RULE 24

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

Section 1. Depositions before action; petition. — A person who desires to perpetuate his or
her own testimony or that of another person regarding any matter that may be cognizable in
any court of the Philippines, may file a verified petition in the court of the place of the
residence of any expected adverse party. (1a)

NOTES:

As was mentioned before, the deposition pending action under Rule 23 of the Amended Rules is called deposition
de benne esse. On the other hand, the deposition under Rule 24 of the Amended Rules is referred to as deposition
perpetuam rei memoriam.

The afore-quoted Section 1, Rule 24 of the Amended Rules governs the taking of the deposition for purposes of an
anticipated action. Here, the deposition that may be taken is that of the would-be litigant or that of another
person, relative to any matter that be may be cognizable in any court of the Philippines.

Example:

Waldi and Randi entered into contract of lease, whereby Waldi leased a commercial space to
Randi. Subsequently, the two had a disagreement resulting from their contrasting interpretations
on some provisions in the contract of lease, as, according to Randi, the subject contractual
provisions did not truly reflect the true intention of the contracting parties. Somehow, the two
have exerted efforts at settling their dispute amicably, albeit Randi, for his part, already foresees a
possible litigation. Randi mulls the idea of calling their common friend, Renato Gwapo, as a
witness in the purported case, the latter being around during the negotiation of the subject lease
contract. Randi got wind, however, that Renato Gwapo and his family are migrating to Canada
and are already scheduled to leave soon.

Q: What can Randi do, if any, to secure the testimony of Renato Gwapo in advance or before the
filing of the case involving him, Randi, and Waldi?
A: Randi may file a petition in court to perpetuate the testimony of Renato Gwapo.

Q: What would be the nature of the action?

A: The action is purely for the perpetuation of the testimony of Renato Gwapo.

Q: How should it be done?

A: Randi should file a verified petition for the perpetuation of the testimony of Renato Gwapo
with the court in the residence of any expected adverse party – that is, with the appropriate
court in Waldi’s place of residence. The petition should be filed with the Regional Trial Court,
as it is one which is incapable of pecuniary estimation.
Section 2. Contents of petition. — The petition shall be entitled in the name of the petitioner
and shall show: (a) that the petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be brought; (b) the subject
matter of the expected action and his or her interest therein; (c) the facts which he or she
desires to establish by the proposed testimony and his or her reasons for desiring to
perpetuate it; (d) the names or a description of the persons he or she expects will be adverse
parties and their addresses so far as known; and (e) the names and addresses of the persons
to be examined and the substance of the testimony which he or she expects to elicit from
each, and shall ask for an order authorizing the petitioner to take the depositions of the
persons to be examined named in the petition for the purpose of perpetuating their
testimony. (2a)

Section 3. Notice and service. — The petitioner shall serve a notice upon each person
named in the petition as an expected adverse party, together with a copy of the petition,
stating that the petitioner will apply to the court, at a time and place named therein, for the
order described in the petition. At least twenty (20) calendar days before the date of the
hearing, the court shall cause notice thereof to be served on the parties and prospective
deponents in the manner provided for service of summons. (3a)

Section 4. Order and examination. — If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall make an order designating or
describing the persons whose deposition may be taken and specifying the subject matter of
the examination and whether the depositions shall be taken upon oral examination or
written interrogatories. The depositions may then be taken in accordance with Rule 23
before the hearing. (4)

Section 5. Reference to court. — For the purpose of applying Rule 23 to depositions for
perpetuating testimony, each reference therein to the court in which the action is pending
shall be deemed to refer to the court in which the petition for such deposition was filed. (5)

NOTES:

Sections 2 to 5, Rule 24 of the Amended Rules prescribe the requirements and the procedures relative to any such
petition for perpetuation of testimony, not the least of which is furnishing the potential adverse party or parties
with the notice about the hearing of the petition for perpetuation of testimony, together with a copy of the
petition itself, at least twenty (20) calendar days before the scheduled date of the hearing of the petition. This,
therefore, gives the potential adverse party or parties enough opportunity to interpose any objection to the
petition for perpetuation of the testimony.
If the court approves the petition for the perpetuation of the testimony, then it shall issue an order naming or
describing the person whose deposition may be taken, the subject matter of the examination, and whether the
deposition shall be taken upon oral examination or written interrogatories.

