San Luis vs. Rojas
Taking the deposition through written
Depositions may be applied even to a non-
resident party
Gerald John S. Hernandez
Facts: Berdex Intl. filed with RTC a
complaint for a sum of money against the
petitioner alleging that a foreign corporation
organized and existing under the laws of US
Is maintaining an action only to enforce its
right by virtue of an isolated transaction with
the petitioner. That petitioner received from
it certain amounts of money which were
meant partly as advances or loan and partly
for the purchase of 40% shares in both Seanet
and Seabest Corporations, however, not a
single share in those corporations was
transferred to private respondent by
petitioner and the shares were retained by the
latter; the parties then agreed to treat all the
payments/advances made by private
respondent to petitioner as the latter's loan;
Petitioner proposed the payment of the loan
within a period of 3 years, which proposal
was accepted by private respondent with the
agreement that in case of non-payment of any
installment on their due dates, the entire
amount shall become due and demandable;
petitioner later refused to sign a formal
contract of loan; petitioner confirmed such
loan and had only paid US$20,000.00 and no
further payment was made despite repeated
demands.
Pre-trial conference was terminated and the
case was subsequently set for trial.
Respondent filed a motion to authorize
deposition-taking thru written interrogatories
alleging that initial presentation of its
evidence is set on May 3, 2002; that
however, 1. all of its witnesses are Americans
who reside or hold office in the USA; 2. that
one of the witnesses is already of advanced
age and travel to the Philippines may be
extremely difficult if not dangerous; 3. there
is a perceived danger to them in the aftermath
of the terrorist attacks on September 11,
2002; 4. that written interrogatories are ideal
in this case since the factual issues are already
very few; that such mode of deposition-
taking will save precious judicial and
government time and will prevent needless
delays in the case.
This was opposed by the petitioner on the
ground that:
1.
interrogatories would deprive the court of the
opportunity to observe the general bearing
and demeanor of witnesses;
2.It will not necessarily save precious judicial
and government time but may in fact
lengthen the trial, as both parties will have the
right to review and to object to interrogatories
submitted by the other party;
3.The claim that travel to the Philippines
would be dangerous for the witnesses who
are all Americans is frivolous, since
respondent has not presented evidence that
the US government has prohibited its citizens
from traveling to the Philippines; and if ever
there was such prohibition, it was not binding
on our own legal system. Old age was not a
valid reason.
In RTC the court granted respondent’s
Motion to take deposition thru written
interrogatories
In CA, it affirmed the RTC ruling in favor of
private respondent.
Hence, petition in SC.
Issue: W/N depositions may be applied by a
non-resident party?
Ruling: Yes. Unequivocally, the rule does
not make any distinction or restriction as to
who can avail of deposition. The fact that
private respondent is a non-resident foreign
corporation is immaterial. The rule clearly
provides that the testimony of any person
may be taken by deposition upon oral
examination or written interrogatories, at the
instance of any party. Depositions serve as a
device for ascertaining the facts relative to
the issues of the case. The evident purpose is
to enable the parties, consistent with
recognized privileges, to obtain the fullest
possible knowledge of the issues and facts
before civil trials and thus prevent the said
trials from being carried out in the dark.
Thus, the SC find no grave abuse of
discretion committed by the RTC in granting
private respondent's MOTION (To Allow
Deposition-Taking Through Written
Interrogatories) considering private
respondent's allegation in its MOTION that
its witnesses are all Americans residing in the
U.S. This situation is one of the exceptions
for its admissibility under Section 4(c)(2),
Rule 23 of the Rules of Court, i.e., that the
witness resides at a distance of more than one
hundred (100) kilometers from the place of
trial or hearing, or is out of the Philippines,
unless it appears that his absence was
procured by the party offering the deposition.
Dasmarinas Garments Inc. vs. Hon. Reyes
Deposition of foreign nationals whose
location is outside of the Philippines.
Gerald John S. Hernandez
Facts: American President Lines (APL) sued
the petitioner for sum of money. During the
trial, instead of presenting its witness, APL
filed a motion praying that it intends to take
the depositions of the Taiwan nationals.
Motion was opposed by the petitioner.
