FIRST DIVISION
|
ALFREDO
P. ROSETE, OSCAR P. MAPALO and CHITO P. ROSETE, Petitioners,
- versus - JULIANO LIM and LILIA LIM,
Respondents. |
|
G.R. No. 136051 Present: PANGANIBAN,
C.J. Chairperson, YNARES-SANTIAGO,* AUSTRIA-MARTINEZ,** CALLEJO, SR. and CHICO-NAZARIO, JJ. Promulgated: |
x- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
CHICO-NAZARIO, J.:
Before Us
is a petition for review on certiorari
which seeks to set aside the Decision[1] of the Court of Appeals in CA-G.R.
SP No. 45400 dated
Relevant
to the petition are the following antecedents:
On
5 December 1995, respondents Juliano Lim and Lilia Lim filed before Branch 77 of the
On
In an Order dated
On
On
On
Petitioner
On
On
Respondents filed their Comment on
the Objection to Deposition Taking[33] to which petitioners filed their Reply.[34]
In an Order dated
On
In an Order dated
On 22 September1997, respondents
filed an Omnibus Motion: (1) To Strike Out Answer of Defendants Mapalo and
Chito Rosete; (2) to Declare Defendants Mapalo and Chito Rosete In Default; and
(3) For Reception of Plaintiffs’ Evidence Ex-parte,[40]
which petitioners opposed.[41]
On 29 September 1997, petitioners filed
with the Court of Appeals a Petition for Certiorari
and Prohibition (CA-G.R. SP No. 45400) assailing the Orders of the lower court
dated 22 July 1997 and 27 August 1997.[42]
In an Order dated 29 October 1997,
the lower court: (1) ordered the striking out from the record of the Answer ex abudanti cautela filed by petitioners
Mapalo and Chito Rosete for their continued unjustified refusal to be sworn
pursuant to Rule 29 of the 1997 Rules of Civil Procedure; (2) declared
defendants Mapalo and Chito Rosete in default; and I allowed plaintiffs to
present their evidence ex-parte as regards the latter.[43] On
On
In an Order dated
On 10 February 1998, petitioners
filed a Petition[50] for Certiorari and Prohibition before the
Court of Appeals (CA-G.R. SP No. 46774) questioning the lower court’s Orders
dated 29 October 1997 and 11 December 1997.[51]
On
Petitioners assail the ruling of the
Court of Appeals via a Petition for Review on Certiorari. They anchor their petition on the
following grounds:
I.
THE TRIAL COURT
ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS
OF JURISDICTION IN DECLARING IN ITS ORDER DATED AUGUST 27, 1997 THAT THE
CONSTITUTIONAL RIGHT AGAINST SELF INCRIMINATION OF OSCAR MAPALO AND CHITO
ROSETE WOULD NOT BE VIOLATED BY THE TAKING OF THEIR DEPOSITION IN THE CIVIL
CASE FILED IN THE LOWER COURT ALTHOUGH THEY ARE ALSO RESPONDENTS OR DEFENDANTS
IN THE AFOREMENTIONED CRIMINAL CASES FILED BY HEREIN PRIVATE RESPONDENT JULIANO
LIM INVOLVING THE SAME OR IDENTICAL SET OF FACTS; AND
II.
THE TRIAL COURT
ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS
OF JURISDICTION IN DECLARING IN ITS ORDER DATED JULY 22, 1997 THAT (A) THE
NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION NEED NOT BE WITH LEAVE OF COURT
BECAUSE AN ANSWER EX ABUDANTE CAUTELA HAS BEEN FILED; AND (B) JOINDER OF ISSUES
IS NOT REQUIRED IN ORDER THAT THE SECTION 1, RULE 23[56]
OF THE RULES OF CIVIL PROCEDURE MAY BE AVAILED OF.
Petitioners argue that the Court of
Appeals gravely erred when it found that the trial court did not abuse its
discretion when it refused to recognize petitioners Oscar Mapalo and Chito
Rosete’s constitutional right against self-incrimination when, through its Orders
dated 22 July 1997 and 27 August 1997, it allowed and scheduled the taking of
their depositions by way of oral examination.
They explain they refuse to give their depositions due to the pendency
of two criminal cases against them, namely, Batasan Pambansa Blg. 22 and Estafa, because their answers would
expose them to criminal action or liability since they would be furnishing
evidence against themselves in said criminal cases. They allege there can be no doubt that the
questions to be asked during the taking of the deposition would revolve around
the allegations in the complaint in the civil case which are identical to the
allegations in the complaint-affidavits in the two criminal cases, thus, there
is a tendency to incriminate both Oscar Mapalo and Chito Rosete. Moreover, they explain that while an ordinary
witness may be compelled to take the witness stand and claim the privilege
against self-incrimination as each question requiring an incriminating answer
is shot at him, an accused may altogether refuse to answer any and all questions
because the right against self-incrimination includes the right to refuse to
testify.
