Sales vs. Sabino

A deposition may be used in evidence when the witness is out of the Philippines, as provided under Section 4, Rule 23 of the Rules of Court, and the proponent need only present satisfactory evidence of the witness's unavailability. The act of cross-examining a deponent during the taking of a deposition does not, without more, constitute a waiver of the right to object to the deposition's admissibility as evidence in the trial proper, since the opportunity for cross-examination must normally be accorded a party at the time the testimonial evidence is actually presented against him during trial.

The case arose from a civil action for damages filed by respondent Cyril A. Sabino against petitioner Jowel Sales and others, following a vehicular accident that caused the death of respondent's son, Elbert. The dispute concerned the admissibility of a deposition taken from a witness, Buaneres Corral, who had allegedly left the Philippines. The procedural context involves the Rules of Court provisions on depositions, specifically Section 4, Rule 23, which enumerates the exceptions under which a deposition may be used at trial in lieu of the deponent's actual testimony in open court.

On February 20, 1995, respondent Cyril A. Sabino filed an amended complaint for damages in the Regional Trial Court (RTC) at Pasig City against, among others, petitioner Jowel Sales, the driver of the vehicle involved in the accident that caused the death of respondent's son, Elbert. Before any responsive pleading could be filed, respondent notified the defendants that she would take the deposition of one Buaneres Corral before the Clerk of Court of RTC-Pasig City.

On December 27, 1995, and resumed on January 3, 1996, the deposition on oral examination of Buaneres Corral was taken before the Clerk of Court of Pasig, in the presence and with the active participation of petitioner's counsel, Atty. Roldan Villacorta, who even lengthily cross-examined the deponent. In the course of trial, respondent had the deposition of Buaneres Corral marked as her Exhibits "DD" and "EE", with submarkings. Upon conclusion of her evidentiary presentation, respondent made a Formal Offer of Exhibits, among which were Exhibits "DD" and "EE". Also offered in evidence as Exhibit "BB" was a certification from the Bureau of Immigration attesting to the May 28, 1996 departure for abroad of Buaneres Corral via Flight No. PR 658.

Petitioner opposed the admission of Exhibits "DD" and "EE" and asked that they be expunged from the records on the ground that the jurisdictional requirements for their admission under Section 4, Rule 23 of the Rules of Court were not complied with. He also downplayed the evidentiary value of Exhibit "BB". In its order of February 3, 1997, the trial court admitted, among other evidence, respondent's Exhibits "DD", "EE" and "BB". With his motion for reconsideration denied by the court in its subsequent order of March 25, 1997, petitioner went on certiorari to the Court of Appeals in CA-G.R. SP No. 44078, imputing grave abuse of discretion on the part of the trial court in admitting in evidence the deposition in question.

The Court of Appeals upheld the trial court and effectively denied due course to and dismissed petitioner's recourse, explaining that petitioner's active participation, through counsel, during the taking of the subject deposition and adopting it as his own exhibits, estopped him from assailing the admissibility thereof as part of respondent's evidence. His motion for reconsideration having been denied, petitioner filed the instant petition with the Supreme Court.

• Non-Compliance with Section 4, Rule 23: Petitioner argued that none of the conditions under Section 4, Rule 23 of the Rules of Court existed to justify the admission of the deposition, and that the certification from the Bureau of Immigration merely proved the fact of Corral having left the country on the date mentioned, but did not establish that he had not returned since then and was unavailable to be present in court to personally testify.
• No Waiver of Objection: Petitioner argued that his act of cross-examining the deponent during the taking of the deposition did not waive any and all objections in connection therewith, and that he was not estopped from challenging the admissibility of the deposition.

N/A — The decision does not recount the respondent's specific arguments in detail beyond the procedural history and the Court's reasoning.

