
respondent could have resorted to instead of the petition for certiorari she filed before the Court of Appeals. It did
not in any way render the said petition moot.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated 30 April 2002
and Resolution dated 27 June 2002 are AFFIRMED. Costs against petitioner.



Associate Justice



Associate Justice



Associate Justice Associate Justice

(On Leave)


Associate Justice


I attest that the conclusions in the above Decision had been in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.


Associate Justice
Chairman, Second Division


Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman’s Attestation, it is hereby certified
that the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.


Chief Justice 3/5
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1Rollo, pp. 36-45.

2Id at 48-50.

3Id. at 108-111.

4CA Rollo, p. 47.

5Rollo, p. 171.

6Order dated 10 May 2001, id. 108-111.

7Rollo, p. 109.

8Art. 280. When the father or the mother makes the recognition separately, he or she shall not reveal the
name or the person with whom he or she had the child; neither shall he or she state any circumstance
whereby the other person may be identified.

9Act No. 3753, Section 5, fourth paragraph reads:

In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the
infant or only the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal
in the document the name of the father who refuses to acknowledge the child or to give therein any
information by which such father could be identified.

10Rollo, p. 109.

11Id. at 128.

12Id. at 62-75.

13Id. at 36.

14Id. at 43 citing Rules 34- to 36 of the Revised Rules on Evidence.

15CA Rollo, p. 58.

16Rollo, p. 45.

17Id. at 30.

18Id. at 262-264.

19Sec. 1, Rule 65, Revised Rules on Civil Procedure.

20Punzalan v. Dela Peña, G.R. No. 158543, 21 July 2004, 434 SCRA 601, 609.

21Sec. 34, Rule 132, Revised Rules on Evidence:

Sec. 34. Offer of evidence.- The court shall consider no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified.

22People v. Yatco, et al. ,97 Phil. 940, 946 (1955) citing Prats & Co. v. Phoenix Insurance Co., 52 Phil. 807

2352 Phil. 807, 816-817 (1929). 4/5
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24Rollo, p. 316.

25Broom v. Douglas, 175 Ala. 268, 57 S 860; Tengco v. Jocson, 43 Phil 716 (1922).

26CA Rollo, p. 58. 5/5