The RTC granted the motion by the APL
since it was in compliance with the rules on
taking testimony by deposition upon written
interrogatories under the Rules of Court. It
Argued that "the Asian Exchange Center, Inc.
being the authorized Philippine
representative in Taiwan, may take the
testimonies of plaintiff's witnesses residing
there by deposition, but only upon written
interrogatories so as to give defendant the
opportunity to cross-examine the witnesses
by serving cross-examination."
In CA, it affirmed the RTC ruling.
Hence, petition in SC.
Issue: W/N the RTC is correct in granting the
motion for deposition filed by the APL?
Ruling: Yes. In keeping with principle of
promoting the just, speedy and inexpensive
disposition of every action and proceeding
(Sec. 6, Rule 1 Rules of Court). Depositions
are allowed as a departure from the accepted
and usual judicial proceedings of examining
witnesses in open court where their demeanor
could be observed by the trial judge;" It is
allowed provided the deposition is taken in
accordance with the applicable provisions of
the Rules of Court(that is, with leave of court
if the summons have been served, without
leave of court if an answer has been
submitted) And provided, further, that a
circumstance or their admissibility exists.
(Sec, 4, Rule 23, Rules of Court).
Depositions are chiefly a mode of discovery.
They are intended as a means to compel
disclosure of facts resting in the knowledge
of a party or other person which are relevant
in some suit or proceeding in court. There is
no rule that limits deposition-taking only to
the period of pre-trial or before it; no
prohibition against the taking of depositions
after pre-trial. Indeed, the law authorizes the
taking of depositions of witnesses before or
after an appeal is taken from the judgment of
a Regional Trial Court "to perpetuate their
testimony for use in the event of further
proceedings in the said court" (Rule 134,
Rules of Court), and even during the process
of execution of a final and executory
judgment.
Fortune Corporation vs. CA
Mode of discovery will not bar
a party in availing other modes
Gerald John S. Hernandez
Facts: An action for breach of contract was
filed by petitioner Fortune Corporation
against respondent Inter-Merchants
Corporation. After respondent corporation
had filed its Answer, petitioner served the
former with written interrogatories pursuant
to Rule 25 of the Rules of Court. The
interrogatories were answered by respondent
corporation through its board chairman.
Petitioner served upon private respondent a
Notice to Take Deposition Upon Oral
Examination in accordance with Section 15,
Rule 24. Private respondent filed an Urgent
Motion Not To Take Deposition/Vehement
Opposition to Plaintiff's Notice to Take
Deposition Upon Oral Examination, alleging
that : (a) herein petitioner has previously
availed of one mode of discovery, that is, the
written interrogatories which practically
covered all the claims, counterclaims and
defenses in the case; (b) there is absolutely no
sound reason or justification advanced for the
taking of the oral deposition; (c) such taking
would cause annoyance, embarrassment and
oppression upon the prospective deponent,
Juanito A. Teope; (d) Mr. Teope has no
intention of leaving the country; and (e) the
intended deponent is available to testify in
open court if required during the trial on the
merits.
The RTC ordered that the requested
deposition shall not be taken.
Petitioner filed an original action for
certiorari before the Supreme Court. In a
resolution, SC referred the case to the Court
of Appeals for consideration and adjudication
on the merits. However, Respondent CA
promulgated a decision dismissing the
petition
Hence, petition in SC.
Issue: W/N availing one mode of discovery
will bar the party in availing the other modes?
Ruling: No. As a general rule, the scope of
discovery is to be liberally construed so as to
provide the litigants with information
essential to the expenditious and proper
litigation of each of the facts in dispute.
Moreover, it cannot be disputed that the
various methods of discovery as provided for
in the Rules are clearly intended to be
cumulative, as opposed to alternative or
mutually exclusive. Supreme Court held that
under the present Rules the fact that a party
has resorted to a particular method of
discovery will not bar subsequent use of other
discovery devices, as long as the party is not
attempting to circumvent a ruling of the
court, or to harass or oppress the other party.
As a matter of practice, it will often be
desirable to resort to both interrogatories and
depositions in one or the other sequence.