• Admissibility of Deposition: Whether the requirements of Section 4, Rule 23 (previously Section 3, Rule 24) of the Revised Rules of Court were satisfied by the respondent when she presented a certification attesting to the fact that the deponent had left the country but was silent as to whether or not the deponent was in the Philippines at the time his deposition was offered in evidence.
• Waiver by Cross-Examination: Whether the petitioner, in cross-examining the deponent during the taking of his deposition, waived any and all objections in connection therewith.

• Admissibility of Deposition: Yes. The trial court's factual finding that deponent Buaneres Corral was abroad when the offer of his deposition was made was adequately substantiated by the certification from the Bureau of Immigration (Exhibit "BB"), which provided the evidentiary support for the witness's unavailability under Section 4, Rule 23 of the Rules of Court.
• Waiver by Cross-Examination: No. The act of cross-examining the deponent during the taking of the deposition cannot, without more, be considered a waiver of the right to object to its admissibility as evidence in the trial proper, since the opportunity for cross-examination must normally be accorded a party at the time the testimonial evidence is actually presented against him during trial.

• Admissibility of Deposition: The Court explained that while depositions may be used as evidence in court proceedings, they are generally not meant to be a substitute for the actual testimony in open court of a party or witness; a deposition is not to be used when the deponent is at hand. However, depositions may be used without the deponent being called to the witness stand by the proponent, provided the existence of certain conditions is first satisfactorily established. Five exceptions for the admissibility of a deposition are listed in Section 4, Rule 23 of the Rules of Court, among which is when the witness is out of the Philippines. The trial court had determined that deponent Buaneres Corral was abroad when the offer of his deposition was made, and this factual finding of absence or unavailability of the witness deserves respect, having been adequately substantiated by the Bureau of Immigration certification. The Court noted that it is customary for courts to accept statements of parties as to the unavailability of a witness as a predicate to the use of depositions. Had the deponent indeed returned to the Philippines subsequent to his departure, petitioner could have presented evidence to show that such was the case; however, petitioner did not even assert the return as a fact, only offering it as a possibility since no contrary proof had been adduced.

• Waiver by Cross-Examination: The Court stated that the inadmissibility of testimony taken by deposition is anchored on the ground that such testimony is hearsay, i.e., the party against whom it is offered has no opportunity to cross-examine the deponent at the time his testimony is offered. As jurisprudence teaches, it matters not that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time the testimonial evidence is actually presented against him during the trial or hearing. The act of cross-examining the deponent during the taking of the deposition cannot, without more, be considered a waiver of the right to object to its admissibility as evidence in the trial proper. In participating in the taking of the deposition but objecting to its admissibility in court as evidence, petitioner did not assume inconsistent positions and is not estopped from challenging the admissibility of the deposition. Section 29, Rule 23 of the Rules of Court lends support to this conclusion, providing that while errors and irregularities in depositions as to notice, qualifications of the officer conducting the deposition, and manner of taking the deposition are deemed waived if not objected to before or during the taking of the deposition, objections to the competency of a witness or the competency, relevancy, or materiality of testimony may be made for the first time at the trial and need not be made at the time of the taking of the deposition, unless they could be obviated at that point. The Court further noted that certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment, and for this singular reason alone, the appellate court could have already dismissed petitioner's invocation of its certiorari jurisdiction.

• Use of Depositions Under Section 4, Rule 23 — A deposition may be used at trial against any party who was present or represented at the taking of the deposition or who had due notice thereof, under any of the following circumstances: (1) the witness is dead; (2) the witness resides at a distance more than one hundred kilometers from the place of trial or hearing, or is out of the Philippines, unless his absence was procured by the party offering the deposition; (3) the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; (4) the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, exceptional circumstances exist that warrant allowing the deposition to be used. In this case, the Court applied the exception for a witness who is out of the Philippines, finding that the Bureau of Immigration certification sufficiently established the deponent's departure from the country and that the petitioner failed to present evidence of his return.

