G.R. No. 214054, August 05, 2015 - NG MENG TAM, Petitioner, v.

CHINA
BANKING CORPORATION, Respondent.

THIRD DIVISION

G.R. No. 214054, August 05, 2015

NG MENG TAM, Petitioner, v. CHINA BANKING CORPORATION,

Respondent.

DECISION

VILLARAMA, JR., J.:

Before this Court is a direct recourse from the Regional Trial Court (RTC) via
petition1 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 Ever a loan amounting to P5,532,331.63.
The loan was allegedly backed by two surety agreements executed by Vicente, George
and petitioner in its favor, each for P5,000,000.00, and dated December 9, 1993 and
May 3, 1995, respectively. When Ever defaulted in its payment, China Bank sent
demand letters collectively addressed to George, Vicente and petitioner. The demands
were unanswered. China Bank filed the complaint for collection docketed as Civil
Case No. 08-1028, which was raffled off to RTC Branch 62, Makati City.

In his Answer, petitioner alleged that the surety agreements were null and void since
these were executed before the loan was granted in 2004. Petitioner posited that the
surety agreements were contracts of adhesion to be construed against the entity which
drafted the same. Petitioner also alleged that he did not receive any demand letter.

In the course of the proceedings, petitioner moved that his affirmative defenses be
heard by the RTC on the ground that the suit is barred by the statute of limitations and
laches.5 The motion was denied by the court.6 On appeal, the Court of Appeals (CA)
in its December 22, 2010 Decision7 ruled that a preliminary hearing was proper
pursuant to Section 6,8 Rule 16 of the Rules of Court due to the grounds cited by
petitioner. There being no appeal, the decision became final and executory on August
28, 2011.9redarclaw

On March 15, 2011, petitioner served interrogatories to parties10 pursuant to Sections

111 and 6,12 Rule 25 of the Rules of Court to China Bank and required Mr. George C.
Yap, Account Officer of the Account Management Group, to answer.

On June 22, 2011, George Yap executed his answers to interrogatories to parties.13 redarclaw

In the meantime, having failed mediation and judicial dispute resolution, Civil Case
No. 08-1028 was re-raffled off to RTC Branch 139, Makati City.

Petitioner again moved for the hearing of his affirmative defenses. Because he found
Yaps answers to the interrogatories to parties evasive and not responsive, petitioner
applied for the issuance of a subpoena duces tecum and ad testificandum against
George Yap pursuant to Section 6,14 Rule 25 of the Revised Rules of Court.

On April 29, 2014, when the case was called for the presentation of George Yap as a
witness, China Bank objected citing Section 5 of the JAR. China Bank said that Yap
cannot be compelled to testify in court because petitioner did not obtain and present
George Yaps judicial affidavit. The RTC required the parties to submit their motions
on the issue of whether the preparation of a judicial affidavit by George Yap as an
adverse or hostile witness is an exception to the judicial affidavit rule.15
redarclaw

Petitioner contended that Section 5 does not apply to Yap because it specifically
excludes adverse party witnesses and hostile witnesses from its application. Petitioner
insists that Yap needed to be called to the stand so that he may be qualified as a hostile
witness pursuant to the Rules of Court.

China Bank, on the other hand, stated that petitioners characterization of Yaps
answers to the interrogatories to parties as ambiguous and evasive is a declaration of
what type of witness Yap is. It theorizes that the interrogatories to parties answered
by Yap serve as the judicial affidavit and there is no need for Yap to be qualified as a
hostile witness.

In its May 28, 2014 Order, the RTC denied for lack of merit petitioners motion to
examine Yap without executing a judicial affidavit. The RTC in interpreting Section 5
of the JAR stated:LawlibraryofCRAlaw

x x x The aforementioned provision, which allows the requesting party to avail

himself of the provisions of Rule 21 of the Rules of Court finds applicability to: (a) a
government employee or official, or the requested witness, who is neither the witness
of the adverse party nor a hostile witness and (b) who 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.

In the case at bar, witness George Yap is being utilized as an adverse witness for the
[petitioner]. Moreover, there was no showing that he unjustifiably declines to execute
a judicial affidavit. In fact, it was [China Bank]s counsel who insisted that said
witness judicial affidavit be taken. Thus, Section 5 of the [JAR] which [petitioner]
invoked to exempt him from the Rule finds no application. Unless there is contrary
ruling on the matter by the Supreme Court, this court has no choice but to implement
the rule as written.
On this note, this Court also finds no merit on the contention of [China Bank] that the
answer to the written interrogatories by witness George Yap already constitutes his
judicial affidavit. Inasmuch as the Court strictly implemented the [JAR] on the part of
[petitioner], so shall it rule in the same manner on the part of [China Bank]. As
correctly pointed out by [petitioner], the said answer to interrogatories does not
comply with Section 3 of the [JAR] which provides for the contents of the judicial
affidavit.16

In essence, the RTC 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:LawlibraryofCRAlaw

