Republic of the Philippines

REGIONAL TRIAL COURT

Fourth Judicial Region
Branch 1

PEOPLE OF THE PHILIPPINES, CRIM. CASE No. 12345

Plaintiff,
-versus- For

xxx, Violation of Republic Act No. 6539;

Accused. Violation of Sections 11 and 12 of
x------------------------------------------x Republic Act No. 9165

COMMENT / OPPOSITION TO PROSECUTION’S MOTION TO

AMEND THE PRE-TRIAL ORDER TO INCLUDE A WITNESS

The Accused, thru the undersigned counsel and to this Honorable

Court, respectfully submits this COMMENT/OPPOSITION TO
PROSECUTION’S MOTION TO AMEND THE PRE-TRIAL ORDER TO
INCLUDE A WITNESS and avers that:

1. The undersigned received a copy of the prosecution’s Motion

to Amend the Pre-Trial Order to Include a Witness on September 30, 2019;

2. The motion states that one of the intended witness for the
prosecution was unintentionally excluded as a witness for the prosecution
during the pre-trial proceeding conducted on November 12, 2018 and that
the said witness, in the name of EDDIE OBLAN ESTIANDAN, who is the
private nominal complainant and the owner of the motorcycle, is a vital
witness in this case;

3. A thorough and careful reading of the records of this case

would undeniably show that these cases have been set and reset for a
number of times due to the absence and unavailability of the prosecution
witnesses. Moreover, on July 3, 2019 and on September 12, 2019, the
prosecution was able to present Police Officers Maceda and Musa,
respectively. Thus, the prosecution actively participated in the trial of the
case, which could be deduced as its assent to the order of the trial as set
forth in the pre-trial order, resulting to estoppel on their part;

4. Moreover, the prosecution failed to set the said motion for

hearing as required under the Rules of Court. The Notice stated in the said
motion states:

“Please submit the foregoing Motion for the consideration and

resolution of the Honorable Court immediately upon receipt hereof,
without further oral argument.”

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 Section 4 of Rule 15 of the 1997 Rules of Court provides that:

Section 4. Hearing of motion. — Except for motions which the

court may act upon without prejudicing the rights of the adverse
party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the

hearing thereof shall be served in such a manner as to ensure its
receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on
shorter notice.

It has been well settled that a motion, which fails to comply with the
requirements under Sections 4,5, and 6 of Rule 15 of the Rules of Court is
a mere scrap of paper.1 In Fajardo v. Court of Appeals2, the Supreme Court
held that a motion without a notice of hearing is pro forma, a mere scrap of
paper. The rationale behind the rule is plain: unless the movant sets the
time and place of hearing, the court will be unable to determine whether
the adverse party agrees or objects to the motion, and if he objects, to
hear him on his objection.3

5. The motion to amend the pre-trial order filed by the

prosecution is a litigated motion which should be set for hearing for the
Court to determine whether the accused agrees or objects to the said
motion especially considering that this motion was filed for almost ten (10)
months after the pre-trial has been conducted and the prosecution have
been able to present their witnesses and should the same be granted, it
would materially affect the right of the accused to due process.

WHEREFORE, premises considered, it is most respectfully prayed

of this Honorable Court that the Motion to Amend the Pre-Trial Order to
Include a Witness filed by the Prosecution be denied.

Respectfully submitted.

In ___________________, this 2nd day of October 2019.

NOTICE

Please take notice that the undersigned will be submitting the

foregoing comment/opposition to the prosecution’s Motion to Amend the

1
Neri v. Dela Peña, 457 SCRA 538, 546.
2
G.R. No. 140356, March 20, 2001.
3
See Note 3.

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Pre-Trial Order to Include a Witness for the consideration of the Honorable
Court.

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