Dulay v.

Dulay (2005, Tinga)

Facts:

Rodrigo Dulay (respondent) filed a complaint against his nephew Pfeger Dulay (petitioner) for recovery of
his bank deposit. In his complaint, Rodrigo alleged that he opened a trust account with the Bank of Boston (USA)
naming Pfeger as his trustee. Unknown to him, Pfeger allegedly depleted the bank account without his consent. Since
Rodrigo is in the US, he filed a petition for the issuance of letters rogatory in order to get his deposition
and a representative from the Bank of Boston. Petitioner also filed with the court its motion to be allowed to do
cross-examination of the witnesses on account of the written interrogatories filed by respondent.

Unfortunately, there had been a considerable delay in taking the deposition of Rodrigo and the bank
representative because the Massachusetts Court brushed aside the letters rogatory sent to it by the Philippine
court hearing the case. Depositions were eventually taken through a notary public in New York. But said
depositions were not admitted automatically. The Philippine Court also required Rodrigo to submit an
authentication by the Philippine Consulate in New York of said depositions and a certification of the notary
public’s authority. Said authentication was subsequently submitted by Rodrigo. Because of these delays in
obtaining the depositions, Pfeger filed an omnibus motion praying for the dismissal of the case due to
failure to prosecute. In said motion, he also questioned the validity of the depositions for lack of substantial
compliance with Rule 23, secs. 11, 12 and 14, since it was a notary public in New York and not the clerk of court in
Boston, which took the depositions.

Issue:

WON the depositions taken are inadmissible for non-compliance with Rule 23.

Ruling:

NO, the depositions taken are not invalid. In our jurisdiction, depositions in foreign countries may be taken: (a) on
notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the
Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under
letters rogatory; or (c) before any person authorized to administer oaths as stipulated in writing by the parties.
While letters rogatory are requests to foreign tribunals, commissions are directives to officials of the issuing
jurisdiction.

Generally, a commission is an instrument issued by a court of justice, or other competent tribunal, directed to a
magistrate by his official designation or to an individual by name, authorizing him to take the depositions
of the witnesses named therein, while a letter rogatory is a request to a foreign court to give its
aid, backed by its power, to secure desired information. Commissions are taken in accordance with the rules
laid down by the court issuing the commission, while in letters rogatory, the methods of procedure are under the
control of the foreign tribunal. Leave of court is not required when the deposition is to be taken before a secretary of
embassy or legation, consul general, consul, vice-consul or consular agent of the Republic of the Philippines and the
defendant’s answer has already been served. However, if the deposition is to be taken in a foreign country where the
Philippines has no secretary of embassy or legation, consul general, consul, vice-consul or consular agent, it
may be taken only before such person or officer as may be appointed by commission or under letters rogatory.

In the instant case, the authentication made by the consul was a ratification of the authority of the notary public who
took the questioned depositions. The deposition was, in effect, obtained through a commission, and no
longer through letters rogatory. It must be noted that this move was even sanctioned by the trial court by
virtue of its Order dated 28 September 2000. With the ratification of the depositions in issue, there is no more
impediment to their admissibility. Besides, the allowance of the deposition cannot be said to have caused any
prejudice to the adverse party. They were given the opportunity to cross-examine the witnesses
through their cross- interrogatories, which were in turn answered by the deponents. Save for the complaint of
delay in the proceedings, petitioners were unable to point out any injury they suffered as a result of the trial court’s
action.