Ng Meng Tam vs. China Banking Corporation

Section 5 of the Judicial Affidavit Rule applies only to a government employee or official, or a requested witness who is neither the witness of the adverse party nor a hostile witness, and who unjustifiably declines to execute a judicial affidavit or refuses without just cause to make relevant documents available. Adverse party witnesses and hostile witnesses are expressly excluded from the provision; their presentation is governed by the general rules on discovery and evidence under the Rules of Court.

China Banking Corporation filed a collection suit against Ever Electrical Manufacturing Company Inc., petitioner Ng Meng Tam, and others, based on a loan and two surety agreements. Petitioner contested the validity of the sureties, alleged he received no demand, and invoked prescription and laches. While the case was pending, petitioner served written interrogatories on the bank’s account officer, George C. Yap. Dissatisfied with the answers, petitioner applied for subpoenas to compel Yap’s testimony and the production of documents. When Yap was called to the stand, the bank objected, invoking Section 5 of the Judicial Affidavit Rule on the ground that petitioner had not obtained Yap’s judicial affidavit. The RTC sustained the objection, reasoning that Yap was an adverse witness and Section 5 did not apply because he had not unjustifiably refused to execute an affidavit.

• Nature: Civil Case No. 08-1028 was a collection suit filed by respondent China Banking Corporation against Ever Electrical Manufacturing Company Inc., the heirs of Go Tong, Vicente Go, George Go, and petitioner Ng Meng Tam. The bank sought to recover a loan of ₱5,532,331.63 allegedly guaranteed by two surety agreements executed by Vicente Go, George Go, and petitioner for ₱5,000,000.00 each, dated December 9, 1993 and May 3, 1995.
• Defenses: Petitioner answered that the surety agreements were void contracts of adhesion, antedated the 2004 loan, and insisted he never received any demand letter. He moved for a preliminary hearing on the grounds that the suit was barred by prescription and laches.
• Preliminary Hearing: The RTC initially denied the motion, but the Court of Appeals ruled that a preliminary hearing was proper under Section 6, Rule 16 of the Rules of Court. The CA decision became final and executory.
• Discovery Efforts: On March 15, 2011, petitioner served written interrogatories on China Bank under Section 1, Rule 25, requiring answers from George C. Yap, Account Officer of the Account Management Group. Yap executed his answers on June 22, 2011. Petitioner considered the answers evasive and not fully responsive.
• Subpoena and Objection: Petitioner applied for subpoenas duces tecum and ad testificandum against Yap under Section 6, Rule 25. On April 29, 2014, when Yap was called to testify, China Bank objected, asserting that under Section 5 of the Judicial Affidavit Rule, Yap could not be compelled to testify because petitioner had not obtained and presented his judicial affidavit.
• RTC Rulings: In its May 28, 2014 Order, the RTC held that Section 5 applies only to a witness who is neither the adverse party’s witness nor a hostile witness and who unjustifiably declines to execute a judicial affidavit. It ruled that because Yap was an adverse witness and no unjustified refusal was shown, Section 5 did not apply. The RTC likewise rejected China Bank’s claim that the answers to interrogatories sufficed as a judicial affidavit. The motion for reconsideration was denied on August 27, 2014, with the RTC adding that Yap’s prior sworn answers made compelling him to testify unreasonable, oppressive, and harassing.

• Scope of Section 5 of the JAR: Petitioner argued that Section 5 expressly excludes adverse party witnesses and hostile witnesses; the RTC’s interpretation requiring a judicial affidavit from Yap was contrary to the rule’s plain wording.
• Intent and Practical Construction: Petitioner maintained that the RTC’s reading contravened the rule’s practical intention and common sense, which is to streamline proceedings, not to foreclose a party’s right to present an adverse witness.
• Rules on Discovery: Petitioner insisted that the RTC effectively disregarded Section 6, Rule 25 of the Rules of Court, which he had already satisfied by serving written interrogatories, thus entitling him to compel Yap’s testimony as a hostile witness.
• Policy Argument (Alternative): Petitioner posited that if the RTC’s interpretation were correct, the Supreme Court should amend the Judicial Affidavit Rule to provide sanctions when an adverse or hostile witness refuses to execute a judicial affidavit.

• No Unjustified Refusal: China Bank contended that Yap had not unjustifiably refused to execute a judicial affidavit; the objection was raised by counsel, and the RTC itself found that compelling Yap to testify would be unreasonable, oppressive, and pure harassment given his prior sworn answers to interrogatories.
• Mandatory Application of the JAR: Respondent argued that Section 2 of the JAR mandates the filing of judicial affidavits for all witnesses, and this mandatory character should extend to an adverse witness called by the opposing party.

