Judicial Affidavit Rule

NG MENG TAM, petitioner, vs. CHINA BANKING

CORPORATION, respondent.

FACTS: 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 Decision 7 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. 9
On March 15, 2011, petitioner served interrogatories to
parties 10 pursuant to Sections 1 11 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
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 Yap's 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 Yap's 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
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 petitioner's
characterization of Yap's 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.
ISSUE: WON 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.

HELD: YES. 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 shall 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 alterius: the
express mention of one person, thing, or consequence implies the
exclusion of all others. 26
Here, Yap is a requested witness who is the adverse party's 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 provision's application.
The situation created before us begs the question: if the
requested witness is the adverse party's 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:
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.  AcICHD

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.
Impeachment of Adverse Party’s Witness

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WINSTON

DE GUZMAN, accused-appellant.

FACTS: Winston de Guzman was charged before the Regional Trial

Court of Mati, Davao Oriental of the crime of rape of one Jovelyn A.
Geram in an information docketed as Criminal Case No. 2584.
Appellant pleaded not guilty when arraigned on the crime charged, and
the case then went to trial. After trial on the merits, appellant was
sentenced to suffer the penalty of reclusion perpetua, to indemnify
Jovelyn in the amount of P40,000.00 and to pay the costs. Hence, this
appeal. Appellant pleads for the reversal of the judgment of the trial
court, contending that the trial court erred in giving credence to the
testimony of Jocelyn and in finding him guilty on the basis thereof.

ISSUE: WON THE TESITOMONY OF THE COMPLAINANT MAY BE

IMPEACHED

HELD: NO. The Supreme Court ruled that the Rules of Court requires

that a witness cannot be impeached by evidence of contradictory
or prior inconsistent statements until the proper foundation or
predicate has been duly laid by the party against whom said
witness was called. In the present case, it would be unjust to
complainant to be declared an incredible witness as a result of the
unauthorized procedure adopted by appellant. It is evidentiarily
proscribed to discredit a witness on the bases of purportedly prior
inconsistent statements which were not called to the attention of that
witness during the trial, although the same are supposedly contained
in a document which was merely offered and admitted in its entirety
without the requisite specifications. With regard to the complaint
executed by the complainant, the Court also noted that the proper
basis not laid for the impeachment of complainant through the
statements contained in her complaint. Coupled with the basic
principle that courts shall consider no evidence which has not
been formally offered or whose purpose has not been specified,
the complaint cannot also be taken into account for impeaching
complainant. Hence, since no impeaching evidence having been
properly brought before the court a quo during trial, the lower court
was perfectly justified in disregarding the supposed inconsistent
statements of complainant in her complaint and her testimony during
the preliminary investigation. In view thereof, the judgment of the
court a quo is affirmed, with the modification that the indemnity is
increased to P50,000.00
 Unwilling/Hostile Witness

AUGUSTO GOMEZ, as Special Administrator of the Intestate

Estate of Consuelo Gomez, petitioner, vs. MARIA RITA GOMEZ-
SAMSON, MARCIAL SAMSON, JESUS B. GOMEZ, and the
REGISTER OF DEEDS OF PASIG and MARIKINA,
RIZAL, respondents.

AUGUSTO GOMEZ, as Special Administrator of the Intestate

Estate of Consuelo Gomez, petitioner, vs. ARISTON A. GOMEZ,
SR. (who died during the pendency of the cases below and
substituted by his surviving wife, LUZ BAYSON GOMEZ, and
children namely: ARISTON B. GOMEZ, JR., MA. RITA GOMEZ-
SAMSON, JESUS B. GOMEZ, MA. TERESA G. BLOOM,
MARIANO B. GOMEZ, and CARLOS B. GOMEZ) and ARISTON
B. GOMEZ, JR., respondents.

