SECOND DIVISION

[G.R. No. 154115. November 29, 2005.]

PHILIP S. YU , petitioner, vs . HON. COURT OF APPEALS, Second

Division, and VIVECA LIM YU , respondents.

Cayetano Sebastian Ata Dado & Cruz and Oscar E. Malinis for petitioner.
Antonio R. Bautista & Partner for private respondent.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; PRACTICE OF EXCLUDING

EVIDENCE ON DOUBTFUL OBJECTIONS TO ITS MATERIALITY SHOULD BE AVOIDED. —
While trial courts have the discretion to admit or exclude evidence, such power is exercised
only when the evidence has been formally offered. 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.
2. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; IN EXCESS OF JURISDICTION,
DEFINED; DECLARING DOCUMENTS ARE IRRELEVANT AND INADMISSIBLE EVEN BEFORE
THEY WERE FORMALLY OFFERED, A CASE OF; CASE AT BAR. — 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 testi candum 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. 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. 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.
3. ID.; EVIDENCE; ADMISSIBILITY; INFORMATION CONTAINED IN INSURANCE
DOCUMENTS NOT CONSIDERED PRIVILEGED COMMUNICATION IN CASE AT BAR. —
Anent the issue of whether the information contained in the [insurance application and
insurance] documents is privileged in nature, the same was clari ed and settled by the
Insurance Commissioner's opinion that [Circular Letter No. 11-2000] on which the trial
court based its ruling was not designed to obstruct lawful court orders. Hence, there is no
more impediment to presenting the insurance application and policy.

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 DECISION

TINGA , J : p

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 2002 1 and 27 June 2002, 2
respectively, which set aside the Order of the Regional Trial Court (RTC) of Pasig City 3
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 in delity and physical abuse. The case was led
before the RTC of Pasig and raffled to Branch 158, presided by Judge Jose R. Hernandez.
During trial, private respondent moved for the issuance of a subpoena duces tecum
and ad testi candum 4 to certain o cers 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
con dential and privileged information pertaining to insurance policies. 7 It added that the
production of the application and insurance contract would violate Article 280 8 of the Civil
Code and Section 5 of the Civil Registry Law, 9 both of which prohibit the unauthorized
identi cation of the parents of an illegitimate child. 1 0 Private respondent sought
reconsideration of the Order, but the motion was denied by the trial court. 1 1
Aggrieved, private respondent led 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. 1 2 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. 1 3
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. 1 4 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". 1 5 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. 1 6 Petitioner led a motion for
reconsideration but to no avail. HIEAcC

In the present petition, petitioner argues that the Court of Appeals blundered in
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 delving into errors of judgment supposedly committed by the trial court as if the petition
led therein was an ordinary appeal and not a special civil action. Further, he claims that
the Court of Appeals failed to show any speci c instance of grave abuse of discretion on
the part of the trial court in issuing the assailed Order. Additionally, he posits that private
respondent had already mooted her petition before the Court of Appeals when she led
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 in delity and his nancial 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. 1 8
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. 1 9 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." 2 0
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. 2 1 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. 2 2 As well elucidated in the case of Prats & Co. v. Phoenix Insurance Co.: 2 3
Moreover, it must be remembered that in the heat of the battle over which
he presides a judge of rst 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 nds 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 rst 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 nal 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 testi candum
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
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 assailed Order was not a mere ruling on the admissibility of evidence; it was, more
importantly, a ruling affecting the proper conduct of trial. 2 4
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. 2 5 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 clari ed 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. 2 6 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. IEHDAT

Section 40, Rule 132 provides:

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 testimony.

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 identi ed 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 led
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.
SO ORDERED.
Puno, Austria-Martinez and Callejo, Sr., JJ., concur.
Chico-Nazario, J., is on leave.

Footnotes
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 1. Rollo, pp. 36-45.
2. Id at 48-50.
3. Id. at 108-111.
4. CA Rollo, p. 47.
5. Rollo, p. 171.
6. Order dated 10 May 2001, id. 108-111.
7. Rollo, p. 109.
8. Art. 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.

9. Act 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.
10. Rollo, p. 109.
11. Id. at 128.
12. Id. at 62-75.
13. Id. at 36.
14. Id. at 43 citing Rules 34- to 36 of the Revised Rules on Evidence.
15. CA Rollo, p. 58.
16. Rollo, p. 45.
17. Id. at 30.
18. Id. at 262-264.
19. Sec. 1, Rule 65, Revised Rules on Civil Procedure.

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

22. People v. Yatco, et al., 97 Phil. 940, 946 (1955) citing Prats & Co. v. Phoenix Insurance
Co., 52 Phil. 807 (1929).
23. 52 Phil. 807, 816-817 (1929).

24. Rollo, p. 316.

25. Broom v. Douglas, 175 Ala. 268, 57 S 860; Tengco v. Jocson, 43 Phil 716 (1922).
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 26. CA Rollo, p. 58.

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