• Waiver of Objections to Deposition Admissibility — Under Section 29, Rule 23 of the Rules of Court, while errors and irregularities in depositions as to notice, qualifications of the officer conducting the deposition, and manner of taking the deposition are deemed waived if not objected to before or during the taking of the deposition, objections to the competency of a witness or the competency, relevancy, or materiality of testimony may be made for the first time at the trial and need not be made at the time of the taking of the deposition, unless they could be obviated at that point. The Court applied this doctrine to hold that the petitioner's cross-examination of the deponent during the taking of the deposition did not constitute a waiver of his right to object to its admissibility at trial.

• Depositions as Hearsay — The inadmissibility of testimony taken by deposition is anchored on the ground that such testimony is hearsay, i.e., the party against whom it is offered has no opportunity to cross-examine the deponent at the time his testimony is offered. It matters not that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time the testimonial evidence is actually presented against him during the trial or hearing.

• "While depositions may be used as evidence in court proceedings, they are generally not meant to be a substitute for the actual testimony in open court of a party or witness. Stated a bit differently, a deposition is not to be used when the deponent is at hand." — This passage articulates the general rule that depositions are not substitutes for live testimony and establishes the context for the exceptions under Section 4, Rule 23.

• "The trial court had determined that deponent Bueneres Corral was abroad when the offer of his deposition was made. This factual finding of absence or unavailability of witness to testify deserves respect, having been adequately substantiated. As it were, the certification by the Bureau of Immigration – Exh. 'BB'- provides that evidentiary support." — This passage states the Court's ruling on the first issue, affirming the trial court's factual finding of the witness's unavailability based on the immigration certification.

• "In fine, the act of cross-examining the deponent during the taking of the deposition cannot, without more, be considered a waiver of the right to object to its admissibility as evidence in the trial proper. In participating, therefore, in the taking of the deposition, but objecting to its admissibility in court as evidence, petitioner did not assume inconsistent positions. He is not, thus, estopped from challenging the admissibility of the deposition just because he participated in the taking thereof." — This passage states the Court's ruling on the second issue, holding that cross-examining a deponent does not waive the right to object to the deposition's admissibility at trial.

• "While perhaps a bit anti-climactic to state at this point, certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment." — This passage notes the procedural rule that certiorari is not the proper remedy to challenge an order admitting or rejecting a deposition, the proper remedy being an appeal from the final judgment.

• Dasmarinas Garments, Inc. vs. Reyes, 225 SCRA 622 [1993] — Cited for the proposition that the opportunity for cross-examination must be accorded a party at the time the testimonial evidence is actually presented against him during the trial or hearing, and that it matters not that opportunity for cross-examination was afforded during the taking of the deposition.
• Dearing vs. Fredwilson & Co., Inc., 98 SCRA 758 [1980] — Cited for the procedural rule that certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment.

• Section 4, Rule 23, Rules of Court — The provision enumerates the exceptions under which a deposition may be used at trial, including when the witness is out of the Philippines. The Court applied this provision to uphold the admission of the deposition based on the Bureau of Immigration certification establishing the deponent's departure from the country.
• Section 29, Rule 23, Rules of Court — The provision states that while errors and irregularities in depositions as to notice, qualifications of the officer conducting the deposition, and manner of taking the deposition are deemed waived if not objected to before or during the taking of the deposition, objections to the competency of a witness or the competency, relevancy, or materiality of testimony may be made for the first time at the trial. The Court applied this provision to hold that the petitioner did not waive his right to object to the deposition's admissibility by cross-examining the deponent.
• Section 1, Rule 45, Rules of Court — The provision governing petitions for review on certiorari to the Supreme Court, under which the instant petition was filed.

• Associate Justice Artemio V. Panganiban (Chairman, Third Division)
• Associate Justice Angelina Sandoval-Gutierrez
• Associate Justice Renato C. Corona
• Associate Justice Conchita Carpio Morales

N/A — No dissenting opinions were noted in the decision.