G.R. No. 214054, August 05, 2015 - NG MENG TAM, Petitioner, v.

CHINA
BANKING CORPORATION, Respondent.

THIRD DIVISION

G.R. No. 214054, August 05, 2015

NG MENG TAM, Petitioner, v. CHINA BANKING

CORPORATION, Respondent.

DECISION

VILLARAMA, JR., J.:

Before this Court is a direct recourse from the Regional Trial Court (RTC) via
petition1 for review on the question of whether Section 52 of the Judicial
Affidavit Rule (JAR) applies to hostile or adverse witnesses. The petition seeks
to annul and set aside the May 28, 20143 and August 27, 20144 Orders of the
RTC, Branch 139, Makati City in Civil Case No. 08-1028.

This case stemmed from a collection suit filed by China Banking Corporation
(China Bank) against Ever Electrical Manufacturing Company Inc. (Ever), the
heirs of Go Tong, Vicente Go, George Go and petitioner Ng Meng Tam
sometime in December 2008. China Bank alleged that it granted Ever a loan
amounting to P5,532,331.63. The loan was allegedly backed by two surety
agreements executed by Vicente, George and petitioner in its favor, each for
P5,000,000.00, and dated December 9, 1993 and May 3, 1995,
respectively. When Ever defaulted in its payment, China Bank sent demand
letters collectively addressed to George, Vicente and petitioner. The demands
were unanswered. China Bank filed the complaint for collection docketed as
Civil Case No. 08-1028, which was raffled off to RTC Branch 62, Makati City.

In his Answer, petitioner alleged that the surety agreements were null and
void since these were executed before the loan was granted in 2004. Petitioner
posited that the surety agreements were contracts of adhesion to be construed
against the entity which drafted the same. Petitioner also alleged that he did
not receive any demand letter.

In the course of the proceedings, petitioner moved that his affirmative

defenses be heard by the RTC on the ground that the suit is barred by the
statute of limitations and laches.5 The motion was denied by the court.6 On
appeal, the Court of Appeals (CA) in its December 22, 2010 Decision7 ruled
that a preliminary hearing was proper pursuant to Section 6,8 Rule 16 of the
Rules of Court due to the grounds cited by petitioner. There being no appeal,
the decision became final and executory on August 28, 2011.9 redarclaw

On March 15, 2011, petitioner served interrogatories to parties10 pursuant to

Sections 111 and 6,12 Rule 25 of the Rules of Court to China Bank and required
Mr. George C. Yap, Account Officer of the Account Management Group, to
answer.

On June 22, 2011, George Yap executed his answers to interrogatories to

parties.13
reda rclaw
In the meantime, having failed mediation and judicial dispute resolution, Civil
Case No. 08-1028 was re-raffled off to RTC Branch 139, Makati City.

Petitioner again moved for the hearing of his affirmative defenses. Because he
found Yap’s answers to the interrogatories to parties evasive and not
responsive, petitioner applied for the issuance of a subpoena duces
tecum and ad testificandum against George Yap pursuant to Section 6,14 Rule
25 of the Revised Rules of Court.

On April 29, 2014, when the case was called for the presentation of George
Yap as a witness, China Bank objected citing Section 5 of the JAR. China Bank
said that Yap cannot be compelled to testify in court because petitioner did not
obtain and present George Yap’s judicial affidavit. The RTC required the
parties to submit their motions on the issue of whether the preparation of a
judicial affidavit by George Yap as an adverse or hostile witness is an
exception to the judicial affidavit rule.15 reda rc law

Petitioner contended that Section 5 does not apply to Yap because it

specifically excludes adverse party witnesses and hostile witnesses from its
application. Petitioner insists that Yap needed to be called to the stand so that
he may be qualified as a hostile witness pursuant to the Rules of Court.

China Bank, on the other hand, stated that petitioner’s characterization of

Yap’s answers to the interrogatories to parties as ambiguous and evasive is a
declaration of what type of witness Yap is. It theorizes that the interrogatories
to parties answered by Yap serve as the judicial affidavit and there is no need
for Yap to be qualified as a hostile witness.

In its May 28, 2014 Order, the RTC denied for lack of merit petitioner’s motion
to examine Yap without executing a judicial affidavit. The RTC in interpreting
Section 5 of the JAR stated: Lawli braryofCR Alaw

x x x The aforementioned provision, which allows the requesting party to avail

himself of the provisions of Rule 21 of the Rules of Court finds applicability to:
(a) a government employee or official, or the requested witness, who is
neither the witness of the adverse party nor a hostile witness and (b) who
unjustifiably declines to execute a judicial affidavit or refuses without just
cause to make the relevant books, documents, or other things under his
control available for copying, authentication, and eventual production in court.

