NQa Legal Research

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June 15, 2021
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Judicial Affidavit Rule: Section 5. Subpoena. - If the government employee or official, or the requested
witness, who is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to
execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or other
things under his control available for copying, authentication, and eventual production in court, the
requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum
under Rule 21 of the Rules of Court. The rules governing the issuance of a subpoena to the witness in
this case shall be the same as when taking his deposition except that the taking of a judicial affidavit shall
be understood to be ex parte.

Ng Meng Tam vs. China Banking Corporation, G.R. No. 214054, August 05, 2015:

Section 5 of the JAR contemplates a situation where there is a (a) government employee or official or (b)
requested witness who is not the (1) adverse party’s witness nor (2) a hostile witness. If this person either
(a) unjustifiably declines to execute a judicial affidavit or (b) refuses without just cause to make the
relevant documents available to the other party and its presentation to court, Section 5 allows the
requesting party to avail of issuance of subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court. Thus, adverse party witnesses and hostile witnesses being excluded they are not
covered by Section 5.

The situation created before us begs the question: if the requested witness is the adverse party’s witness or
a hostile witness, what procedure should be followed? The JAR being silent on this point, we turn to the
provisions governing the rules on evidence covering hostile witnesses specially Section 12, Rule 132 of
the Rules of Court which provides:

SEC. 12. Party may not impeach his own witness. – Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling
him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached
by the party presenting him in all respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but
such cross-examination must only be on the subject matter of his examination-in-chief.

Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the party presenting the
adverse party witness must comply with Section 6, Rule 25 of the Rules of Court which provides:

SEC. 6. Effect of failure to serve written interrogatories. – Unless thereafter allowed by the court for
good cause shown and to prevent a failure of justice, a party not served with written interrogatories may
not be compelled by the adverse party to give testimony in open court, or to give a deposition pending
appeal.

In sum, Section 5 of the JAR expressly excludes from its application adverse party and hostile witnesses.
For the presentation of these types of witnesses, the provisions on the Rules of Court under the Revised
Rules of Evidence and all other correlative rules including the modes of deposition and discovery rules
shall apply.
In Afulugencia v. Metropolitan Bank & Trust Co., this Court stated that “in civil cases, the procedure of
calling the adverse party to the witness stand is not allowed, unless written interrogatories are first
served upon the latter.”

Rule 23, Section 1. Depositions pending action, when may be taken. Upon ex parte motion of a party,
the testimony of any person, whether a party or not, may be taken by deposition upon oral examination or
written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as
provided in Rule 21. Depositions shall be taken only in accordance with these Rules. The deposition of a
person confined in prison may be taken only by leave of court on such terms as the court prescribes.

Rule 25: Section 1. Interrogatories to parties; service thereof. — Upon ex parte motion, any party
desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter
written interrogatories to be answered by the party served or, if the party served is a public or private
corporation or a partnership or association, by any officer thereof competent to testify in its behalf.

“It would do well, therefore, to point out the finer attributes of these rules of discovery, the availment of
which, we are convinced, would contribute immensely to the attainment of the judiciary's primordial goal
of expediting the disposition of cases.

The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial
hearing under Rule 20, to narrow and clarify the basic issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The evident purpose is, to repeat, to enable the parties,
consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts
before civil trials and thus prevent that said trials are carried on in the dark.” G.R. No. 108119 January 19,
1994, FORTUNE CORPORATION, vs. HON. COURT OF APPEALS AND INTER MERCHANTS
CORPORATION.

Legal Recommendations:

The Judicial Affidavit Rule specifically excludes adverse or hostile witnesses. It means that their
testimony cannot be adduced through a judicial affidavit.

However, the Rules on Evidence provide that a Hostile Witness may be called to give his testimony in the
witness stand. It is nevertheless required that before he may be called to the witness stand, the adverse
party must be served with written interrogatories. The requesting party must file before the court a copy
of the written interrogatories. With the Court’s order and approval, the written interrogatories will be
served to the adverse or hostile witness. It is the only way to take the testimony of a hostile witness since
the Rule provides that 15 days from receipt, the interrogatories shall then be answered fully in writing and
shall be signed and sworn to by the person making it.

Therefore, if one desires to take the testimony of a hostile/unwilling witness, he must first file before the
court a copy of the written interrogatories. If the court finds and declares that the witness is a
hostile/unwilling witness, it will order the latter to answer the written interrogatories, which must be done
within 15 days from receipt thereof.

A deposition is a witness's sworn out-of-court testimony. It is used to gather information as part of the
discovery process and, in limited circumstances, may be used at trial. Depostion upon Interrogatories is
part of a permitted pre-trial discovery, hence, an ex-parte motion to take deposition upon written
interrogatories may be filed before the pre-trial.