was duly notified of todays hearing but despite notice he did not appear thereby

delaying the early termination of these cases.

Rule 20 Consequently, and on motion of the public prosecutor, let a warrant of arrest be issued
Subpoena against PO2 ALEXANDER BUAN and the Chief of Police, Caloocan City, Police
Superintendent Samuel Pagdilao is hereby directed to effect the service of the warrant
Pagdilao vs. Angeles 311SCRA 733
of arrest and to bring the body of the witness not later then 8:30 oclock in the morning
Ng Mentam vs. China GR. 214054
tomorrow, August 11, 1998 for him to testify in these cases.
Bank

The accused is likewise directed to appear tomorrow, August 11, 1998.

WHEREFORE, let the scheduled hearing for today be cancelled and have it reset
Syllabi/Synopsis tomorrow, August 11, 1998 at 8:30 oclock in the morning.
SECOND DIVISION
SO ORDERED.

On August 11, 1998, respondent issued another order in another case (Criminal
[A.M. No. RTJ-99-1467. August 5, 1999] Case No. C-53081(97)), the pertinent portion of which reads:[2]

ATTY. SAMUEL D. PAGDILAO, JR., Chief of Police, Caloocan City, complainant,
vs. JUDGE ADORACION G. ANGELES, RTC, Branch 121, Caloocan
City, respondent.
RESOLUTION
MENDOZA, J.:
This is a complaint for grave abuse of discretion filed against respondent Judge
Adoracion G. Angeles of the Regional Trial Court, Branch 121, Caloocan
City. Complainant is the Chief of Police of Caloocan City, Samuel D. Pagdilao, Jr. The
complaint stemmed from several orders of arrest issued by respondent against
Caloocan City policemen for their failure to attend hearings in criminal cases and testify
as state witnesses, which respondent wanted complainant to personally enforce.
The record shows that on August 10, 1998, respondent issued an order of arrest
which reads as follows:[1]
In todays initial trial in Criminal Case Nos. C-53625 (98), 53626 (98), 53622 and
53623 (98), accused Manuel Mendoza and Romeo Cendao appeared and assisted by
Atty. Ojer Pacis of the Public Attorneys Office (PAO). However, there was no
appearance on the part of PO2 Alexander Buan. The records will show however that he
After the pre-trial in this case has been waived by the accused through counsel, the
Public Prosecutor failed to present its evidence on the ground that his witnesses,
mostly police officers, did not appear despite notices.
Consequently, on motion of the Public Prosecutor, let a warrant of arrest be issued
against SPO1 Edgardo Fernandez and PO3 Eduardo S. Avila.
Let the service of the warrant of arrest upon SPO1 Edgardo Fernandez and PO3
Eduardo S. Avila be effected by no less than the Chief of Police of Caloocan City, Supt.
Samuel Pagdilao and the latter is directed to make a return on or before September 1,
1998.
On August 12, 1998, in Criminal Case No. C-53796(98), respondent issued an
order reading:[3]
A cursory examination of the records will readily show that on June 23, 1998 P/Insp.
Emmanuel R. Bravo appeared and signed for the scheduled hearing today, August 12,
1998 at 8:30 oclock in the morning, but he did not appear despite notice thereby
delaying the early termination of this case.
Let it be noted that the accused is a detention prisoner who is entitled to a speedy trial
and the trial could not proceed in view of the non-appearance of the aforesaid witness.