FACTS: On February 15, 1980, [petitioner] instituted these cases, to wit: (1)
Civil Case No. 36089, entitled: "Augusto Gomez, as Special Administrator of the
Intestate Estate of Consuelo Gomez, Plaintiff, versus Maria Rita Gomez-Samson,
Marcial Samson, Jesus B. Gomez, and the Registers of Deeds of Pasig and
Marikina, Rizal, Defendants"; and (2) Civil Case No. 36090, entitled: "Augusto
Gomez, as Special Administrator of the Intestate Estate of Consuelo Gomez,
Plaintiff, versus Ariston Gomez, Sr., and Ariston B. Gomez, Jr., Defendants", both
in the Regional Trial Court, Pasig City.
CONSUELO, ARISTON, SR. and Angel, all surnamed Gomez,
were sister and brothers, respectively. MARIA-RITA Gomez-
Samson, JESUS Gomez and ARISTON Gomez, JR. are the children
of ARISTON, SR. while AUGUSTO Gomez is the child of Angel.
In Civil Case No. 36089, plaintiff AUGUSTO alleged in his
complaint that CONSUELO, who died on November 6, 1979, was the
owner of the following real properties:
"(a) A parcel of land, with all the improvements thereon,
situated in Marikina, Metro Manila, covered by Transfer
Certificate of Title No. 340233 in her name, . . .;
"(b) A parcel of land, with all the improvements thereon,
situated in Marikina, Metro Manila, covered by Transfer
Certificate of Title No. 353818 in her name, . . .,"
"(c) A parcel of land, with all the improvements thereon,
situated in Pasig, Metro Manila, covered by Transfer Certificate
of Title No. 268396 in her name, . . .;"
that after the death of Consuelo, defendants Rita and Jesus
fraudulently prepared and/or caused to be prepared a Deed of
Donation Intervivos; that in the said document, Consuelo
donated the above described properties to defendants Rita and
Jesus; that the said defendants forged or caused to be forged
the signature of the donor, Consuelo; that the notarial
acknowledgement on the said document was antedated to April 21,
1979; that on the basis of the said document defendants sought the
cancellation of the certificates of title in the name of Consuelo and
the issuance of new ones in the names of defendants Rita and Jesus.
On the basis of the foregoing, plaintiff prayed that the Deed of
Donation Intervivos be declared false, null and void ab initio, and/or
be nullified; that TCT Nos. 340233, 353818, and 268396 be reinstated
or be replaced by titles in the name of the Intestate Estate of
Consuelo Gomez; and, that defendants be ordered to pay damages,
by way of attorney's fees and expenses of litigation plus costs.
On April 24, 1980, private defendants, and nominal defendants
Registers of Deeds of Pasig and Marikina, Rizal, filed their common
answer, denying the material allegations in the complaint and
asserting that a copy of the deed of donation was submitted to the
Notarial Section of the CFI of Quezon City as early as July 2, 1979; that
the said document is valid and not a forgery or otherwise subject to
 similar infirmity; that the said document being valid, the properties
covered therein passed in ownership to private defendants, as early
as April 20, 1979; that defendants have the perfect and absolute right
to cause the cancellation of TCT Nos. 340233, 353818, and 26839 and
request for the issuance of new certificates of titles in their
respective names; that they have the right to use, enjoy, possess,
dispose and own these properties; that no law was violated by the
nominal defendants when the old certificates of title were cancelled
and new certificates were issued in the name of the private
defendants, hence, plaintiff has no cause of action against the
nominal defendants neither has the court jurisdiction over the
foregoing issue.
Defendants thereafter prayed for moral damages of
P2,000,000.00; compensatory damages of P1,000,000.00; exemplary
damages of P500,000.00; attorney's fees of P200,000.00; and that
individual plaintiff be made jointly and severally liable with the estate
of Consuelo Gomez.

Petitioner claims that no credence should have been given to the

testimony of the notary public, Jose Sebastian, as said Jose
Sebastian is the same judge whom this Court had dismissed from
the service in Garciano v. Sebastian. 70 Petitioner posits that the
dismissal of Judge Jose Sebastian from the service casts a grave pall on
his credibility as a witness, especially given how, in the course of the
administrative proceedings against him, he had lied to mislead the
investigator, as well as employed others to distort the truth.

