NG Meng Tam Vs CBC
NG Meng Tam Vs CBC
NG Meng Tam Vs CBC
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THIRD DIVISION
NG MENG TAM,
Petitioner,
- versus -
Promulgated:
August 5, 2015
x--------------------------------~-~~
DECISION
VILLARAMA, JR., J.:
Before this Court is a direct recourse from the Regional Trial Court
(RTC) via petition 1 for review on the question of whether Section 52 of the
Judicial Affidavit Rule (JAR) applies to hostile or adverse witnesses. The
petition seeks to annul and set aside the May 28, 20143 and August 27, 20144
Orders of the RTC, Branch 139, Makati City in Civil Case No. 08-1028.
This case stemmed from a collection suit filed by China Banking
Corporation (China Bank) against Ever Electrical Manufacturing Company
Inc. (Ever), the heirs of Go Tong, Vicente Go, George Go and petitioner Ng
Meng Tam sometime in December 2008. China Bank alleged that it granted
Designated Acting Member in lieu of Associate Justice Bienvenido L. Reyes, per Special Order No.
2084 dated June 29, 2015.
Under Rule 45 of the Revised Rules of Court. Rollo, pp. 3-21.
JUDICIAL AFFIDAVIT RULE, Section 5 provides:
Sec. 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 shat I be
understood to be ex parte.
Rollo, pp. 22-A to 24. Signed by Presiding Judge Benjamin T. Pozon.
Id. at 25-27.
ll"
Decision
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to parties.
9
10
11
12
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Id. at 65.
RTC Order dated January 4, 2010, id. at 66.
Rollo, pp. 63-75. Penned by Associate Justice Mariflor P. Punzalan Castillo with Associate Justices
Josefina Guevara-Salonga and Franchito N. Diamante concurring.
RULES OF COURT, Rule 16, Section 6 provides:
SEC. 6. Pleading grounds as afjirmative defenses. - If no motion to dismiss has been filed, any of
the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the
answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to
dismiss had been filed.
Rollo, p. 76.
Id. at 77-79.
RULES OF COURT, Rule 25, Section I provides:
SECTION I. Interrogatories to parties; service thereof - Under the same conditions specified in
section I of Rule 23, 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.
Id., Section 6 provides:
SEC. 6. Effect offailure 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.
Rollo, pp. 80-85. Sent via registered mail on June 23, 2011.
Decision
Decision
In essence, the R TC ruled that Section 5 did not apply to Yap since he
was an adverse witness and he did not unjustifiably decline to execute a
judicial affidavit. It stated:
In view of the foregoing, the motion of the [petitioner] that witness
George Yap be examined without executing a Judicial Affidavit is hereby
DENIED FOR LACK OF MERIT. 17
The RTC stressed that Section 5 of the JAR required the requested
witness' refusal to be unjustifiable. It stated:
x x x the [JAR] requires that the refusal must be unjustifiable and
without just cause. It must be pointed out that [China Bank]'s previous
motions to quash the subpoena was grounded on the claim that having
already submitted to this court his sworn written interrogatories, his being
compelled to testify would be unreasonable, oppressive and pure
harassment. Thus, witness' refusal to testify cannot be considered
unjustifiable since he raised valid grounds. 20
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18
19
20
Id. at 23.
Id.
Supra note 4.
Id. at 26.
Id.
Decision
on the wording of Section 5, adverse party and hostile witnesses are clearly
excluded.
China Bank asserts that Yap neither refused unjustifiably nor without
just cause refused to a judicial affidavit. It cited the RTC's August 27, 2014
Order where the court said that Yap had answered the interrogatories and to
compel him to testify in open court would be "unreasonable, oppressive and
pure harassment." Moreover, it stated that based on the language used by
Section 2 of the JAR the filing of judicial affidavits is mandatory.
The petition is anchored on the following arguments:
I
RULE
Id.at9-10.
ti
Decision
The Court En Banc gave public prosecutors in first and second level courts
one year of modified compliance. 23 The JAR thus took full effect on
January 1, 2014.