In the case at bar, witness George Yap is being utilized as an adverse witness
for the [petitioner]. Moreover, there was no showing that he unjustifiably
declines to execute a judicial affidavit. In fact, it was [China Bank]’s counsel
who insisted that said witness’ judicial affidavit be taken. Thus, Section 5 of
the [JAR] which [petitioner] invoked to exempt him from the Rule finds no
application. Unless there is contrary ruling on the matter by the Supreme
Court, this court has no choice but to implement the rule as written.

On this note, this Court also finds no merit on the contention of [China Bank]
that the answer to the written interrogatories by witness George Yap already
constitutes his judicial affidavit. Inasmuch as the Court strictly implemented
the [JAR] on the part of [petitioner], so shall it rule in the same manner on the
part of [China Bank]. As correctly pointed out by [petitioner], the said answer
to interrogatories does not comply with Section 3 of the [JAR] which provides
for the contents of the judicial affidavit.16

In essence, the RTC ruled that Section 5 did not apply to Yap since he was an
adverse witness and he did not unjustifiably decline to execute a judicial
affidavit. It stated:
Lawlib raryofCRAlaw
In view of the foregoing, the motion of the [petitioner] that witness George
Yap be examined without executing a Judicial Affidavit is hereby DENIED FOR
LACK OF MERIT.17

Petitioner moved for reconsideration but it was denied by the RTC in its August
27, 2014 Order.18 The RTC reiterated its position and stated: Lawlib raryofCR Alaw

It must be pointed out that the [petitioner] [was] the [one] who invoked the
provisions of Section 5 of the [JAR] to compel the attendance of witness
George Yap and as such, it is their duty to show the applicability of the said
provisions to the case at bar. As stated in the challenged Order, Section 5 of
the [JAR] finds applicability to: (a) a government employee or official, or the
requested witness, who is neither the witness of the adverse party nor a
hostile witness and (b) who unjustifiably declines to execute a judicial affidavit
or refuses without just cause to make the relevant books, documents, or other
things under his control available for copying, authentication, and eventual
production in court. In the case at bar, [petitioner] [does] not deny that
witness George Yap is to be utilized as [his] adverse witness. On this score
alone, it is clear that the provisions invoked do not apply.19

The RTC stressed that Section 5 of the JAR required the requested witness’
refusal to be unjustifiable. It stated:
Lawlibra ryofCRAlaw

x x x the [JAR] requires that the refusal must be unjustifiable and without just
cause. It must be pointed out that [China Bank]’s previous motions to quash
the subpoena was grounded on the claim that having already submitted to this
court his sworn written interrogatories, his being compelled to testify would be
unreasonable, oppressive and pure harassment. Thus, witness’ refusal to
testify cannot be considered unjustifiable since he raised valid grounds.20

Hence, this petition.

Petitioner contends that the RTC committed a grave error when it interpreted
Section 5 to include adverse party and hostile witnesses. Based on the
wording of Section 5, adverse party and hostile witnesses are clearly excluded.

China Bank asserts that Yap neither refused unjustifiably nor without just
cause refused to a judicial affidavit. It cited the RTC’s August 27, 2014 Order
where the court said that Yap had answered the interrogatories and to compel
him to testify in open court would be “unreasonable, oppressive and pure
harassment.” Moreover, it stated that based on the language used by Section
2 of the JAR the filing of judicial affidavits is mandatory.

The petition is anchored on the following arguments: Lawl ibra ryofCRAlaw

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED

SEC. 5 OF THE [JAR] CONTRARY TO ITS WORDINGS.

II

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED

SEC. 5 [OF THE JAR] CONTRARY TO ITS PRACTICAL INTENTION AND COMMON
SENSE.

III

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT EFFECTIVELY

DISREGARDED THE RELEVANT RULES ON MODE OF DISCOVERY WHICH
GOVERN THE PRESENTATION OF ADVERSE WITNESSES.

IV

ON A POLICY LEVEL AND IN THE EVENT RTC BR. 139-MAKATI’S

INTERPRETATION AND APPLICATION OF SEC. 5 OF THE [JAR] IS CORRECT
(I.E., THAT OPPOSING PARTY WHO INTENDS TO PRESENT ADVERSE OR
HOSTILE WITNESS MUST GET AND SUBMIT THAT WITNESS’ JUDICIAL
AFFIDAVIT NO MATTER WHAT) IT IS HUMBLY SUBMITTED, WITH THE UTMOST
INDULGENCE OF THE HONORABLE SUPREME COURT, THAT THE SAME RULE BE
IMPROVED OR AMENDED BY PROVIDING SANCTIONS IN THE EVENT THE
ADVERSE OR HOSTILE WITNESS REFUSES TO ANSWER OR EXECUTE JUDICIAL
AFFIDAVIT AS REQUIRED BY THE OPPOSING PARTY.21

We grant the petition.