Additional lines of inquiry may come to light
after the deposition has been taken, as to
which written interrogatories probably would
be adequate, and there is no reason why the
examining party should not be entitled to
obtain all the relevant information he desires
if no substantial prejudice is done to the party
from whom discovery is sought.
Jonathan Landoil Intl. Co. Inc vs.
Mangudadatu
Deposition
Gerald John S. Hernandez
Facts: Respondent Spouses Mangudadatu
filed with the Regional Trial Court (RTC) a
Complaint for damages against Petitioner
Jonathan Landoil International Co., Inc.
Initially, petitioner had countered with a
Motion to Dismiss; but when this was denied,
it filed its Answer.
Parties submitted their respective Pretrial
Briefs. Trial proceeded without the
participation of petitioner, whose absence
during the pretrial, had led the trial court to
declare it in default.
Petitioner received a copy of a Writ of
Execution. Alleging that it had yet to receive
a copy of an Order resolving the Omnibus
Motion for New Trial, petitioner filed a
Motion to Quash/Recall Writ of Execution.
Later on counsels of petitioner, Attys. Jaime
L. Mario Jr. and Dioscoro G. Peligro -
submitted separate withdrawals of
appearance. The law firm Ong Abad Santos
& Meneses filed an Entry of Appearance with
Supplement to Motion to Quash/Recall Writ
of Execution.
Petitioner received a Sheriff’s Notice
regarding the public auction sale of its
properties. By reason of the immediate threat
to implement the Writ of Execution, it filed
with the CA on January 14, 2002, a Petition
for Prohibition seeking to enjoin the
enforcement of the Writ until the resolution
of the Motion to Quash.
Petitioner received a copy of respondents’
Vigorous Opposition (Re: Motion to
Quash/Recall Writ of Execution, and its
Supplement). Attached to this pleading were
two separate Certifications supposedly issued
by the postmaster of Tacurong City,
affirming that the Order denying the Motion
for New Trial had been received by
petitioner’s two previous counsels of record.
The Certification pertaining to Atty. Peligro
alleged that a certain Michelle Viquira had
received on October 19, 2001, a copy of the
Order intended for him. The Certification as
regards Atty. Mario stated that he had
personally received his copy on December
21, 2001.
-Petitioner personally served counsel for
respondents a Notice to Take Deposition
Upon Oral Examination of Attys. Mario and
Peligro. The Deposition was intended to
prove that petitioner had not received a copy
of the Order denying the Omnibus Motion for
New Trial.
At 12:00 noon of the same day, respondents
sent petitioner a fax message via JRS
Express, advising it that they had filed a
Motion to Strike Off from the records the
Notice to Take Deposition; and asking it not
to proceed until the RTC would have
resolved the Motion,
In RTC, the Petition for Prohibition denied as
well as the Motion to Quash denied.
In CA, the court denied the petition. It ruled
that petitioner could no longer avail itself of
a deposition under Rule 23 of Rules of Court,
since trial had already been terminated.
 Issue: W/N the RTC/CA erred in declaring
that the taking of the depositions of
petitioner’s witnesses was improper?
Ruling: Yes, they erred but the RTC did not
totally disregard petitioner’s depositions. In
its Resolution, the trial court considered and
weighed against all other evidence that its
Order denying the Motion for New Trial filed
by petitioner had not been received by the
latter’s counsels. Despite their depositions,
petitioner failed to prove convincingly its
denial of receipt.
A deposition may be taken with leave of court
after jurisdiction has been obtained over any
defendant or over property that is the subject
of the action; or, without such leave, after an
answer has been served. Deposition is
chiefly a mode of discovery, the primary
function of which is to supplement the
pleadings for the purpose of disclosing the
real points of dispute between the parties and
affording an adequate factual basis during the
preparation for trial. The liberty of a party to
avail itself of this procedure, as an attribute
of discovery, is "well-nigh unrestricted if the
matters inquired into are otherwise relevant
and not privileged, and the inquiry is made in
good faith and within the bounds of the law."
Limitations would arise, though, if the
examination is conducted in bad faith; or
in such a manner as to annoy, embarrass,
or oppress the person who is the subject of
the inquiry; or when the inquiry touches
upon the irrelevant or encroaches upon
the recognized domains of privilege.
