Rosete vs. Lim

A party in a purely civil action cannot altogether refuse to take the witness stand or submit to a deposition on the ground of the right against self-incrimination; the privilege may be claimed only when a specific incriminatory question is asked, and the pendency of related criminal cases does not transform the civil suit into a criminal proceeding. Moreover, an answer filed ex abundanti cautela constitutes a valid answer that joins the issues and allows the taking of depositions without leave of court under Section 1, Rule 23 of the Rules of Court.

Spouses Juliano and Lilia Lim filed a civil complaint for annulment of a deed of sale, specific performance, and damages against AFP Retirement and Separation Benefits System (AFP-RSBS), Espreme Realty and Development Corporation, Alfredo P. Rosete, Oscar P. Mapalo, Chito P. Rosete, Bank of the Philippine Islands (BPI), and the Register of Deeds of Occidental Mindoro. The complaint sought to nullify the sale of certain parcels of land by AFP-RSBS to Espreme Realty and to restore ownership and title to the Lims. Petitioners moved to dismiss on jurisdictional and venue grounds; the motions were denied and the denial was challenged by petitioners in the Court of Appeals. During the pendency of that certiorari proceeding, petitioners filed answers labeled ex abundanti cautela (out of abundant caution) to avoid being declared in default. Two criminal cases for B.P. 22 and Estafa, based on the same set of facts, were pending against Oscar Mapalo and Chito Rosete, with respondent Juliano Lim as the private complainant. The Lims thereafter served notice to take the oral deposition of Oscar Mapalo and Chito Rosete. Petitioners objected, arguing that leave of court was required because no proper answer had been served, and that the depositions would violate their right against self-incrimination. The trial court overruled the objections and scheduled the deposition, and the Court of Appeals upheld the trial court’s orders. Petitioners elevated the matter to the Supreme Court.

• Nature of the Action: On 5 December 1995, respondents Juliano and Lilia Lim filed a civil complaint for Annulment of Deed of Sale, Specific Performance with Damages against AFP-RSBS, Espreme Realty and Development Corporation, petitioners Alfredo P. Rosete, Oscar P. Mapalo, Chito P. Rosete, BPI, and the Register of Deeds of Occidental Mindoro. The complaint sought nullification of a deed of sale executed by AFP-RSBS covering certain parcels of land in favor of Espreme Realty, restoration of ownership and title to respondents, and cancellation of the titles in Espreme Realty’s name.
• Initial Procedural Skirmishes: Petitioners moved to dismiss the complaint on grounds of lack of jurisdiction over the subject matter and improper venue. The RTC denied the motion on 12 March 1996 and the subsequent motion for reconsideration on 24 May 1996. Petitioners challenged these orders via a Petition for Certiorari and Prohibition in the Court of Appeals (CA-G.R. SP No. 40837).
• Answer Ex Abundanti Cautela: While the certiorari petition was pending, petitioners filed an Answer dated 6 June 1996, expressly denominated ex abundanti cautela (out of abundant caution), to avoid being declared in default.
• Pending Criminal Cases: At the time of the deposition dispute, two criminal cases—for violation of Batas Pambansa Blg. 22 and for Estafa—were pending before the City Prosecutors of Mandaluyong City and Pasig City. Respondent Juliano Lim was the private complainant in those criminal cases, and petitioners Oscar Mapalo and Chito Rosete were the respondents. The factual allegations in the criminal complaint-affidavits were identical to those in the civil complaint.
• Notice of Deposition and Objection: On 28 May 1997, respondents served a Notice to Take Deposition Upon Oral Examination setting the deposition of Oscar Mapalo and Chito Rosete on 18 and 20 June 1997. Petitioners objected by Urgent Ex-Parte Motion and Objection, arguing that (a) leave of court was required because no answer had been served—the answer having been filed only ex abundanti cautela—and the issues had not been joined; and (b) the deposition would violate the petitioners’ constitutional right against self-incrimination, as the questions would necessarily elicit testimony that could incriminate them in the pending criminal cases.
• Trial Court’s Orders: In an Order dated 22 July 1997, the RTC denied the objection and scheduled the taking of the deposition. The court reasoned that the answer ex abundanti cautela constituted an answer, obviating the need for leave of court, and that the right against self-incrimination would not be violated because petitioners could invoke the privilege when a specific incriminatory question was asked. The RTC denied reconsideration in an Order dated 27 August 1997 and re-scheduled the deposition.
• Court of Appeals Ruling: Petitioners filed a Petition for Certiorari and Prohibition in the Court of Appeals (CA-G.R. SP No. 45400), which dismissed the petition on 24 August 1998. The appellate court held that the trial court did not gravely abuse its discretion; petitioners, as defendants in a purely civil action, were akin to ordinary witnesses and could not refuse to appear and testify entirely, and the filing of an answer ex abundanti cautela satisfied the requirement for deposition without leave of court. A motion for reconsideration was denied on 19 October 1998.