In short, petitioners Mapalo and
Chito Rosete refuse to have their depositions taken in the civil case because
they allegedly would be incriminating themselves in the criminal cases because
the testimony that would be elicited from them may be used in the criminal
cases. As defendants in the civil case,
it is their claim that to allow their depositions to be taken would violate
their constitutional right against self-incrimination because said right
includes the right to refuse to take the witness stand.
In order to resolve this issue, we
must determine the extent of a person’s right against self-incrimination. A person’s right against self-incrimination
is enshrined in Section 17, Article III of the 1987 Constitution which reads:
“No person shall be compelled to be a witness against himself.”
The right against self-incrimination is
accorded to every person who gives evidence, whether voluntary or under
compulsion of subpoena, in any civil, criminal or administrative
proceeding. The right is not to be
compelled to be a witness against himself.
It secures to a witness, whether he be a party or not, the right to
refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for
some crime. However, the right can be
claimed only when the specific question, incriminatory in character, is
actually put to the witness. It cannot
be claimed at any other time. It does
not give a witness the right to disregard a subpoena, decline to appear before
the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey
it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is
addressed to which may incriminate himself for some offense that he may refuse
to answer on the strength of the constitutional guaranty.[57]
As to an accused in a criminal case, it
is settled that he can refuse outright to take the stand as a witness. In People
v. Ayson,[58] this
Court clarified the rights of an accused in the matter of giving testimony or
refusing to do so. We said:
An accused “occupies a different tier of protection
from an ordinary witness.” Under the
Rules of Court, in all criminal prosecutions the defendant is entitled among
others—
1) to be exempt from being a
witness against himself, and
2) to testify as witness in his own behalf; but if he
offers himself as a witness he may be cross-examined as any other witness;
however, his neglect or refusal to be a witness shall not in any manner
prejudice or be used against him.
The
right of the defendant in a criminal case “to be exempt from being a witness
against himself” signifies that he cannot be compelled to testify or produce
evidence in the criminal case in which he is the accused, or one of the
accused. He cannot be compelled to do so
even by subpoena or other process or
order of the Court. He cannot be required
to be a witness either for the prosecution, or for a co-accused, or even for
himself. In other words – unlike an
ordinary witness (or a party in a civil action) who may be compelled to
testify by subpoena, having only the
right to refuse to answer a particular incriminatory question at the time it is
put to him – the defendant in a criminal action can refuse to testify
altogether. He can refuse to take the
witness stand, be sworn, answer any question. X x x (Underscoring supplied.)
It is clear, therefore, that only an accused
in a criminal case can refuse to take the witness stand. The right to refuse to take the stand does
not generally apply to parties in administrative cases or proceedings. The
parties thereto can only refuse to answer if incriminating questions are
propounded. This Court applied the exception
– a party who is not an accused in a criminal case is allowed not to take the
witness stand – in administrative cases/proceedings that partook of the nature
of a criminal proceeding or analogous to a criminal proceeding.[59] It is likewise the opinion of the Court that
said exception applies to parties in civil actions which are criminal in
nature. As long as the suit is criminal
in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved
but the nature of the proceedings that controls.[60]
In the Ayson case, it is evident that the Court treats a party in a civil
case as an ordinary witness, who can invoke the right against self-incrimination
only when the incriminating question is propounded. Thus, for a party in a civil case to possess
the right to refuse to take the witness stand, the civil case must also partake
of the nature of a criminal proceeding.
In the present controversy, the case
is civil it being a suit for Annulment, Specific Performance with Damages. In order for petitioners to exercise the
right to refuse to take the witness stand and to give their depositions, the
case must partake of the nature of a criminal proceeding. The case on hand certainly cannot be
categorized as such. The fact that there
are two criminal cases pending which are allegedly based on the same set of
facts as that of the civil case will not give them the right to refuse to take
the witness stand and to give their depositions. They are not facing criminal
charges in the civil case. Like an
ordinary witness, they can invoke the right against self-incrimination only
when the incriminating question is actually asked of them. Only if and when incriminating questions are
thrown their way can they refuse to answer on the ground of their right against
self-incrimination.
On the second assigned error,
petitioners contend that the taking of their oral depositions should not be
allowed without leave of court as no answer has yet been served and the issues
have not yet been joined because their answers were filed ex abudanti cautela pending final resolution of the petition for certiorari challenging the trial court’s
Orders dated 12 March 1996 and 24 May 1996 that denied their motions to dismiss
and for reconsideration, respectively.
Section 1 of Rule 24[61]
of the Revised Rules of Court reads:
Section
1. Depositions pending action, when may be taken. – By leave of court after
jurisdiction has been obtained over any defendant or over property which is the
subject of the action, or without such leave after an answer has been served,
the testimony of any person, whether a party or not, may be taken, at the
instance of any party, 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 23. 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.