As a mode of discovery resorted to before
trial, deposition has advantages, as follows:
1. It is of great assistance in ascertaining the
truth and in checking and preventing perjury;
2. It is an effective means of detecting and
exposing false, fraudulent, and sham claims
and defenses;
3.It makes available in a simple, convenient,
and often inexpensive way facts which
otherwise could not have been proved, except
with great difficulty and sometimes not at all;
4.It educates the parties in advance of trial as
to the real value of their claims and defenses,
thereby encouraging settlements out of court;
5.It expedites the disposal of litigation, saves
the time of the courts, and clears the docket
of many cases by settlements and dismissals
which otherwise would have to be tried;
6.It safeguards against surprise at the trial,
prevents delays, and narrows and simplifies
the issues to be tried, thereby expediting the
trial;
7. It facilitates both the preparation and the
trial of cases.
The Rules of Court and jurisprudence,
however, do not restrict a deposition to the
sole function of being a mode of discovery
before trial. Under certain conditions and
for certain limited purposes, it may be
taken even after trial has commenced and
may be used without the deponent being
actually called to the witness stand. In
Dasmariñas Garments v. Reyes, we allowed
the taking of the witnesses’ testimonies
through deposition, in lieu of their actual
presence at the trial.
Thus, "depositions may be taken at any
time after the institution of any action,
whenever necessary or convenient. There
is no rule that limits deposition-taking only
to the period of pre-trial or before it; no
prohibition against the taking of
depositions after pre-trial." There can be
no valid objection to allowing them during
the process of executing final and
executory judgments, when the material
issues of fact have become numerous or
complicated.
In keeping with the principle of promoting
the just, speedy and inexpensive disposition
of every action and proceeding, depositions
are allowed as a "departure from the accepted
and usual judicial proceedings of examining
witnesses in open court where their demeanor
could be observed by the trial judge."
Depositions are allowed, provided they are
taken in accordance with the provisions of the
Rules of Court (that is, with leave of court if
the summons have been served, without leave
of court if an answer has been submitted); and
provided, further, that a circumstance for
their admissibility exists (Section 4, Rule 23,
Rules of Court).
The Rules of Court vests in the trial court
the discretion to order whether a
deposition may be taken or not under
specified circumstances that may even
differ from those the proponents have
intended. However, it is well-settled that
this discretion is not unlimited. It must be
exercised -- not arbitrarily, capriciously or
oppressively -- but in a reasonable manner
and in consonance with the spirit of the
law, to the end that its purpose may be
attained.
When a deposition does not conform to the
essential requirements of law and may
reasonably cause material injury to the
adverse party, its taking should not be
allowed. This was the primary concern in
Northwest Airlines v. Cruz. In that case, the
ends of justice would be better served if the
witness was to be brought to the trial court to
testify. The locus of the oral deposition
therein was not within the reach of ordinary
citizens, as there were time constraints; and
the trip required a travel visa, bookings, and
a substantial travel fare. In People v. Webb,
the taking of depositions was unnecessary,
since the trial court had already admitted the
Exhibits on which the witnesses would have
testified.
The Rules of Court provides adequate
safeguards to ensure the reliability of
depositions. The right to object to their
admissibility is retained by the parties, for the
same reasons as those for excluding evidence
if the witness were present and had testified
in court; and for errors and irregularities in
the deposition. As a rule, depositions should
be allowed, absent any showing that taking
them would prejudice any party.
Depositions may be used for the trial or for
the hearing of a motion or an interlocutory
proceeding, under the circumstances
specified under Rule 23 Sec. 4 the case
involved a circumstance that fell under the
above-cited Section 4(c)(2) of Rule 23 -- the
witnesses of petitioner in Metro Manila
resided beyond 100 kilometers from Sultan
Kudarat, the place of hearing. Petitioner
offered the depositions in support of its
Motion to Quash (the Writ of Execution) and
for the purpose of proving that the trial
court’s Decision was not yet final. As
previously explained, despite the fact that
trial has already been terminated, a
deposition can still be properly taken.
Rosete vs. Lim
Deposition
Gerald John S. Hernandez
Facts: Respondents Lim filed before Branch
77 of the RTC of Quezon City a Complaint
for Annulment, Specific Performance with
Damages against AFP Retirement and
Separation Benefits System (AFP-RSBS),
Espreme Realty and Development
Corporation (Espreme Realty), Alfredo P.