ISSUE: WON NOTARY PUBLIC IS A CREDIBLE WITNESS

HELD: YES. Petitioner points out that the Certification was made after the
death of Consuelo, and claims that the same appears to be a scheme by Jose
Sebastian to concoct an opportunity for him to make mention of the subject
Deeds of Donation intervivos, "despite the plain fact that the latter had utterly
no relation to the matter referred to by Jose Sebastian in the opening phrase
of the letter." 72
 It is well to note that, as stated by the Court of Appeals, Jose Sebastian
was originally a witness for petitioner Augusto. As such, Rule 132, Section 12,
of the Rules of Court prohibits petitioner from impeaching him:
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.

This rule is based on the theory that a person who produces a

witness vouches for him as being worthy of credit, and that a direct
attack upon the veracity of the witness "would enable the party to
destroy the witness, if he spoke against him, and to make him a good
witness, if he spoke for him, with the means in his hands of destroying
his credit, if he spoke against him." 73
Neither had there been declaration by the court that Jose
Sebastian was an unwilling or hostile witness. Jose Sebastian is also
neither an adverse party, nor an officer, director nor a managing agent
of a public or private corporation or of a partnership or association
which is an adverse party. 74
Be that as it may, even if Jose Sebastian had been declared by the
court as an unwilling or hostile witness, the third paragraph of Section
12 as quoted above, in relation to Section 11 75 of the same Rule, only
allows the party calling the witness to impeach such witness by
contradictory evidence or by prior inconsistent statements, and never
by evidence of his bad character. Thus, Jose Sebastian's subsequent
dismissal as a judge would not suffice to discredit him as a witness in
this case.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TERESITA

ARANDA Y DORIA, accused-appellant.
FACTS: "At about 5:00 p.m. on August 17, 1990, Pfc. Alexander Corpuz of the
Anti-Narcotics Unit of the Kalookan City Police Station received a phone call
at his office. The Informant told Pfc. Corpuz that a driver of a tricycle with
Plate No. NM-4831 was about to go to the corner of Gen. Tinio and Reparo
Streets, Bagong Barrio, Kalookan City, to buy "shabu" from one Teresita
Aranda. (TSN — Oct. 10, 1990, pp. 7-21). Upon being informed of the call, Lt.
Eliseo de Leon formed a team to verify the report. Pfc. Corpuz was chosen as
the team leader, while Pfc. Elmario Adelante and Pat. Romeo Sengson (sic)
were chosen as members. These policemen went to the indicated area by
riding in an owner-typed jeep owned by Pfc. Corpuz (TSN—Oct. 10, 1990, pp.
24-25). They arrived at the designated place shortly after 5:00 p.m. and Pfc.
Corpuz parked the jeep along Reparo and Gen. Tinio Streets. (TSN — Oct. 10,
1990, p. 25). The policemen alighted from the jeep and waited for the arrival
of a tricycle with Plate No. NM-4831. (TSN—Oct. 10, 1990, pp. 8-9; 27). A few
minutes later, the policemen noticed a tricycle with Plate No. NM-4831
coming from Gen. Tinio street. (TSN—Oct. 10, 1990, p. 30). The tricycle first
stopped at the corner of Suntan street. It then moved on the corner of Gen.
Concepcion and Reparo streets beside a store. The policemen who were
deployed in the area watched the movements of the tricycle. (TSN — Oct. 10,
1990, p. 35). After a couple of minutes, Teresita Aranda came out of the
compound at Suntan Street and went to the direction of the parked tricycle
at Gen. Concepcion and Reparo streets, Kalookan City. Teresita Aranda was
alone when she approached the tricycle and was seen carrying a shoulder
bag. (TSN—Oct. 15, 1990, p. 5). Just before Teresita Aranda boarded the
tricycle, she handed over what appeared to be small plastic bags to the
tricycle driver, who was subsequently identified as Benito Villanueva. Benito
Villanueva was then seated on the driver's seat of the tricycle. (TSN—Oct. 15,
1990, p. 6). At this point, Pfc. Alexander Corpuz signalled by hand Pfc.
Adelante and Pat. Sengco, who were then about five meters from the tricycle,
to approach the suspect Teresita Aranda and the tricycle driver (TSN—Oct.
15, 1990, p. 11). Pfc. Adelante immediately approached the two suspects.
When he saw Benito Villanueva about to throw away the two plastic bags
handed to him by Teresita Aranda, Pfc. Adelante grabbed the hand of Benito
Villanueva and recovered two plastic transparent bags containing suspected
Methamphetamine Hydrochloride. Pfc. Adelante then shouted: 'Sila'y
positive. Positive yan." (TSN — Oct. 15, 1990, p. 12). Pat. Sengco, on the other
hand, asked Teresita Aranda to open her closed right hand. Teresita Aranda
complied and Pat. Sengco found one small transparent plastic bag also
containing suspected Methamphetamine Hydrochloride (TSN — October 15,
1990, p. 19). After witnessing the foregoing, Pfc. Alexander Corpuz
immediately went to his jeep which was parked about 10 meters away from
the corner of Gen. Tinio and Reparo streets, and boarded (sic) two suspects
inside the jeep. (TSN — Oct. 15, 1990, p. 20). The suspects were thereafter
brought to the Kalookan City Police Station for investigation"
ISSUE: WON BENITO VILLANUEVA’s TESTIMONY MAY BE IMPEACHED