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

Petitioner moved for reconsideration but it was denied by the RTC in its August 27,
2014 Order.18 The RTC reiterated its position and stated: LawlibraryofCRAlaw

It must be pointed out that the [petitioner] [was] the [one] who invoked the provisions
of Section 5 of the [JAR] to compel the attendance of witness George Yap and as
such, it is their duty to show the applicability of the said provisions to the case at bar.
As stated in the challenged Order, Section 5 of the [JAR] finds applicability to: (a) a
government employee or official, or the requested witness, who is neither the witness
of the adverse party nor a hostile witness and (b) who 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. In the case at bar, [petitioner] [does] not deny that
witness George Yap is to be utilized as [his] adverse witness. On this score alone, it is
clear that the provisions invoked do not apply.19

The RTC stressed that Section 5 of the JAR required the requested witness refusal to
be unjustifiable. It stated:
LawlibraryofCRAlaw

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

Hence, this petition.

Petitioner contends that the RTC committed a grave error when it interpreted Section
5 to include adverse party and hostile witnesses. Based 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 RTCs 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: LawlibraryofCRAlaw

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT

INTERPRETED SEC. 5 OF THE [JAR] CONTRARY TO ITS WORDINGS.

II

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT

INTERPRETED SEC. 5 [OF THE JAR] CONTRARY TO ITS PRACTICAL
INTENTION AND COMMON SENSE.

III

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT

EFFECTIVELY DISREGARDED THE RELEVANT RULES ON MODE OF
DISCOVERY WHICH GOVERN THE PRESENTATION OF ADVERSE
WITNESSES.

IV

ON A POLICY LEVEL AND IN THE EVENT RTC BR. 139-MAKATIS

INTERPRETATION AND APPLICATION OF SEC. 5 OF THE [JAR] IS CORRECT
(I.E., THAT OPPOSING PARTY WHO INTENDS TO PRESENT ADVERSE OR
HOSTILE WITNESS MUST GET AND SUBMIT THAT WITNESS JUDICIAL
AFFIDAVIT NO MATTER WHAT) IT IS HUMBLY SUBMITTED, WITH THE
UTMOST INDULGENCE OF THE HONORABLE SUPREME COURT, THAT THE
SAME RULE BE IMPROVED OR AMENDED BY PROVIDING SANCTIONS IN
THE EVENT THE ADVERSE OR HOSTILE WITNESS REFUSES TO ANSWER
OR EXECUTE JUDICIAL AFFIDAVIT AS REQUIRED BY THE OPPOSING
PARTY.21

We grant the petition.

THE JUDICIAL AFFIDAVIT RULE

APPLIES TO PENDING CASES

On September 4, 2012, the JAR was promulgated to address case congestion and
delays in courts. To this end, it seeks to reduce the time needed to take witnesses
testimonies.22 The JAR took effect on January 1, 2013 and would also apply to
pending cases pursuant to Section 12 to wit: LawlibraryofCRAlaw

Sec. 12. Effectivity. This rule shall take effect on January 1, 2013 following its
publication in two newspapers of general circulation not later than September 15,
2012. It shall also apply to existing cases. (Emphasis supplied)
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 RTCs 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

The JAR primarily affects the manner by which evidence is presented in court.
Section 2(a) of the JAR provides that judicial affidavits are mandatorily filed by
parties to a case except in small claims cases. These judicial affidavits take the place
of direct testimony in court. It provides: LawlibraryofCRAlaw

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies.

(a) The parties shall file with the court and serve on the adverse party, personally or
by licensed courier service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and incidents, the
following:LawlibraryofCRAlaw

(1) The judicial affidavits of their witnesses, which shall take the place of such
witnesses direct testimonies; and

(2) The parties documentary or object evidence, if any, which shall be attached to the
judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the
respondent or the defendant.

xxxx

Section 324 of the JAR enumerates the content of a judicial affidavit.

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: LawlibraryofCRAlaw

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 shal1 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 partys
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 alterius: the express mention of one person, thing, or consequence implies
the exclusion of all others.26 redarclaw

Here, Yap is a requested witness who is the adverse partys witness. Regardless of
whether he unjustifiably declines to execute a judicial affidavit or refuses without just
cause to present the documents, Section 5 cannot be made to apply to him for the
reason that he is included in a group of individuals expressly exempt from the
provisions application.