Rosete, Maj. Oscar Mapalo, Chito P. Rosete,
Bank of the Philippine Islands (BPI), and
Register of Deeds of the Province of
Mindoro. It asked, among other things, that
the Deed of Sale executed by AFP-RSBS
covering certain parcels of lands in favor of
Espreme Realty and the titles thereof under
the name of the latter be annulled; and that
the AFP-RSBS and Espreme Realty be
ordered to execute the necessary documents
to restore ownership and title of said lands to
respondents, and that the Register of Deeds
be ordered to cancel the titles of said land
under the name of Espreme Realty and to
transfer the same in the names of
respondents.
Respondents filed a Notice to Take
Deposition Upon Oral Examination giving
notice that on June 18 and 20, 1997 at 9:00
a.m., they will cause the deposition of
petitioners Oscar Mapalo and Chito Rosete.
Petitioners filed an Urgent Ex-Parte Motion
and Objection to Take Deposition Upon Oral
Examination, argued that the deposition may
not be taken without leave of court as no
answer has yet been served and the issues
have not yet been joined since their Answer
was filed ex abudanti cautela, pending
resolution of the Petition for Certiorari
challenging the orders dated 12 March 1996
and 24 May 1996 that denied their Motions
to Dismiss and for Reconsideration.
In RTC, the court denied petitioners’ Motion
for Reconsideration and Supplemental
Motion for Reconsideration, and scheduled
the taking of the Deposition Upon Oral
Examination
In CA, the court affirmed the RTC decision.
Hence, petition in SC.
Issue: W/N oral depositions should not be
allowed without leave of court when Ex
abudante Cautela (to be on the safe side) has
been filed?
Ruling: No. The deposition of a person
confined in prison may be taken only by leave
of court on such terms as the court prescribes.
From the quoted section, it is evident that
once an answer has been served, the
testimony of a person, whether a party or not,
may be taken by deposition upon oral
examination or written interrogatories. In the
case before us, petitioners contend they have
not yet served an answer to respondents
because the answers that they have filed with
the trial court were made ex abudanti cautela.
In other words, they do not consider the
answers they filed in court and served on
respondents as answers contemplated by the
Rules of Court on the ground that same were
filed ex abudanti cautela.
We find petitioners’ contention to be
untenable. Ex abudanti cautela means "out of
abundant caution" or "to be on the safe side."
An answer ex abudanti cautela does not make
their answer less of an answer. A cursory
look at the answers filed by petitioners shows
that they contain their respective defenses.
An answer is a pleading in which a defending
party sets forth his defenses and the failure to
file one within the time allowed herefore may
cause a defending party to be declared in
default. Thus, petitioners, knowing fully well
the effect of the non-filing of an answer, filed
their answers despite the pendency of their
appeal with the Court of Appeals on the
denial of their motion to dismiss. Petitioners’
argument that the issues of the case have not
yet been joined must necessarily fail in light
of our ruling that petitioners have filed their
answers although the same were made ex
abudanti cautela. Issues are joined when all
the parties have pleaded their respective
theories and the terms of the dispute are plain
before the court.
In the present case, the issues have, indeed,
been joined when petitioners, as well as the
other defendants, filed their answers. The
respective claims and defenses of the parties
have been defined and the issues to be
decided by the trial court have been laid
down. We cannot also sustain petitioners’
contention that the lower court erred when it
said that the joinder of issues is not required
in order that Section 1, Rule 23 of the 1997
Rules of Civil Procedure may be availed of.
Under said section, a deposition pending
action may be availed of: (1) with leave of
court when an answer has not yet been filed
but after jurisdiction has been obtained over
any defendant or property subject of the
action, or (2) without leave of court after an
answer to the complaint has been served. In
the instant case, the taking of the deposition
may be availed of even without leave of court
because petitioners have already served their
answers to the complaint. WHEREFORE, all
the foregoing considered, the instant petition
is dismissed for lack of merit.