• Right Against Self-Incrimination: Petitioners argued that the taking of their oral depositions would violate the right against self-incrimination guaranteed under Section 17, Article III of the Constitution. They maintained that because they were also accused in two pending criminal cases founded on the same factual allegations as the civil complaint, they possessed the right to refuse to take the witness stand altogether—not merely to object to specific incriminatory questions. Petitioners asserted that the questions during deposition would necessarily revolve around the identical allegations, thereby tending to incriminate them.
• Answer Ex Abundanti Cautela and Lack of Joinder of Issues: Petitioners contended that the deposition notice required prior leave of court because no proper answer had been served; the answer they filed ex abundanti cautela could not be considered an answer under the Rules, as it was filed merely to forestall default while they pursued their challenge to the denial of their motion to dismiss. Consequently, the issues had not been joined, and Section 1 of Rule 23 did not authorize the taking of depositions without leave of court.

• Right Against Self-Incrimination: Respondents countered that the constitutional right against self-incrimination does not give a defendant in a civil case the right to refuse to testify entirely. They stressed that petitioners were being treated as ordinary witnesses who must appear, take the stand, and answer questions, and that the privilege could be invoked only when a particular question tended to incriminate them. The pendency of the criminal cases did not alter this rule.
• Answer Ex Abundanti Cautela: Respondents maintained that the answer ex abundanti cautela was a valid pleading that set forth petitioners’ defenses, effectively served as an answer, and joined the issues. Thus, respondents were entitled to take depositions without leave of court under Section 1, Rule 23.

• Right Against Self-Incrimination: Whether the taking of the oral deposition of petitioners Oscar Mapalo and Chito Rosete in the civil case would violate their right against self-incrimination, given the pendency of two criminal cases based on the identical set of facts.
• Propriety of Deposition Without Leave of Court: Whether leave of court was required to take the oral deposition, considering that petitioners’ answer was filed ex abundanti cautela and the issues had allegedly not been joined.

• Right Against Self-Incrimination: The right against self-incrimination under Section 17, Article III of the 1987 Constitution secures to every witness the right to refuse to answer a particular incriminatory question; it does not confer a right to disregard a subpoena, refuse to appear altogether, or decline to take the stand. This rule applies in all civil, criminal, and administrative proceedings. Only an accused in a criminal case occupies a different tier of protection and may altogether refuse to take the witness stand, as clarified in People v. Ayson. The exception—allowing a party who is not an accused to refuse to testify—has been recognized only in administrative cases that partake of a criminal nature or are analogous to a criminal proceeding, and extends to civil actions only when the suit is criminal in nature. The civil complaint for annulment, specific performance, and damages is a purely civil action that does not partake of a criminal proceeding. The mere pendency of two criminal cases based on the same facts does not convert the civil suit into a criminal proceeding or vest defendants with the broader right of an accused. Petitioners, as defendants in a purely civil action, may be compelled to appear and be deposed; they may invoke the privilege against self-incrimination only when a specific incriminating question is actually asked.
• Propriety of Deposition Without Leave of Court: Under Section 1 of Rule 23 of the 1997 Rules of Civil Procedure, a deposition may be taken without leave of court after an answer has been served. Petitioners filed an answer—albeit denominated ex abundanti cautela—which set forth their defenses. The phrase ex abundanti cautela means “out of abundant caution” and does not deprive the pleading of its character as an answer within the meaning of Rule 6, Section 4. The filing of the answer, even if styled ex abundanti cautela, served to join the issues because all parties had pleaded their respective theories and the terms of the dispute were plain. Accordingly, respondents were entitled to proceed with the deposition without prior leave of court.