HELD. NO. During trial it was proven that the testimonies of the
comprehending officers were conflicting raising a doubt of innocence to the
accused.

The telling blow that devastated the case of the People of the
Philippines was the presentation of Benito Villanueva as prosecution witness.
Villanueva, the accused in Criminal Case No. 35533 and the driver of the
tricycle which appellant was riding when arrested, was presented to
elicit from him the identity of the person who delivered the drugs to
him. However, said witness when asked to identify the person who
delivered to him the said drugs, did not name appellant.
There was no showing that Villanueva was declared by the trial court as
a hostile witness as required in Section 12 of Rule 132 of the Rules of
Evidence.
Section 12, Rule 132 of the Rules on Evidence, provides as follows:
"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. (Italics supplied).
 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.

The prosecution also failed to show that Villanueva had an adverse

interest in the case, or was unjustifiably reluctant to testify, or had misled the
prosecution into calling him to the witness stand. Hence, Villanueva cannot
be considered as a hostile witness and the prosecution is bound by his
testimony that nothing was delivered to him by appellant.

When witness may refer to memorandum

 ROSELLA D. CANQUE, petitioner, vs. THE COURT OF APPEALS
and SOCOR CONSTRUCTION CORPORATION, respondents.

FACTS: This is a petition for review on certiorari filed by Rosella D.

Canque seeking the reversal of the decision of the Court of Appeals
affirming the judgment of the Regional Trial Court of Cebu City
ordering petitioner to pay private respondents the principal sum of
P299,717.75 plus interest thereon at 12% per annum from September
22, 1986, the date of the filing of the complaint until fully paid: to pay
private respondents the sum of P10,000.00 for reasonable attorney's
fees; to pay the sum of P552.86 for filing fees and to pay the costs of
suit. The Court of Appeals upheld the trial court's reliance on private
respondent's Book of Collectible Accounts on the basis of Rule 130,
Section 37 of the Rules of Court. In this petition, Canque contended
that the appellate court in admitting in evidence as entries in the
course of business the entries in private respondent's book of
collectible accounts considering that the person who made said entries
actually testified in this case but unfortunately had no knowledge of
said entries. Also, the decision of the respondent court should be
reversed as it has only inadmissible evidence to support.