East Asiatic Co. LTD. vs. CIR
Deposition
Gerald John S. Hernandez
Facts: Respondent Soledad A. Dizon
continuously employed by the petitioner East
Asiatic Co., Ltd., a corporation licensed to
engage in the import, export and shipping
business in the Philippines. Having been
dismissed from the service of the said
company, through its managers, respondent
Dizon filed with the respondent Court of
Industrial Relations a charge of unfair labor
practice against said petitioner company and
rendered judgment against the petitioners.
The record evinces an unexplainable
indifference on the part of the trial judge in
the face of the
technical maneuvers of the parties not in
keeping with the nature of the proceedings.
Each kept urging the other to prove facts
which each one knew very well was within its
own peculiar knowledge, and the court did
nothing to compel both of them to be more
honest and candid to it by disclosing the real
facts within their respective peculiar
knowledge. Thus, instead of requiring
petitioners to reveal on the basis of their
records what general increases, benefits and
bonuses were granted to their employees
which respondent would have been entitled
to share had she not been laid-off, the Court
merely waited for evidence to be presented
by the respondent, only to later on disregard
them, rightly or wrongly, as incompetent, by
applying the strict rules of evidence for
ordinary courts. Consequently, the ruling of
the lower court denying respondent’s claim
for fringe benefits, etc. on the ground that
she “did not present evidence in support”
thereof cannot stand.
Issue: W/N the CIR failed to observe the
modes of discovery under the Rules of Court?
Ruling: Yes. The discovery procedures
authorized by the Rules of Court are by their
very nature precisely suitable to proceedings
of the kind now before us, since the main
objective of discovery is to enable one party
to acquire knowledge of relevant facts which
otherwise would be in the peculiar
knowledge of the adverse party alone and for
that party to afterwards make use of such
acquired knowledge either as evidence itself
or as a means of preparing evidence in its
favor, and it is in proceedings for the
determination of backwages in cases of
reinstatement of illegally discharged
employees that the parties usually indulge in
the practice of unnecessarily trying to
conceal evidentiary facts from each other. As
a matter of fact, under the broad control that
the Industrial Court has over procedural
matters and in order to expedite proceedings
and go directly to the substantial merits of the
claims of the parties, it can even adjust and
modify the application of the modes of
discovery in cases before it accordingly as the
demands of the particular situation before it
may require.
While it is true that as a rule, discovery is best
used before or during the trial and before
judgment, there can be no valid objection to
allow recourse thereto in proceedings in aid
of execution of a judgment when the need
therefor arises because of the material issues
of fact more or less numerous or complicated,
and specially in cases before the Court of
Industrial Relations wherein the court is free
to adopt the procedure it deems most
conducive to attain its objective under the
law.
Republic vs. Sandiganbayan
Deposition in case witness is aged or infirm
Gerald John S. Hernandez
Facts: Petitioner represented by the
Philippine Commission for Good
Government (PCGG) filed before the
Sandiganbayan a complaint for “Reversion,
Reconveyance, Restitution, Accounting and
Damages.” complaint alleged that defendant
Ferdinand E. Marcos, former President of the
Philippines, and his wife Imelda, in violation
of the Constitution and in fraud of the
Filipino people, embarked on a systematic
plan accumulating wealth during their term
as President and First Lady of the Republic.
Then there was a several amendments of the
complaint in Sandiganbayan. Petitioner filed
a “Motion for Leave To Take the Deposition
of Rolando C. Gapud Upon Oral
Examination in the Crown Colony of
Hongkong that in view of the nature of his
testimony and the personal risks Mr. Gapud
was facing in assisting the government in the
recovery of ill-gotten wealth, his testimony
would be given only by deposition upon oral
examination. Petitioner prayed that the court
allow the taking of the testimony by
deposition upon oral examination of Mr.
Gapud before the Philippine Consulate in
Hongkong, or in any other Philippine Foreign
Office, and on such dates and time as may be
agreed upon by the parties.
The Sandiganbayan however denied the
motion petitioner’s “Motion for Leave to
Take Deposition of Rolando C. Gapud Upon
Oral Examination in the Crown Colony of
Hongkong.”
Hence, petition in SC.
Issue: W/N respondent Sandiganbayan was
correct in denying the petitioner’s motion for
leave to take deposition of Rolando Gapud?