From
the quoted section, it is evident that once an answer has been served, the
testimony of a person, whether a party or not, may be taken by deposition upon
oral examination or written interrogatories.
In the case before us, petitioners contend they have not yet served an
answer to respondents because the answers that they have filed with the trial
court were made ex abudanti cautela. In other words, they do not consider the
answers they filed in court and served on respondents as answers contemplated
by the Rules of Court on the ground that same were filed ex abudanti cautela.
We
find petitioners’ contention to be untenable.
Ex abudanti cautela means “out
of abundant caution” or “to be on the safe side.”[62] An answer ex
abudanti cautela does not make their answer less of an answer. A cursory look at the answers filed by
petitioners shows that they contain their respective defenses. An answer is a pleading in which a defending
party sets forth his defenses[63]
and the failure to file one within the time allowed herefore
may cause a defending party to be declared in default.[64] Thus, petitioners, knowing fully well the
effect of the non-filing of an answer, filed their answers despite the pendency
of their appeal with the Court of Appeals on the denial of their motion to
dismiss.
Petitioners’
argument that the issues of the case have not yet been joined must necessarily
fail in light of our ruling that petitioners have filed their answers although
the same were made ex abudanti cautela. Issues are joined when all the parties have
pleaded their respective theories and the terms of the dispute are plain before
the court.[65] In the present case, the issues have, indeed,
been joined when petitioners, as well as the other defendants, filed their
answers. The respective claims and
defenses of the parties have been defined and the issues to be decided by the
trial court have been laid down.
We
cannot also sustain petitioners’ contention that the lower court erred when it
said that the joinder of issues is not required in order that Section 1, Rule
23 of the 1997 Rules of Civil Procedure may be availed of. Under said section, a deposition pending
action may be availed of: (1) with leave
of court when an answer has not yet been filed but after jurisdiction has been
obtained over any defendant or property subject of the action, or (2) without
leave of court after an answer to the complaint has been served. In the instant case, the taking of the deposition
may be availed of even without leave of court because petitioners have already
served their answers to the complaint.
WHEREFORE,
all the foregoing considered, the instant petition is dismissed for lack of
merit.
SO
ORDERED.
|
|
MINITA
V. CHICO-NAZARIO
Associate Justice |
WE CONCUR:
Chief Justice
Chairperson
ON LEAVE
Associate Justice Associate Justice
|
|
Acting Chairman |
|
|
|
|
|
|
|
ROMEO J.
CALLEJO, SR. Associate Justice |
|
Pursuant to Article VIII, Section 13
of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
|
|
Chief Justice |
* On leave.
** Acting Chairman.
[1] CA rollo, pp. 140-158; Penned by Associate Justice Artemon D. Luna with Associate Justices Eugenio S. Labitoria and Marina L. Buzon, concurring.
[2] Records, Vol. 2, pp. 883-884.
[3]
[4] CA rollo, p. 221.
[5] Records, Vol. 1, pp.1-45.
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20] Records, Vol. 2, pp. 586-587.
[21]
[22]
[23] The Court of Appeals dismissed the
petition on
[24] Records, Vol. 1, pp. 276-277.
[25] Records, Vol. 2, pp. 539-570.
[26] The latin phrase Ex Abudanti Cautela means “out of abundant caution.”
[27] Records, Vol. 2, pp. 608-611.
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37] Records, Vol. 3, pp. 926-932.
[38]
[39]
[40]
[41]
[42] CA rollo, pp. 2-111.
[43] Records, Vol. 3, pp. 1205-1207.
[44]
[45]
[46]
[47]
[48]
[49]
[50] The Court of Appeals dismissed the
petition for certiorari on
[51] Records, Vol. 4, pp. 1323-1361.
[52] CA rollo, pp. 140-158.
[53]
[54]
[55]
[56] Now Section 1, Rule 23 of the 1997 Rules of Civil Procedure.
[57] People
v. Ayson, G.R. No. 85215,
[58]
[59] Cabal v. Hon. Kapunan, Jr., 116 Phil. 1361, 1367-1368 (1962); Pascual, Jr., v. Board of Medical Examiners, 138 Phil. 361, 363 (1969).
[60] Galman v. Pamaran, G.R. Nos. L-71208-09
and L-71212-13,
[61] Substantially reproduced in 1997 Rules of Civil Procedure, Rule 23, Section 1.
[62] Black’s Law Dictionary, 8th Ed., p. 600.
[63] 1997 Rules of Civil Procedure, Rule 6, Section 4.
[64] 1997 Rules of Civil Procedure, Rule 9, Section 3.
[65] The 2002 Revised Manual For Clerks of Court, Vol. 1, p. 250.