ISSUE: WON BOOK OF COLLECTIBLES ADMISSABLE AS EVIDENCE

HELD: YES. The Supreme Court found the decision of the Court of
Appeals proper. The Court ruled that while the book of collectible
accounts was not a competent evidence to show deliveries and
the entries therein are mere hearsay, thus inadmissible in
evidence, there were other competent evidence such as exhibits
'L', 'M', 'N', 'O' to justify and support the private respondent's
money claim against the herein petitioner. Moreover, the Court said
that as petitioner was able to collect the full amount of the project
costs from the government, it would not be proper if she is not made
to put what is her just obligation under the contracts. Accordingly, the
appealed decision was affirmed.   |||

Second. It is nonetheless argued by private respondent that

although the entries cannot be considered an exception to the hearsay
rule, they may be admitted under Rule 132, §10 20 of the Rules of
Court which provides:
SEC. 10. When witness may refer to memorandum. — A
witness may be allowed to refresh his memory respecting a fact,
by anything written by himself or under his direction at the time
when the fact occurred, or immediately thereafter, or at any
other time when the fact was fresh in his memory and he knew
that the same was correctly stated in the writing; but in such
case the writing must be produced and may be inspected by the
adverse party, who may, if he chooses, cross-examine the
witness upon it, and may read it in evidence. So, also, a witness
may testify from such a writing, though he retain no
recollection of the particular facts, if he is able to swear that the
writing correctly stated the transaction when made; but such
evidence must be received with caution.

On the other hand, petitioner contends that evidence which is

inadmissible for the purpose for which it was offered cannot be admitted for
another purpose. She cites the following from Chief Justice Moran's
commentaries:
This is also the purpose for which its admission is sought as a
memorandum to refresh the memory of Dolores Aday as a witness.
In other words, it is the nature of the evidence that is changed, not
the purpose for which it is offered.

Present recollection revived

 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO
PLASENCIA y DESAMPARADO alias "Tonying," ROBERTO
DESCARTIN y PASICARAN alias "Ruby" and JOELITO (JULITO)
DESCARTIN y PASICARAN, accused-appellants

FACTS: At around ten o'clock in the morning of 29 November 1984,

Herminio Mansueto, wearing a blue and white striped t-
shirt, maong pants, Seiko 5 stop watch and a pandan hat, left on his bicycle
for Barangay Patao, Bantayan, Cebu. He had with him P10,000.00 cash
which he would use to purchase hogs from a certain "Ruby."

In Patao, Francisca Espina, also known in the locality as Pansing

and whose house was just across the street from the respective
residences of the three accused, saw at the roadside Herminio
Mansueto and Roberto Descartin alias "Ruby" engaged on
conversation. Pansing approached them and asked Mansueto if he
would be interested in buying two of her pigs for P1,400.00.
Mansueto said "yes" and promised that he would be right back.  aisadc

Mansueto and Ruby meantime proceeded to the latter's piggery.

Joelito Descartin and his brother-in-law Rene were also seen going to the
place. After some time, Pansing noticed Joelito take Mansueto's bicycle.
Believing that Mansueto was already preparing to leave and in her desire
to catch up with him, Pansing promptly walked towards the piggery which
was around 100 meters away from her house. She could see Mansueto
leaning on the pigsty with Ruby on his right side and Antonio
Plasencia alias "Tonying" on his left; behind was Joelito. 2 Midway,
she was halted on her tracks; she suddenly saw Antonio stab
Mansueto. The latter staggered towards Ruby who himself then
delivered another stab blow. Mansueto fell on his back. Joelito
started hitting Mansueto on the forehead while Rene held
Mansueto's legs. 3 Except for a coconut tree and some ipil-ipil trees
around the area, nothing obstructed Pansing's line of vision. Pansing
rushed back home. The image of Antonio waving the weapon and the
thought she might herself be killed kept her from revealing to
anyone what she saw. 4
 The following day, in Kodia, Madridejos, Cebu, where Mansueto
resided, his daughter Rosalinda reported to Francisca Tayo, the barangay
captain, that her father had not returned home. Tayo proceeded to
Putian, which was in Mansueto's itinerary, and then to Ruby's piggery in
Patao, where a youngster, who turned out to be Ruby's son, innocently
informed her that Mansueto's bicycle was taken by Joelito. 5
The day after, Francisca Tayo, accompanied by police officers of
Madridejos, Cebu, and some relatives of Mansueto, went back to Ruby's
place. On a railing of the pigpen, she saw the blood stains. When she
asked Ruby's father about it, he said that the stains had come from
chicken blood. Going around the piggery, she also saw blood stains on a
bamboo pole, which Ruby's father once again so identified as chicken
blood. At the back of piggery, Francisca noticed a digging which looked like
an empty grave. The digging was measured and photos were taken. The
police found a hat at the back of a hut beside the piggery, which was later
recognized to be that which belonged to Mansueto. 6  aisadc