The situation created before us begs the question: if the requested witness is the
adverse partys 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: LawlibraryofCRAlaw

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: LawlibraryofCRAlaw

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 Afulugencia v. Metropolitan Bank & Trust Co.,27 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.28 There petitioners
Spouses Afulugencia sought the issuance of a subpoena duces tecum and ad
testificandum to compel the officers of the bank to testify and bring documents
pertaining to the extrajudicial foreclosure and sale of a certain parcel of land.
Metrobank moved to quash the issuance of the subpoenas on the ground of non-
compliance with Section 6, Rule 25 of the Rules of Court. In quashing the issuance of
the subpoena, the Court reminded litigants that the depositions are a mechanism by
which fishing expeditions and delays may be avoided. Further written interrogatories
aid the court in limiting harassment and to focus on what is essential to a case. The
Court stated:LawlibraryofCRAlaw

One of the purposes of the above rule is to prevent fishing expeditions and needless
delays; it is there to maintain order and facilitate the conduct of trial. It will be
presumed that a party who does not serve written interrogatories on the adverse party
beforehand will most likely be unable to elicit facts useful to its case if it later opts to
call the adverse party to the witness stand as its witness. Instead, the process could be
treated as a fishing expedition or an attempt at delaying the proceedings; it produces
no significant result that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse partys testimony,
compelling the adverse party to take the witness stand may result in the calling party
damaging its own case. Otherwise stated, if a party cannot elicit facts or information
useful to its case through the facility of written interrogatories or other mode of
discovery, then the calling of the adverse party to the witness stand could only serve
to weaken its own case as a result of the calling partys being bound by the adverse
partys testimony, which may only be worthless and instead detrimental to the calling
partys cause.

Another reason for the rule is that by requiring prior written interrogatories, the court
may limit the inquiry to what is relevant, and thus prevent the calling party from
straying or harassing the adverse party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or
harassment; it likewise prevents the calling party from conducting a fishing
expedition or bungling its own case. Using its own judgment and discretion, the court
can hold its own in resolving a dispute, and need not bear witness to the parties
perpetrating unfair court practices such as fishing for evidence, badgering, or
altogether ruining their own cases. Ultimately, such unnecessary processes can only
constitute a waste of the courts precious time, if not pointless entertainment.29
(Citation omitted)

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 RTC 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 JARs scope, the rules
in presentation of adverse party witnesses as provided for under the Rules of Court
shall apply. In keeping with this Courts decision in Afulugencia, there is no reason
for the RTC 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. cralawl awlibrary

Velasco, Jr., (Chairperson), Peralta, Perez,* and Jardeleza, JJ., concur.

Endnotes:

*
Designated Acting Member in lieu of Associate Justice Bienvenido L. Reyes, per
Special Order No. 2084 dated June 29, 2015.
1
Under Rule 45 of the Revised Rules of Court. Rollo, pp. 3-21.
2
JUDICIAL AFFIDAVIT RULE, Section 5 provides: LawlibraryofCRAlaw

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 shal1 be understood to be ex parte.
3
Rollo, pp. 22-A to 24. Signed by Presiding Judge Benjamin T. Pozon.
4
Id. at 25-27.
5
Id. at 65.
6
RTC Order dated January 4, 2010, id. at 66.
7
Rollo, pp. 63-75. Penned by Associate Justice Mariflor P. Punzalan Castillo with
Associate Justices Josefina Guevara-Salonga and Franchito N. Diamante concurring.
8
Rules of Court, Rule 16, Section 6 provides: LawlibraryofCRAlaw

SEC. 6. Pleading grounds as affirmative 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.
9
Rollo, p. 76.
10
Id. at 77-79.
11
RULES OF COURT, Rule 25, Section 1 provides: LawlibraryofCRAlaw

SECTION 1. Interrogatories to parties; service thereof. Under the same conditions

specified in section 1 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.
12
Id., Section 6 provides: LawlibraryofCRAlaw

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.
13
Rollo, pp. 80-85. Sent via registered mail on June 23, 2011.
14
Supra note 12.
15
Rollo, pp. 86-87.
16
Id. at 23.
17
Id.
18
Supra note 4.
19
Id. at 26.
20
Id.
21
Id. at 9-10.
22
JUDICIAL AFFIDAVIT RULE, 4th Whereas Clause provides: LawlibraryofCRAlaw

xxxx
Whereas, in order to reduce the time needed for completing the testimonies of
witnesses in cases under litigation, on February 21, 2012 the Supreme Court approved
for piloting by trial courts in Quezon City the compulsory use of judicial affidavits in
place of the direct testimonies of witnesses;

xxxx
23
Resolution dated January 8, 2013, rollo (A.M. No. 12-8-8-SC), pp. 37-39.
24
JUDICIAL AFFIDAVIT RULE, Section 3 provides: LawlibraryofCRAlaw

Sec. 3. Contents of Judicial Affidavit. A judicial affidavit shall be prepared in the

language known to the witness and, if not in English or Filipino, accompanied by a
translation in English or Filipino, and shall contain the following: LawlibraryofCRAlaw

(a) The name, age, residence or business address, and occupation of the witness;

(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: LawlibraryofCRAlaw

(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.
25
Id., Section 10 provides: LawlibraryofCRAlaw

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 P1,000.00 nor more than P5,000.00, at the discretion of the court.
26
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.
27
G.R. No. 185145, February 5, 2014, 715 SCRA 399.
28
Id. at 412.
29
Id. at 413-414.