THE JUDICIAL AFFIDAVIT RULE

APPLIES TO PENDING CASES

On September 4, 2012, the JAR was promulgated to address case congestion

and delays in courts. To this end, it seeks to reduce the time needed to take
witnesses’ testimonies.22 The JAR took effect on January 1, 2013 and would
also apply to pending cases pursuant to Section 12 to wit: Lawlib raryofCR Alaw

Sec. 12. Effectivity. – This rule shall take effect on January 1, 2013 following
its publication in two newspapers of general circulation not later than
September 15, 2012. It shall also apply to existing cases. (Emphasis
supplied)

The Court En Banc gave public prosecutors in first and second level courts one
year of modified compliance.23 The JAR thus took full effect on January 1,
2014.

Here, parties were presenting their evidence for the RTC’s consideration when
the JAR took effect. Therefore, pursuant to Section 12 the JAR applies to the
present collection suit.

SECTION 5 OF THE JAR DOES NOT

APPLY TO ADVERSE PARTY WITNESSES

The JAR primarily affects the manner by which evidence is presented in

court. Section 2(a) of the JAR provides that judicial affidavits are mandatorily
filed by parties to a case except in small claims cases. These judicial affidavits
take the place of direct testimony in court. It provides: Lawlib ra ryofCRAlaw

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct

testimonies. – (a) The parties shall file with the court and serve on the
adverse party, personally or by licensed courier service, not later than five
days before pre-trial or preliminary conference or the scheduled hearing with
respect to motions and incidents, the following: Lawl ibra ryofCRAlaw

(1) The judicial affidavits of their witnesses, which shall take the place of such
witnesses’ direct testimonies; and

(2) The parties’ documentary or object evidence, if any, which shall be

attached to the judicial affidavits and marked as Exhibits A, B, C, and so on in
the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on
in the case of the respondent or the defendant.
xxxx

Section 324 of the JAR enumerates the content of a judicial affidavit.

Under Section 10,25 parties are to be penalized if they do not conform to the
provisions of the JAR. Parties are however allowed to resort to the application
of a subpoena pursuant to Rule 21 of the Rules of Court in Section 5 of the JAR
in certain situations. Section 5 provides: Law lib raryofCRAlaw

Sec. 5. Subpoena. – If the government employee or official, or the requested

witness, who is neither the witness of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial affidavit or refuses without just
cause to make the relevant books, documents, or other things under his
control available for copying, authentication, and eventual production in court,
the requesting party may avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules of Court. The rules
governing the issuance of a subpoena to the witness in this case shall be the
same as when taking his deposition except that the taking of a judicial affidavit
shal1 be understood to be ex parte.

While we agree with the RTC that Section 5 has no application to Yap as he
was presented as a hostile witness we cannot agree that there is need for a
finding that witness unjustifiably refused to execute a judicial affidavit.

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. If this person either (a) unjustifiably
declines to execute a judicial affidavit or (b) refuses without just cause to
make the relevant documents available to the other party and its presentation
to court, Section 5 allows the requesting party to avail of issuance of
subpoena ad testificandum or duces tecum under Rule 21 of the Rules of
Court. Thus, adverse party witnesses and hostile witnesses being excluded
they are not covered by Section 5. Expressio unius est exclusion alterius: the
express mention of one person, thing, or consequence implies the exclusion of
all others.26
reda rclaw

Here, Yap is a requested witness who is the adverse party’s

witness. Regardless of whether he unjustifiably declines to execute a judicial
affidavit or refuses without just cause to present the documents, Section 5
cannot be made to apply to him for the reason that he is included in a group of
individuals expressly exempt from the provision’s application.

The situation created before us begs the question: if the requested witness is
the adverse party’s witness or a hostile witness, what procedure should be
followed?

The JAR being silent on this point, we turn to the provisions governing the
rules on evidence covering hostile witnesses specially Section 12, Rule 132 of
the Rules of Court which provides: Law lib raryofCRAlaw

SEC. 12. Party may not impeach his own witness. – Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the

court upon adequate showing of his adverse interest, unjustified reluctance to
testify, or his having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse

party, may be impeached by the party presenting him in all respects as if he
had been called by the adverse party, except by evidence of his bad character.
He may also be impeached and cross-examined by the adverse party, but such
cross-examination must only be on the subject matter of his examination-in-
chief.