Ordinarily, although this is not always the case, the deposition-taking will be conducted by the presiding judge of
the court in which the perpetuation of the testimony is filed, especially if the deponent can be reached by the
subpoena of that court. Where that happens, the presiding judge of that court, just the same, makes no decision
therein or even make a finding as to the credibility of the witnesses or the probative value of their testimony. The
presiding judge merely hears the testimony of the witnesses and that is all. Instructive of this is the case of Alonso,
et al. vs. Lagdameo, 7 Phil. 75, thus:

“This contention on the part of the plaintiffs is absolutely unfounded. The perpetuation of testimony
in itself does not prove the existence of any right. By reason of its very nature it can refer to nothing
but facts, it consisting only of the mere declarations of witnesses. In proceedings for the perpetuation
of testimony no question of law is involved; the court makes no decision therein; no right is
recognized or declared in favor of or against anyone, and all that the court has to do is to hear the
witnesses and certify to their depositions. (Section 373, Code of Civil Procedure.) The court cannot
even make any findings as to the credibility of the witnesses or the probatory value of their testimony.
The only time when this can be done is at the trial where the testimony thus preserved is to be utilized
or offered in evidence in such cases; and in such manner as provided in section 375 of the code, being
subject even then to any objection in the same manner as the testimony of any other witness. (Section
376.) Therefore, properly speaking, the testimony thus perpetuated is not in itself conclusive proof,
either of the existence of any right nor even of the facts to which they relate, as it can be controverted
at the trial in the same manner as though no perpetuation of testimony was ever had.”

Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken under this

Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any
action involving the same subject matter subsequently brought in accordance with the
provisions of Sections 4 and 5 of Rule 23. (6)

NOTES:

Please see the discussions under Sections 4 and 5, Rule 23 of the Amended Rules, regarding the use of the
deposition either for impeachment purposes or as part of a party’s evidence in chief.

Section 7. Depositions pending appeal. — If an appeal has been taken from a judgment of a
court, including the Court of Appeals in proper cases, or before the taking of an appeal if
the time therefor has not expired, the court in which the judgment was rendered may allow
the taking of depositions of witnesses to perpetuate their testimony for use in the event of
further proceedings in the said court. In such case the party who desires to perpetuate the
testimony may make a motion in the said court for leave to take the depositions, upon the
same notice and service thereof as if the action was pending therein. The motion shall state
(a) the names and addresses of the persons to be examined and the substance of the
testimony which he or she expects to elicit from each; and (b) the reason for perpetuating
their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a
failure or delay of justice, it may make an order allowing the depositions to be taken, and
thereupon the depositions may be taken and used in the same manner and under the same
conditions as are prescribed in these Rules for depositions taken in pending actions. (7a)

NOTES:

The afore-quoted provision deals with the taking of deposition after the case had already been decided but before
the taking of an appeal if the time therefor has not expired, or even during the pendency of the appeal.

Here, the purported taking of the deposition may be had upon filing a motion with the court which rendered the
judgment (and this may include the Court of Appeals if the case was originally filed therein, like a case for petition
for annulment of judgment of the Regional Trial Court or habeas corpus).

The poser is: Why allow such taking of deposition when the case had already been decided?

It may be allowed in contemplation of a possible further proceeding in such case and in the same court.

Example:

Waldi filed a case against Randi with the Regional Trial Court – Branch 12, Cebu City, for recovery
of ownership and possession of a parcel of land. On motion filed by Waldi, Randi was declared in
default. The trial court then allowed Waldi to present his evidence ex parte and, thereafter, the
trial court rendered a judgment by default. Upon learning of the rendition of judgment by
default, but the before the same has become final and executory, Randi hurriedly file a Motion
for New Trial, alleging therein that his failure to file an answer in the case was due to accident or
excusable negligence.

Informatively, if the Motion for New Trial will be granted by the trial court, the case will be
re-opened, such that, Randi may thus be allowed to present his countervailing evidence,
including, among others, the testimony of Renato Gwapo, a vital witness, who happens, however,
to be leaving for Canada any time soon.

To address the situation, Randi may already file with the trial court a motion under the
afore-quoted Section 7, Rule 24 of the Amended Rules, to perpetuate the testimony of Renato
Gwapo, and this may be done during the pendency of Motion for New Trial.

Q: But what happens, if before Randi could file a motion to perpetuate the testimony of
Renato Gwapo, the trial court already resolved to deny Randi’s Motion for New Trial?
A: Where that happens, Randi may still file an appeal from the judgment by default, within the
balance of the period for perfecting an appeal, thereby assailing such judgment by default
as being contrary to the evidence or the law and thereby raising, as one of the issues in that
appeal, the propriety of declaring him in default and the denial of his motion of new trial
(Lina vs. Court of Appeals, 135 SCRA 637, Republic vs. Sandiganbayan, 540 SCRA 431).
And even if Randi has already filed a notice of appeal, as he is appealing from the
judgment by default, Randi can still file in the same trial court a motion under the
afore-quoted Section 7, Rule 24 of the Amended Rules, to perpetuate the testimony of
Renato Gwapo.