In the morning of 30 November 1984, Patrolman Elpidio Desquitado

of the Bantayan police went back home to the piggery. This time, the
police learned from Pansing herself that Joelito took Mansueto's
bicycle. 7 Joelito was invited to the police headquarters to shed light on the
case. Later Joelito, waiving his right to counsel, executed a "confession." 8
Joelito narrated that, upon Ruby's instruction, he brought the bicycle
to the piggery. Unexpectedly, he said, Tonying Plasencia stabbed
Mansueto. Stunned, Joelito tried to run away but Tonying stopped him.
Tonying then dragged the victim to a nearby house. Threatened by
Tonying, Joelito agreed to later return to where the victim's body was
dragged. At around eleven o'clock that evening, Tonying and Joelito placed
the body in a sack. Tonying asked Ruby to allow the use of the latter's
pumpboat to ferry the body. Tonying paddled the pumpboat to the island
of Po-Po'o where he picked up some pieces of stones. Then, again
paddling the pumpboat farther away from the island, he ordered Joelito to
start the engine of the boat. They headed for the islet of Gilotongan
(Hilotongan). On the way, Tonying filled the sack with stones and, using a
rope, tied to it the body of the victim. Tonying then unloaded their cargo
into the sea.
 Guided by Joelito, members of the Bantayan police force headed for
the islet of Hilotongan on two pumpboats 9 in the area pinpointed to be
the place where the body was dumped. On the second day of the search,
the group was informed that the body had already surfaced near the
vicinity of the search and delivered to the municipal building.

ISSUE: WON TESTIMONY OF FRANCISCA ESPINA MAY BE ADMITTED.

HELD. YES. The use of memory aids during an examination of a

witness is not altogether proscribed. Section 16, Rule 132, of the Rules of
Court states:

"SECTION 16. When witness may refer to memorandum. — A

witness may be allowed to refresh his memory respecting a fact, by
anything written or recorded by himself or under his direction at the
time when the fact occurred, or immediately thereafter, or at any
other time when the fact was fresh in his memory and he knew that the
same was correctly written or recorded; but in such case the writing or
record must be produced and may be inspected by the adverse party,
who may, if he chooses, cross-examine the witness upon it and may read
it in evidence.So also, a witness may testify from such a writing or
record, though he retain no recollection of the particular facts, if he is
able to swear the writing or record correctly stated the transaction
when made; but such evidence must be received with caution."
(Emphasis supplied.)

Allowing a witness to refer to her notes rests on the sound discretion of

the trial court. 23 In this case, the exercise of that the discretion has not
been abused; the witness herself has explained that she merely wanted to
be accurate on dates and like details.  cdasia