Before a party may be qualified under Section 12, Rule 132 of the Rules of
Court, the party presenting the adverse party witness must comply with
Section 6, Rule 25 of the Rules of Court which provides: Lawl i braryofCR Alaw

SEC. 6. Effect of failure to serve written interrogatories. – Unless thereafter

allowed by the court for good cause shown and to prevent a failure of justice,
a party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending
appeal.

In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court stated that “in
civil cases, the procedure of calling the adverse party to the witness stand is
not allowed, unless written interrogatories are first served upon the
latter.”28 There petitioners Spouses Afulugencia sought the issuance of
a subpoena duces tecum and ad testificandum to compel the officers of the
bank to testify and bring documents pertaining to the extrajudicial foreclosure
and sale of a certain parcel of land. Metrobank moved to quash the issuance
of the subpoenas on the ground of non-compliance with Section 6, Rule 25 of
the Rules of Court. In quashing the issuance of the subpoena, the Court
reminded litigants that the depositions are a mechanism by which fishing
expeditions and delays may be avoided. Further written interrogatories aid the
court in limiting harassment and to focus on what is essential to a case. The
Court stated:LawlibraryofCR Alaw

One of the purposes of the above rule is to prevent fishing expeditions and
needless delays; it is there to maintain order and facilitate the conduct of
trial. It will be presumed that a party who does not serve written
interrogatories on the adverse party beforehand will most likely be unable to
elicit facts useful to its case if it later opts to call the adverse party to the
witness stand as its witness. Instead, the process could be treated as a fishing
expedition or an attempt at delaying the proceedings; it produces no
significant result that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s
testimony, compelling the adverse party to take the witness stand may result
in the calling party damaging its own case. Otherwise stated, if a party cannot
elicit facts or information useful to its case through the facility of written
interrogatories or other mode of discovery, then the calling of the adverse
party to the witness stand could only serve to weaken its own case as a result
of the calling party’s being bound by the adverse party’s testimony, which may
only be worthless and instead detrimental to the calling party’s cause.

Another reason for the rule is that by requiring prior written interrogatories,
the court may limit the inquiry to what is relevant, and thus prevent the calling
party from straying or harassing the adverse party when it takes the latter to
the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises
or harassment; it likewise prevents the calling party from conducting a fishing
expedition or bungling its own case. Using its own judgment and discretion,
the court can hold its own in resolving a dispute, and need not bear witness to
the parties perpetrating unfair court practices such as fishing for evidence,
badgering, or altogether ruining their own cases. Ultimately, such unnecessary
processes can only constitute a waste of the court’s precious time, if not
pointless entertainment.29 (Citation omitted)
In this case, parties, with the approval of the Court, furnished and answered
interrogatories to parties pursuant to Rule 25 of the Rules of Court. They
therefore complied with Section 6 of Rule 25 of the Rules of Court. Before the
present controversy arose, the RTC had already issued subpoenas for Yap to
testify and produce documents. He was called to the witness stand when
China Bank interposed its objection for non-compliance with Section 5 of the
JAR. Having established that Yap, as an adverse party witness, is not within
Section 5 of the JAR’s scope, the rules in presentation of adverse party
witnesses as provided for under the Rules of Court shall apply. In keeping
with this Court’s decision in Afulugencia, there is no reason for the RTC not to
proceed with the presentation of Yap as a witness.

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.

WHEREFORE, the petition is GRANTED. The May 28, 2014 and August 27,
2014 Orders of the Regional Trial Court, Branch 139, Makati City are
hereby ANNULLED and SET ASIDE.

No pronouncement as to costs.

SO ORDERED. cralawlawlibra ry

Velasco, Jr., (Chairperson), Peralta, Perez,* and Jardeleza, JJ., concur.

Endnotes:

*
Designated Acting Member in lieu of Associate Justice Bienvenido L. Reyes,
per Special Order No. 2084 dated June 29, 2015.

1
Under Rule 45 of the Revised Rules of Court. Rollo, pp. 3-21.

2
JUDICIAL AFFIDAVIT RULE, Section 5 provides: Lawli bra ryofCRAlaw

Sec. 5. Subpoena. - If the government employee or official, or the requested

witness, who is neither the witness of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial affidavit or refuses without just
cause to make the relevant books, documents, or other things under his
control available for copying, authentication, and eventual production in court,
the requesting party may avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules of Court. The rules
governing the issuance of a subpoena to the witness in this case shall be the
same as when taking his deposition except that the taking of a judicial affidavit
shal1 be understood to be ex parte.

Rollo, pp. 22-A to 24. Signed by Presiding Judge Benjamin T. Pozon.