• Interpretation of Section 5 of the Judicial Affidavit Rule: Whether Section 5 of the Judicial Affidavit Rule requiring a judicial affidavit applies to an adverse party witness or hostile witness whom a party seeks to compel to testify.

• Interpretation of Section 5 of the Judicial Affidavit Rule: Section 5 of the Judicial Affidavit Rule does not apply to adverse party witnesses or hostile witnesses. The provision explicitly confines its coverage to a government employee or official, or a requested witness, “who is neither the witness of the adverse party nor a hostile witness.” Under the maxim expressio unius est exclusio alterius, the express mention of this exclusion means that adverse and hostile witnesses are outside the provision’s reach. Consequently, a party intending to present an adverse party’s witness or a hostile witness need not first obtain a judicial affidavit under Section 5. Instead, the ordinary rules on evidence and discovery govern. Because petitioner had served written interrogatories as required by Section 6, Rule 25 of the Rules of Court—a prerequisite this Court affirmed in Afulugencia v. Metrobank—and because the procedure for declaring and impeaching a hostile witness under Section 12, Rule 132 remains available, the RTC should have allowed the presentation of Yap as a witness.

• Expressio unius est exclusio alterius — The express mention of one person, thing, or consequence implies the exclusion of all others. The phrase “who is neither the witness of the adverse party nor a hostile witness” in Section 5 of the JAR necessarily excludes adverse party witnesses and hostile witnesses from the provision’s application.
• Procedure for presenting adverse party witnesses in civil cases — Under Section 6, Rule 25 of the Rules of Court, a party cannot compel the adverse party to testify in open court unless written interrogatories are first served. This requirement prevents fishing expeditions, limits harassment, and maintains order in trial. Once interrogatories are served, the party may call the adverse party as a witness, and if the witness proves hostile, the party may seek a judicial declaration of hostility and impeach the witness under Section 12, Rule 132.
• Scope of the Judicial Affidavit Rule — The JAR mandates parties to file judicial affidavits of their own witnesses in lieu of direct testimony to reduce trial time. It applies to pending cases. Section 5, however, is not a universal subpoena mechanism; it is a limited remedy for neutral or third-party witnesses who unjustifiably refuse to cooperate, and it expressly excludes adverse and hostile witnesses. The JAR must be harmonized with existing rules on evidence and discovery.

• “Expressio unius est exclusion alterius: the express mention of one person, thing, or consequence implies the exclusion of all others.”
• “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. … Thus, adverse party witnesses and hostile witnesses being excluded they are not covered by Section 5.”
• “In sum, Section 5 of the JAR expressly excludes from its application adverse party and hostile witnesses. For the presentation of these types of witnesses, the provisions on the Rules of Court under the Revised Rules of Evidence and all other correlative rules including the modes of deposition and discovery rules shall apply.”

• Afulugencia v. Metropolitan Bank & Trust Co., G.R. No. 185145, February 5, 2014, 715 SCRA 399 — Followed and applied. The Court relied on this precedent to reiterate that prior written interrogatories are necessary before compelling an adverse party to testify, and that such procedure prevents fishing expeditions and harassment. The ruling provided the operational framework for allowing Yap’s testimony after compliance with Rule 25.
• Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation (PSALM), G.R. No. 192088, October 9, 2012, 682 SCRA 602 — Cited for the definition of the maxim expressio unius est exclusio alterius.

• Section 5, Judicial Affidavit Rule (A.M. No. 12-8-8-SC) — Interpreted to apply only to a government employee/official or a requested witness who is neither the adverse party’s witness nor hostile and who unjustifiably refuses to execute a judicial affidavit or produce documents. It expressly excludes adverse party and hostile witnesses from its subpoena mechanism.
• Section 2(a), Judicial Affidavit Rule — Mandates the filing of judicial affidavits of a party’s own witnesses in lieu of direct testimony; harmonized with the Section 5 exclusion for adverse/hostile witnesses.
• Section 6, Rule 25, Rules of Court — Requires prior service of written interrogatories before an adverse party may be compelled to testify in open court. Petitioner’s compliance entitled him to call Yap.
• Section 12, Rule 132, Rules of Court — Governs the declaration and impeachment of an unwilling or hostile witness; provides the procedure for questioning such a witness after the formal requisites are met.
• Section 12, Judicial Affidavit Rule — Provides that the JAR “shall also apply to existing cases” from its effectivity on January 1, 2013.

Velasco, Jr. (Chairperson), Peralta, Perez, Jardeleza, JJ.