Appellants see inadvertency on Francisca's appearing to be "jittery"

on the witness stand. Nervousness and anxiety of a witness is a natural
reaction particularly in the case of those who are called to testify for the
first time. The real concern, in fact, should be when they show no such
emotions.
 Francisca did fail in immediately reporting the killing to the police
authorities. Delay or vacillation, however, in making a criminal accusation
does not necessarily adulterate the credibility of the witness. 24 Francisca,
in her case, has expressed fears for her life considering that the
assailants, being her neighbors, could easily exact retribution on
her. 25 Also, the hesitancy in reporting the occurrence of a crime in rural
areas is not unknown. 26
Francisca's inability to respond to the summons for another
appearance in court for further questioning was satisfactorily explained
by the prosecution. Francisca at the time just had a miscarriage and was
found to be too week to travel. The recall of the witness was, after all, at
the sound discretion of the trial court.
 JUAN T. BORROMEO, petitioner, vs. COURT OF APPEALS,
EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B.
AZNAR, respondents.

[G.R. No. L-31740. April 7, 1976.]

EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, As

Special Administrator of the Estate of Matias H.
Aznar, petitioners, vs. COURT OF APPEALS and JUAN T.
BORROMEO, As Special Administrator of the Estate of
Simeon Rallos

FACTS: The controversy centers on the true nature of three

documents which on their faces are unquestionably deeds of absolute
sale of the real properties therein described executed by the deceased
Rallos on various dates in favor of Emmanuel Aznar and his sister. In the
court below, Juan T. Borromeo, as administrator of the estate of Rallos
prayed for the reformation of the documents alleging that these
documents were in fact equitable mortgages to secure the loans granted
to Rallos by Matias Aznar, the deceased father of Emmanuel and Alma.
The trial court dismissed the complaint and on appeal, said dismissal was
affirmed by the Court of Appeals in its original decision. However, in
its per curiam resolution, this position was completely reversed. The
appellate court admitted pieces of evidence that it had previously rejected
and held that the notations and memoranda of Crispina Rallos Alcantara,
although previously considered self-serving and unsatisfactory evidence
of the facts asserted, may be considered as constituting part of the res
gestae and hence admissible in evidence to show the nature of the
contracts in question. Further, it found that the Aznars "retained part of
the purchase price" stipulated in the deed in question and that there was
unusual inadequacy in the purchase price thereby justifying the
presumption created by Article 1602 of the Civil Code that whenever said
circumstances are shown, the transaction should be considered as
equitable mortgages.
 G.R. No. L-31342 seeks the modifications of the per
curiam resolution of the Court of Appeals, dated November 19, 1969 in
order to include an award of damage and an increase of attorney's fees.
G.R. No. L-31740 seeks to set aside the same resolution which reversed
entirely its previous decision of January 30, 1968 thereby ultimately
holding, inter alia that the questioned transactions are equitable
mortgages, instead of absolute sales.
The Supreme Court held that the rulings in the appealed resolution
as to the admissibility of the evidence are legally erroneous such that the
original decision of the Court of Appeals affirming that of the trial court
must stand.

 (Borromeo v. Court of Appeals, G.R. No. L-31342, L-31740, [April 7, 1976],

|||

162 PHIL 430-470)

 JOSIELENE LARA CHAN, petitioner, vs. JOHNNY T.
CHAN, respondent.

FACTS: On February 6, 2006 petitioner Josielene Lara Chan (Josielene)

filed before the Regional Trial Court (RTC) of Makati City, Branch 144 a
petition for the declaration of nullity of her marriage to respondent Johnny
Chan (Johnny), the dissolution of their conjugal partnership of gains, and the
award of custody of their children to her. Josielene claimed that Johnny failed
to care for and support his family and that a psychiatrist diagnosed him as
mentally deficient due to incessant drinking and excessive use of prohibited
drugs. Indeed, she had convinced him to undergo hospital confinement for
detoxification and rehabilitation.
Johnny resisted the action, claiming that it was Josielene who failed in
her wifely duties. To save their marriage, he agreed to marriage counseling
but when he and Josielene got to the hospital, two men forcibly held him by
both arms while another gave him an injection. The marriage relations got
worse when the police temporarily detained Josielene for an unrelated crime
and released her only after the case against her ended. By then, their
marriage relationship could no longer be repaired.  aSTAIH