• Scope of Right Against Self-Incrimination for Non-Accused — The constitutional right against self-incrimination, as enshrined in Section 17, Article III of the 1987 Constitution, protects a witness from being compelled to answer specific incriminatory questions; it does not grant a right to refuse to appear, to disregard a subpoena, or to decline to testify altogether. An ordinary witness—including a party in a purely civil action—must appear, be sworn, and answer questions, and may claim the privilege only when a particular question tending to incriminate the witness is propounded. Only an accused in a criminal case may completely refuse to take the witness stand. An exception has been recognized where a civil or administrative proceeding partakes of a criminal nature or is analogous to a criminal proceeding; in such cases, the party may also refuse to testify. The pendency of criminal cases arising from the same facts as the civil suit does not, by itself, render the civil suit criminal in nature.
• _Answer Ex Abundanti Cautela as a Valid Answer_ — An answer filed ex abundanti cautela (out of abundant caution) to prevent a declaration of default while a challenge to the denial of a motion to dismiss is pending is a valid answer under the Rules of Court. It is a pleading that sets forth defenses and serves to join the issues. Its designation does not diminish its legal effect: it satisfies the requirement of a served answer for purposes of taking depositions without leave of court under Section 1, Rule 23 of the 1997 Rules of Civil Procedure.

• “The right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether.” — Defines the timing and manner of invoking the privilege against self-incrimination for ordinary witnesses.
• “only an accused in a criminal case can refuse to take the witness stand. The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded.” — Clarifies the distinct tier of protection enjoyed by the accused in a criminal case and the general rule for other litigants.
• “It is likewise the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls.” — Explains when a civil action will trigger the broader protection.
• “Ex abundanti cautela means ‘out of abundant caution’ or ‘to be on the safe side.’ An answer ex abundanti cautela does not make their answer less of an answer.” — Directly rejects the argument that a precautionary answer is not a proper pleading.

• People v. Ayson, G.R. No. 85215, 7 July 1989, 175 SCRA 216 — Followed. This case distinguished the right of an accused in a criminal case to refuse to testify altogether from the right of an ordinary witness (including a party in a civil action) who must appear and may only refuse to answer incriminatory questions when asked.
• Cabal v. Kapunan, Jr., 116 Phil. 1361 (1962) and Pascual, Jr. v. Board of Medical Examiners, 138 Phil. 361 (1969) — Cited as cases where the Court recognized the exception that a party in an administrative proceeding that partakes of a criminal nature may refuse to take the stand.
• Galman v. Pamaran, G.R. Nos. L-71208-09 and L-71212-13, 30 August 1985, 138 SCRA 294 — Cited for the principle that it is the nature of the proceeding, not the character of the suit, that determines whether a party may altogether decline to testify.

• Section 17, Article III, 1987 Constitution — “No person shall be compelled to be a witness against himself.” Applied to define the scope of the right against self-incrimination, limiting it for civil defendants to the refusal to answer specific incriminating questions, and distinguishing the broader right of an accused in a criminal case to refuse to testify entirely.
• Section 1, Rule 23, 1997 Rules of Civil Procedure — Provides that after an answer has been served, a deposition may be taken without leave of court. Applied to hold that the answer ex abundanti cautela constituted an answer that was served, permitting the deposition without prior judicial approval.
• Section 4, Rule 6, 1997 Rules of Civil Procedure — Defines an answer as a pleading in which a defending party sets forth his defenses. Referred to in confirming that the precautionary answer was a proper answer.
• Section 3, Rule 9, 1997 Rules of Civil Procedure — Provides for the declaration of default upon failure to file an answer within the allowed time. Referred to in explaining the motivation behind the filing of an answer ex abundanti cautela.

ARTEMIO V. PANGANIBAN (Chief Justice, Chairperson), MA. ALICIA AUSTRIA-MARTINEZ (Acting Chairman, as Associate Justice Consuelo Ynares-Santiago was on leave), and ROMEO J. CALLEJO, SR. (Associate Justice) concurred.