Fulgado v. CA

UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW Evidence
E2024 Professor Jacboa

Fulgado v. CA
G.R. No. 61570 – February 12, 1990
Third division | Fernan, C.J.
Topic: Presentation of Evidence; Order of Examination [Rule 132, Sections 4 to 10; Rule 115, Section 1(d)]
Parties:
PETITIONERS RESPONDENTS
Ruperto Fulgado, substituted by his heirs: Court of Appeals
• Juliana Fulgado Rufino Custudio
• Jose Fulgado Simplicia Custudio
• Maximo Fulgado Arsenio Piguing
• Pacita Fulgado Ismael Porciuncula
• Severo Fulgado Dominga Macarulay
Case Summary:
Fulgado, “a man approaching the twilight of his life,” filed an action in the CFI against respondents for the
annulment of certain contracts of sale and partition with accounting. Respondents failed to appear on time for the
pre-trial conference and were declared in default, and Fulgado was allowed to present his evidence ex parte,
which included his own testimony and the testimony of his witness, Jose Fulgado. The CFI ruled in favor of
Fulgado, but the CA reversed this and found that respondents were deprived of their day in court by the unjust
denial of their motion to lift the order of default. It remanded the case to the CFI for trial on the merits and to
grant the respondents the opportunity to present their evidence.
Before the scheduled hearing for the case, Fulgado died and was substituted by his children. Jose had also already
migrated to the US. When the case was finally heard, respondents moved to strike out the testimonies of Fulgado
and Jose, because they cannot be cross-examined by the respondents. The CFI granted this motion and dismissed
the case against respondents, and the CA affirmed this decision.
W/N the exclusion of the testimonies of Fulgado and Jose was proper—NO.
Respondents had enough opportunity to cross-examine Fulgado before his death and Jose before his migration.
When the CA remanded the case to the CFI, respondents should have proceeded with the cross-examination of
the two Fulgados, which was a right previously withheld from them when they were considered in default. Despite
Fulgado’s old age and Jose’s imminent migration, respondents did not move swiftly and decisively. The acts of
respondents constitute a waiver and a forfeiture of their right to cross-examination.
Doctrine:
The principle of requiring a testing of testimonial statements by cross-examination has been understood as
merely an opportunity to exercise the right to cross-examine, if desired. It does not necessarily equate to an
actual cross-examination. The intention to utilize the right, being personal and waivable, must be expressed.
Silence or failure to assert it on time amounts to a renunciation.
FACTS OF THE CASE

Fulgado, “a man approaching the twilight of his life,” filed an action in the CFI against respondents for the
annulment of certain contracts of sale and partition with accounting. Respondents filed their answer to the
complaint with special and affirmative defenses and a counterclaim. A pre-trial conference was set after several
deferments, but respondents and their counsel failed to appear on time and were declared in default. Fulgado was
allowed to present his evidence ex parte before the Deputy Clerk of Court.
Respondents immediately filed a motion to lift the order of default on the same day it was issued. The trial court
denied the motion, as well as their MFR. Respondents filed a petition for relief from the default order, which was
again denied. The CFI rendered a decision in favor of Fulgado.
On appeal to the CA, the court found that respondents were deprived of their day in court by the unjust denial of
their motion to lift the order of default. It remanded the case to the CFI for trial on the merits and to grant the
respondents the opportunity to present their evidence. More than a year after the finality of the CA decision,
respondents’ counsel moved that the CFI “include the case in any date of the August and September calendar of
the Court, at the usual hour in the morning.” The case was set for hearing on September, but the presiding judge
was on official leave and the hearing was postponed to January and February of the next year.
In the meantime, Fulgado died and was substituted by his children. Fuglado’s witness, Jose, had earlier migrated
to the US in September 1974. When the case was heard, the two witnesses presented (Fulgado and Jose) cannot
be cross-examined by the defense because the former had died and the latter was in the US. Hence, respondents’
UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW Evidence
E2024 Professor Jacboa
counsel moved to strike out their testimonies on the ground that they were deprived of the right to cross-examine
said witnesses. The court granted this motion and issued an order dismissing the case against respondents.
On appeal again to the CA, the court affirmed the CFI ruling. Petitioners now question the affirmance before the
SC in the instant petition for review.
ISSUE/S & RATIO/S

W/N the exclusion of the testimonies of Fulgado and Jose was proper—NO.
• While the right of a party to cross-examination is a fundamental right which is part of due process, the
right is a personal one which may be waived, expressly or impliedly, by conduct amounting to a
renunciation of the right of cross-examination. (Savory Luncheonette v. Lakas ng Manggagawang
Pilipino)
o Where a party has had the opportunity to cross-examine a witness but failed to avail himself of it,
he necessarily forfeits the right to cross-examine and the testimony given on direct examination of
the witness will be received or allowed to remain in the record.
• The principle of requiring a testing of testimonial statements by cross-examination has been
understood as merely an opportunity to exercise the right to cross-examine, if desired. It does not
necessarily equate to an actual cross-examination.
o Where there was no such opportunity to cross-examine and the want of it was caused by the party
offering, the testimony should be stricken out. However, where the failure to obtain cross-
examination was imputable to the cross-examiner’s fault, the lack of cross-examination is no
longer a ground for exclusion according to the general principle that an opportunity, though
waived, will suffice.
• ITC, respondents had enough opportunity to cross-examine Fulgado before his death and Jose before his
migration. When the CA remanded the case to the CFI, respondents should have proceeded with the cross-
examination of the two Fulgados, which was a right previously withheld from them when they were
considered in default. Despite Fulgado’s old age and Jose’s imminent migration, respondents did not move
swiftly and decisively.
o It should be the counsel for respondents who moved to cross-examine the witnesses in this case,
as the task of recalling a witness for cross-examination is imposed on the party who wishes to
exercise said right.
o The intention to utilize the right, being personal and waivable, must be expressed. Silence or failure
to assert it on time amounts to a renunciation.
o Having had the liberty to cross-examine and having opted not to exercise it, the case is then the
same in effect as if private respondents had actually cross-examined.
• The acts of respondents constitute a waiver and a forfeiture of their right to cross-examination.
RULING
CA decision set aside; trial court ordered to reinstate Civil Case No. 10256 and allow the direct testimonies of
Fulgado and his witness Jose to remain in the record. The court is further ordered to give priority to the hearing
of said case in view of the length of time that it has remained unresolved on account of procedural differences.
NOTES

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UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW Evidence

E2024 Professor Jacboa

FACTS OF THE CASE

ISSUE/S & RATIO/S

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