During the pre-trial conference, Josielene pre-marked the Philhealth

Claim Form 1 that Johnny attached to his answer as proof that he was forcibly
confined at the rehabilitation unit of a hospital. The form carried a
physician's handwritten note that Johnny suffered from "methamphetamine
and alcohol abuse." Following up on this point, on August 22, 2006 Josielene
filed with the RTC a request for the issuance of a subpoena duces
tecum addressed to Medical City, covering Johnny's medical records when he
was there confined. The request was accompanied by a motion to "be
allowed to submit in evidence" the records sought by subpoena duces
tecum. 2
Johnny opposed the motion, arguing that the medical records were
covered by physician-patient privilege. On September 13, 2006 the RTC
sustained the opposition and denied Josielene's motion. It also denied her
motion for reconsideration, prompting her to file a special civil action
of certiorari before the Court of Appeals (CA) in CA-G.R. SP 97913, imputing
grave abuse of discretion to the RTC.
 On September 17, 2007 the CA 3 denied Josielene's petition. It ruled
that, if courts were to allow the production of medical records, then patients
would be left with no assurance that whatever relevant disclosures they may
have made to their physicians would be kept confidential. The prohibition
covers not only testimonies, but also affidavits, certificates, and pertinent
hospital records. The CA added that, although Johnny can waive the privilege,
he did not do so in this case. He attached the Philhealth form to his answer
for the limited purpose of showing his alleged forcible confinement.

ISSUE: WON SUBPOENA DUCES TECUM WOULD BE ALLOWED.

HELD: NO. Josielene requested the issuance of a subpoena duces

tecum covering the hospital records of Johnny's confinement, which records
she wanted to present in court as evidence in support of her action to have
their marriage declared a nullity. Respondent Johnny resisted her request for
subpoena, however, invoking the privileged character of those records. He
cites Section 24 (c), Rule 130 of the Rules of Evidence which reads:
SEC. 24.Disqualification by reason of privileged
communication. — The following persons cannot testify as to matters
learned in confidence in the following cases:
xxx xxx xxx
(c) A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the patient,
be examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient in
a professional capacity, which information was necessary to enable
him to act in that capacity, and which would blacken the reputation
of the patient.

The physician-patient privileged communication rule essentially means

that a physician who gets information while professionally attending a
patient cannot in a civil case be examined without the patient's consent as to
any facts which would blacken the latter's reputation. This rule is intended to
encourage the patient to open up to the physician, relate to him the history
of his ailment, and give him access to his body, enabling the physician to
make a correct diagnosis of that ailment and provide the appropriate cure.
Any fear that a physician could be compelled in the future to come to court
and narrate all that had transpired between him and the patient might
prompt the latter to clam up, thus putting his own health at great risk. 4  HCDaAS

1. The case presents a procedural issue, given that the time to object to
the admission of evidence, such as the hospital records, would be at the time
they are offered. The offer could be made part of the physician's testimony
or as independent evidence that he had made entries in those records that
concern the patient's health problems.
Section 36, Rule 132, states that objections to evidence must be made
after the offer of such evidence for admission in court. Thus:
SEC. 36.Objection. — Objection to evidence offered orally must
be made immediately after the offer is made.
Objection to a question propounded in the course of the oral
examination of a witness shall be made as soon as the grounds
therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three
(3) days after notice of the offer unless a different period is allowed
by the court.
In any case, the grounds for the objections must be specified.

Since the offer of evidence is made at the trial, Josielene's request

for subpoena duces tecum is premature. She will have to wait for trial to
begin before making a request for the issuance of a subpoena duces
tecum covering Johnny's hospital records. It is when those records are
produced for examination at the trial, that Johnny may opt to object, not just
to their admission in evidence, but more so to their disclosure. Section 24 (c),
Rule 130 of the Rules of Evidence quoted above is about non-disclosure of
privileged matters.
||| (Chan v. Chan, G.R. No. 179786, [July 24, 2013], 715 PHIL 67-77)