3. Jowel Sales v.

Sabin
Facts:

Cyril Sabino filed with the RTC an amended complaint for damages against, among others, Jowel
Sales, driver of the vehicle involved in the accident which ultimately caused the death of Sabino’s
son, Elbert. Before any responsive pleading could be filed, Sabino, notified the defendants that he
will take the deposition of one Buaneres Corral before the Clerk of Court, RTC- Pasig City.

The deposition on oral examination of Corral was taken before the Clerk of Court of Pasig, in the
presence and with the active participation of Sales’ counsel, Atty. Villacorta, who even lengthily
cross-examined the “deponent”. In the course of trial, Sabino had the deposition of Corral marked as
her Exhibits “DD” and “EE” with submarkings. Upon conclusion of her evidentiary presentation,
Sabino made a Formal Offer of Exhibits, among which are Exhibits “DD” and “EE”. Corral then left the
country.

Sales opposed the admission of Exhs. “DD” and “EE” and asked that they be expunged from the
records on the ground that the jurisdictional requirements for their admission under Section 4, Rule
23 of the ROC were not complied with.

The RTC admitted, among other evidence, Sabino’s Exhibits “DD”& “EE”. Sales’ MR was denied, so he
went on certiorari to the CA imputing grave abuse of discretion on the part of the RTC in admitting in
evidence the deposition (Exhibits “DD” and “EE”).

CA affirmed the RTC and effectively denied due course to and dismissed Sales’ recourse, explaining
that Sales’ active participation, through counsel, during the taking of subject deposition and
adopting it as his own exhibits, has thereby estopped him from assailing the admissibility thereof as
part of Sabino’s evidence. Sales filed this petition.

Issues:

(1) Whether or not the requirements of Sec. 4, Rule 24 (now Sec. 3) ROC were satisfied by Sabino
when it presented a certification attesting to the fact that deponent has left the country but silent as
to WoN at the time his deposition was offered in evidence deponent is in the Philippines

(2) Whether or not Sales in cross-examining the deponent during the taking of his deposition waived
any and all objections in connection therewith

Held: (1)

YES. Sales contends that none of the conditions in Sec. 4, Rule 23 ROC exists to justify the admission
in evidence of Sabino’s Exhibits “DD” and “EE”. Hence, it was error for the appellate court to have
upheld their admission. Sales argues that said certification merely proves the fact of Corral having
left the country on the date mentioned. It does not establish that he has not returned since then and
is unavailable to be present in court to personally testify.

While depositions may be used as evidence in court proceedings, they are generally not meant to be
a substitute for the actual testimony in open court of a party or witness. Stated a bit differently, a
deposition is not to be used when the deponent is at hand. Indeed, any deposition offered during a
trial to prove the facts therein set out, in lieu of the actual oral testimony of the deponent in open
court, may be opposed and excluded on the ground of hearsay. However, depositions may be used
without the deponent being called to the witness stand by the proponent, provided the existence of
certain conditions is first satisfactorily established. 5 exceptions for the admissibility of a deposition
are listed in Section 4, Rule 23. Among these is when the witness is out of the Philippines.

RTC determined that deponent Bueneres Corral was abroad when the offer of his deposition was
made. This factual finding of absence or unavailability of witness to testify deserves respect, having
been adequately substantiated. The certification by the Bureau of Immigration provides that
evidentiary support. It is customary for courts to accept statements of parties as to the unavailability
of a witness as a predicate to the use of depositions. Had deponent Buaneres Corral indeed returned
to the Philippines subsequent to his departure via Flight No. PR 658, Sales could have presented
evidence to show such.

(2)

NO. As a rule, the inadmissibility of testimony taken by deposition is anchored on the ground that
such testimony is hearsay, i.e., the party against whom it is offered has no opportunity to cross-
examine the deponent at the time his testimony is offered. But it matters not that opportunity for
cross-examination was afforded during the taking of the deposition; for normally, the opportunity
for cross-examination must be accorded a party at the time the testimonial evidence is actually
presented against him during the trial or hearing.

In fine, the act of cross-examining the deponent during the taking of the deposition cannot, without
more, be considered a waiver of the right to object to its admissibility as evidence in the trial proper.
In participating, therefore, in the taking of the deposition, but objecting to its admissibility in court
as evidence, petitioner did not assume inconsistent positions.

He is not, thus, estopped from challenging the admissibility of the deposition just because he
participated in the taking thereof. Certiorari will not lie against an order admitting or rejecting a
deposition in evidence, the remedy being an appeal from the final judgment. For this reason, the CA
could have dismissed Sales’ invocation of its certiorari jurisdiction.

4. Dulay vs Dulay
Facts:

Rodrigo filed a complaint for recovery of his bank deposit alleging that he opened a trust account
with Bank of Boston with a deposit of $230,000, naming Pfeger as trustee. Five months later, Pfeger
went back to the Philippines where he went on a spending binge. Rodrigo found out and verified the
status of his account with Bank of Boston, only to find that Pfeger already emptied the account.

Pfeger denied the allegations claiming that the money deposited was his own money.

Rodrigo filed a petitioner for the issuance of letters rogatory in order to get the depositions of
several witnesses residing abroad. While Pfeger moved to be allowed to file cross-examination
questions. The trial court granted.
The depositions could not be taken before the Clerk of Court of Massachusetts, but were taken
instead before a notary public in New York. Rodrigo submitted to the trial court his answers to the
interrogatories and cross-interrogatories of petitioners given before a notary public in the United
States.

Petitioners filed an Omnibus Motion, praying that the written interrogatories be declared
inadmissible and reiterating their prayer for the dismissal of the complaint. Denied.

Petitioners filed before the CA an action for certiorari, which was dismissed. Hence, motion for
reconsideration.

Issue:

W/N the documents submitted by respondent were in compliance with the letters rogatory
ordered by the court and hence admissible.
Held:

Yes
Ruling:

While the letters rogatory issued by the trial court specifically directed the Clerk of Court of
Boston to take the depositions needed in the case, it became impossible to follow the directive since
the Clerk of Court of Boston merely brushed it aside and refused to cooperate.

Respondent cannot be faulted for the resultant delay brought about by this circumstance.
Neither can the trial court be faulted for allowing the admission of the depositions taken not in strict
adherence to its original directive, nor for directing the petitioner to have the depositions
authenticated.

The Court held that it would be illogical and unreasonable to expect respondent to comply
with the letters rogatory without the cooperation of the very institution or personality named in the
letters rogatory and requested to examine the witnesses.

While letters rogatory are requests to foreign tribunals, commissions are directives to
officials of the issuing jurisdiction. Commissions are taken in accordance with the rules laid down by
the court issuing the commission, while in letters rogatory, the methods of procedure are under the
control of the foreign tribunal.

In the present case, the authentication made by the consul was a ratification of the authority
of the notary public who took the questioned depositions. The deposition was, in effect, obtained
through a commission, and no longer through letters rogatory. It must be noted that this move was
even sanctioned by the trial court by virtue of its Order dated 28 September 2000. the depositions in
issue, there is no more impediment to their admissibility.