Here, parties were presenting their evidence for the RTC's
consideration when the JAR took effect. Therefore, pursuant to Section 12
the JAR applies to the present collection suit.
SECTION 5 OF THE JAR DOES NOT
APPLY
TO
ADVERSE
PARTY
WITNESSES
23
24
Decision
Under Section 10, 25 parties are to be penalized if they do not conform to the
provisions of the JAR. Parties are however allowed to resort to the
application of a subpoena pursuant to Rule 21 of the Rules of Court in
Section 5 of the JAR in certain situations. Section 5 provides:
Sec. 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 shal 1 be understood to be ex parte.
While we agree with the RTC that Section 5 has no application to Yap
as he was presented as a hostile witness we cannot agree that there is need
for a finding that witness unjustifiably refused to execute a judicial affidavit.
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. Expressio unius est exclusion
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(b) The name and address of the lawyer who conducts or supervises the examination of the
witness and the place where the examination is being held;
(c) A statement that the witness is answering the questions asked of him, fully conscious that
he does so under oath, and that he may face criminal liability for false testimony or perjury;
(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:
(1) Show the circumstances under which the witness acquired the facts upon which
he testifies;
(2) Elicit from him those facts which are relevant to the issues that the case presents; and
(3) Identify the attached documentary and object evidence and establish their
authenticity in accordance with the Rules of Court;
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers the oath or an officer who
is authorized by law to administer the same.
Id., Section 10 provides:
Sec. 10. Effect of non-compliance with the Judicial Affidavit Rule. - (a) A party who fails to
submit the required judicial affidavits and exhibits on time shall be deemed to have waived their
submission. The court may, however, allow only once the late submission of the same provided, the
delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party
pays a fine of not less than Pl,000.00 nor more than P5,000.00, at the discretion of the court.
(b) The court shall not consider the affidavit of any witness who fails to appear at the
scheduled hearing of the case as required. Counsel who fails to appear without valid cause despite
notice shall be deemed to have waived his client's right to confront by cross-examination the witnesses
there present.
(c) The court shall not admit as evidence judicial affidavits that do not conform to the content
requirements of Section 3 and the attestation requirement of Section 4 above. The court may, however,
allow only once the subsequent submission of the compliant replacement affidavits before the hearing
or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and
provided further, that public or private counsel responsible for their preparation and submission pays a
fine of not less than Pl,000.00 nor more than P5,000.00, at the discretion of the court.
Decision
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 offailure 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.
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Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC.) v.
Power Sector Assets and Liabilities Management Corporation (PSALM}, G.R. No. 192088, October 9,
2012, 682 SCRA 602, 649.
G.R. No. 185145, February 5, 2014, 715 SCRA 399.
Id. at 412.
tf
Decision
In this case, parties, with the approval of the Court, furnished and
answered interrogatories to parties pursuant to Rule 25 of the Rules of Court.
They therefore complied with Section 6 of Rule 25 of the Rules of Court.
Before the present controversy arose, the R TC had already issued subpoenas
for Yap to testify and produce documents. He was called to the witness
stand when China Bank interposed its objection for non-compliance with
Section 5 of the JAR. Having established that Yap, as an adverse party
witness, is not within Section 5 of the JAR's scope, the rules in presentation
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Id. at 413-414.
&{"
..
Decision
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of adverse party witnesses as provided for under the Rules of Court shall
apply. In keeping with this Court's decision in Afulugencia, there is no
reason for the R TC not to proceed with the presentation of Yap as a witness.
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.
WHEREFORE, the petition is GRANTED. The May 28, 2014 and
August 27, 2014 Orders of the Regional Trial Court, Branch 139, Makati
City are hereby ANNULLED and SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
......
~VILLA~, JR.
WE CONCUR:
REZ
Associate Justice
Decision
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ATTESTATION
I attest 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.
J. VELASCO, JR.
Asfociate Justice
Chairp/rson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987 Constitution and the
Division Chairperson's Attestation, I certify 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.
Divisi
Third Division
SEP O 1 2015
A.