Ruling: Yes. There are instances, however,
when a deposition is allowed to be taken
before service of answer once jurisdiction has
been acquired over the person or thing. Leave
of court may be granted only in “exceptional”
or “unusual” cases and the decision is entirely
within the discretion of the court. It should be
granted only under “special circumstances”
where conditions point to the necessity of
presenting a strong case for allowance of the
motion. There must be some “necessity” or
“good reason” for taking the testimony
immediately or that it would be prejudicial to
the party seeking the order to be compelled to
await joinder of issue. If the witness is aged
or infirm, or about to leave the court’s
jurisdiction, or is only temporarily in the
jurisdiction, leave may be granted.
In the case at bar, petitioner alleges that the
taking of Mr. Gapud’s deposition in lieu of
his testimony is necessary because the
allegations in the complaint are based mainly
on his disclosures regarding the business
activities of President Marcos and Lucio Tan;
that although Mr. Gapud was granted
immunity by President Aquino from
criminal, civil and administrative suits, he
has been out of the country since 1987 and
has no intention of returning, fearing for his
safety; that this fear arose from his damaging
disclosures on the illicit activities of the
cronies and business associates of former
President Marcos which therefore renders
him unable to testify at the trial.
Petitioner has not cited any fact other than
Mr. Gapud’s cooperation with the Philippine
government in the recovery of ill-gotten
wealth that would support the deponent’s
claim of fear for his safety. No proof, much
less any allegation, has been presented to
show that there exists a
real threat to Mr. Gapud’s life once he returns
to the Philippines and that adequate security
cannot be provided by petitioner for such a the trial; or 2) if the witness has to leave the
vital witness. Philippines with no definite date of returning.

Thus, when Concepcion moved that her

Vda. De Mangeura vs. Risos
Deposition
Gerald John S. Hernandez
Facts: The case, arose from the falsification
of a deed of real estate mortgage allegedly
committed by respondents where they made
it appear that petitioner (Concepcion De
Manguerra), the owner of the mortgaged
property known as the Gorordo property,
affixed her signature to the document.
Concepcion who was a resident of Cebu City,
while on vacation in Manila, was
unexpectedly confined at the Makati Medical
Center due to upper gastro-intestinal
bleeding; and was advised to stay in Manila
for further treatment.
The counsel of Concepcion filed a motion to
take the latter’s deposition due to her weak
physical condition and old age, which limited
her freedom of mobility.
deposition be taken, had she not been too sick
at that time, her motion would have been
denied. Instead of conditionally examining
her outside the trial court, she would have
been compelled to appear before the court for
examination during the trial proper.
Undoubtedly, the procedure set forth in Rule
119 of Criminal Procedure applies to the case
at bar. It is thus required that the conditional
examination be made before the court where
the case is pending. It is also necessary that
the accused be notified, so that he can attend
the examination, subject to his right to waive
the same after reasonable notice. As to the
manner of examination, the Rules mandate
that it be conducted in the same manner as an
examination during trial, that is, through
question and answer.

In RTC it granted the motion and directed

that Concepcions deposition be taken before
the Clerk of Court of Makati City. After
several motions for change of venue of the
deposition taking, Concepcions deposition
was finally taken on at her residence.

In CA, the court reversed the ruling of the

RTC. CA considered the taking of deposition
before the Clerk of Court of Makati City
erroneous and contrary to the clear mandate
of the Rules that the same be made before the
court where the case is pending.

Issue: W/N Rule 23 of the Rules of Court

applies to the deposition of the petitioner?

Ruling: No Petitioners contend that

Concepcions advanced age and health
condition exempt her from the application of
Section 15, Rule 119 of the Rules of Criminal
Procedure, and thus, calls for the application
of Rule 23 of the Rules of Civil Procedure.
The contention does not apply in this case.

The very reason offered by the petitioners to

exempt Concepcion from the coverage of
Rule 119 of Criminal Procedure is at once the
ground which places her squarely within the
coverage of the same provision. Rule 119 or
Criminal Procedure specifically states that a
witness may be conditionally examined: 1) if
the witness is too sick or infirm to appear at