3

4
Id. at 25-27.

5
Id. at 65.

6
RTC Order dated January 4, 2010, id. at 66.

7
Rollo, pp. 63-75. Penned by Associate Justice Mariflor P. Punzalan Castillo
with Associate Justices Josefina Guevara-Salonga and Franchito N. Diamante
concurring.
8
Rules of Court, Rule 16, Section 6 provides: LawlibraryofCRAlaw

SEC. 6. Pleading grounds as affirmative defenses. – If no motion to dismiss

has been filed, any of the grounds for dismissal provided for in this Rule may
be pleaded as an affirmative defense in the answer and, in the discretion of
the court, a preliminary hearing may be had thereon as if a motion to dismiss
had been filed.

Rollo, p. 76.
9

10
Id. at 77-79.

11
RULES OF COURT, Rule 25, Section 1 provides: Lawli bra ryofCRAlaw

SECTION 1. Interrogatories to parties; service thereof. – Under the same

conditions specified in section 1 of Rule 23, any party desiring to elicit material
and relevant facts from any adverse parties shall file and serve upon the latter
written interrogatories to be answered by the party served or, if the party
served is a public or private corporation or a partnership or association, by any
officer thereof competent to testify in its behalf.

12
Id., Section 6 provides:
Lawlib ra ryofCRAlaw

SEC. 6. Effect of failure to serve written interrogatories. – Unless thereafter

allowed by the court for good cause shown and to prevent a failure of justice,
a party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending
appeal.

13
Rollo, pp. 80-85. Sent via registered mail on June 23, 2011.

14
Supra note 12.

15
Rollo, pp. 86-87.

16
Id. at 23.

17
Id.

18
Supra note 4.

19
Id. at 26.

20
Id.

21
Id. at 9-10.

22
JUDICIAL AFFIDAVIT RULE, 4th Whereas Clause provides: Lawli bra ryofCRAlaw

xxxx

Whereas, in order to reduce the time needed for completing the testimonies of
witnesses in cases under litigation, on February 21, 2012 the Supreme Court
approved for piloting by trial courts in Quezon City the compulsory use of
judicial affidavits in place of the direct testimonies of witnesses;

xxxx

23
Resolution dated January 8, 2013, rollo (A.M. No. 12-8-8-SC), pp. 37-39.

24
JUDICIAL AFFIDAVIT RULE, Section 3 provides: Lawlib raryofCR Alaw
Sec. 3. Contents of Judicial Affidavit. – A judicial affidavit shall be prepared in
the language known to the witness and, if not in English or Filipino,
accompanied by a translation in English or Filipino, and shall contain the
following: Lawli bra ryofCRAlaw

(a) The name, age, residence or business address, and occupation of the
witness;

(b) The name and address of the lawyer who conducts or supervises the
examination of the witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face criminal liability
for false testimony or perjury;

(d) Questions asked of the witness and his corresponding answers,

consecutively numbered, that: Lawlibra ryofCRAlaw

(1) Show the circumstances under which the witness acquired the facts upon
which he testifies;
(2) Elicit from him those facts which are relevant to the issues that the case
presents; and
(3) Identify the attached documentary and object evidence and establish their
authenticity in accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or
an officer who is authorized by law to administer the same.

25
Id., Section 10 provides: Lawli bra ryof CRAlaw

Sec. 10. Effect of non-compliance with the Judicial Affidavit Rule. – (a) A party
who fails to submit the required judicial affidavits and exhibits on time shall be
deemed to have waived their submission. The court may, however, allow only
once the late submission of the same provided, the delay is for a valid reason,
would not unduly prejudice the opposing party, and the defaulting party pays a
fine of not less than Pl,000.00 nor more than P5,000.00, at the discretion of
the court.

(b) The court shall not consider the affidavit of any witness who fails to appear
at the scheduled hearing of the case as required. Counsel who fails to appear
without valid cause despite notice shall be deemed to have waived his client's
right to confront by cross-examination the witnesses there present.

(c) The court shall not admit as evidence judicial affidavits that do not conform
to the content requirements of Section 3 and the attestation requirement of
Section 4 above. The court may, however, allow only once the subsequent
submission of the compliant replacement affidavits before the hearing or trial
provided the delay is for a valid reason and would not unduly prejudice the
opposing party and provided further, that public or private counsel responsible
for their preparation and submission pays a fine of not less than P1,000.00 nor
more than P5,000.00, at the discretion of the court.

26
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, 649.

27
G.R. No. 185145, February 5, 2014, 715 SCRA 399.

28
Id. at 412.
29
Id. at 413-414.