1|Page
Consequently, and on motion of the public prosecutor, let a warrant of arrest be issued
against P/Insp. Emmanuel R. Bravo of the Caloocan City Police Force and let the
warrant be served personally by the Chief of Police of Caloocan City, Police
Superintendent Samuel Pagdilao and the latter is directed to make a return of the
warrant not later than 8:30 oclock in the morning tomorrow, August 13, 1998.
Apparently, resenting the tenor of the orders directed personally at him,
complainant wrote respondent on August 14, 1998 asking for the reconsideration of the
foregoing orders:[4]
14 August 1998
Honorable Adoracion G. Angeles
Acting Presiding Judge
RTC Branch 125, Caloocan City
Your Honor:
This is with regards to orders lately coming from that (sic) Honorable Court directing
the undersigned to personally serve and return subpoenas and warrants of arrests
against PNP personnel assigned within and/or outside the Caloocan City Police Station.
As Chief of Police of one of the three biggest Police Departments in the National Capital
Region (next only to Manila and Quezon City), I have to attend to many matters which
would prevent my personally performing the task of service on (sic) subpoena and
warrants.
May I, therefore, respectfully request the Honorable Court to reconsider such orders
and instead allow the undersigned to delegate to subordinate officers particularly,
the Chief, Warrant and Subpoena Section and Sub-Station Commanders, the
performance of this task. This will allow the undersigned to personally attend to the
many operational activities of law enforcement as well as the various administrative
functions as Head of the Citys Police Department.
The order of the Honorable Judge to the undersigned Chief of Police disregards the
time honored tradition and system of Command and Control practiced in our
organization and reduces the level of the Chief of Police into a subpoena server and
arresting officer. A job which can be readily accomplished by the Chief of Warrant and
Subpoena Section and by other officers whom the Commander may direct under this
system.
2|Page
Records show that service of warrants and subpoena to PNP personnel have all been
duly accomplished by our warrant and Subpoena Section.
I hope that this request will merit your favorable consideration.
Very respectfully yours,
(signed)
ATTY. SAMUEL D. PAGDILAO JR.
Police Superintendent (DSC)
Chief of Police
Copy Furnished:
The Honorable Chief Justice, Supreme Court
The Honorable Court Administrator, Supreme Court
The Chief of the Philippine National Police
Respondents reaction was just as acerbic. In an order, dated August 21, 1998,
denying complainants request for reconsideration, she said:[5]
Before this court for consideration is a Letter-Request dated August 14, 1998 filed by
P/Supt. Samuel D. Pagdilao, Jr., Chief of Police of the Caloocan City Police Department.
He assails the orders coming from this court directing him to personally serve and
return subpoenas and warrants of arrest against PNP personnel assigned within and/or
outside the Caloocan City Police Station. He further contends that such orders
disregard the time-honored tradition and system of Command and Control practiced in
their organization and reduces the level of the Chief of Police into a subpoena server
and arresting officer.
Apparently, P/Supt. Samuel D. Pagdilao, Jr. perceives the assailed orders as an affront
to the eminence of his position as Chief of Police above all else.
Nonetheless, this court has never entertained thoughts of debasing the Chief of Police
or anybody else for that matter. Nor was it ever enticed to employ dictatorial schemes
to abbreviate its proceedings despite the fact that the Presiding Judge is practically
handling three (3) salas at the moment - the first as the duly appointed judge, the
second in an acting capacity and the third as the pairing judge for the presiding judge
thereat who has been on leave for quite some time already.
Notwithstanding the incessant pressure inherent in the job, this court takes pride in the
fact that it has never lost its clear vision that it exists primarily for the proper and
expeditious administration of justice.
Indeed, this court has always been very zealous in the discharge of its bounden
duties. Nonetheless, its earnest efforts to promote a speedy administration of justice
has many times been unduly hampered by the frequent non-appearances of police
officers in court hearings despite sufficient notice. It has always been a big
disappointment to the court that its dedication to duty is sometimes not matched by
some law-enforcement officers.
Hence, in order to solve this dilemma, the Court directed the Chief of Police to
personally ensure the attendance of his men in court hearings so much so that (sic)
their testimonies are very vital to the outcome of the criminal cases herein. The Orders
of the court were never meant to disregard the system of Command and Control being
employed in the Police Force. Its only concern was that such system of Command and
Control must be effectively used to address the lukewarm attitude of the Chief of
Polices subordinates relative to their duty to appear in court.
It is noteworthy to mention that since the issuance of the assailed Orders, the
concerned law enforcement officers have shown an impressive attendance in court
hearings which confirms that it makes a lot of difference when the Chief of Police
himself acts to ensure the compliance of his subordinates to a lawful court Order.
Needless to state, the court was able to solve a perennial problem with the renewed
cooperation of the Citys police force.
The court should not therefore be taken to task for its issuance of the questioned
Orders because the same was done in the interest of justice.
On the other hand, the Chief of Police must be reminded that this is not the time to be
onion-skinned and regard the said Orders as a personal insult to his dignity.
During this time when criminality is on the rise, would it not be more prudent for the
Chief of Police to lay aside his egotistical concerns and instead work with the courts of
justice in addressing the more pressing problems of criminality, violence and injustice?
WHEREFORE, premises considered, the Letter-Request of the Chief of Police of
Caloocan City is duly noted but the court reiterates its stand that its foremost concern
is the administration of justice and with this consideration indelibly etched in its mind,
3|Page
it will issue such Orders which are geared towards the achievement of its noble
purpose.
Let copies of this Order be furnished upon the Honorable Chief Justice and Honorable
Court Administrator of the Supreme Court as well as to the Chief of the Philippine
National Police (PNP).
SO ORDERED.
In his complaint, dated October 28, 1998, complainant avers that respondents
orders betray her ignorance of the rulings of this Court in several cases that non-
attendance at a trial does not constitute direct but indirect contempt punishable only
after written charge and hearing under Rule 71 of the Rules of Court. He states that
the action of respondent not only seriously affects the service records of the concerned
policemen but also jeopardizes their promotions.
Complainant likewise assails the orders of respondent requiring him personally to
arrest the policemen concerned, make a return of the orders, and in the case of PO2
Alexander Buan, to bring the latter to respondents court not later than 8:30 in the
morning of August 11, 1998. Complainant claims that the order is capricious and
whimsical because the time given to him for serving the warrant was short and
disregarded the system of command and control, and the doctrine of qualified political
agency in the administration of public offices. According to complainant, when he asked
respondent to reconsider her order and allow his subordinates, particularly the Chief of
the Warrant and Subpoena Section and the Sub-Station Commanders, to serve the
orders in question, respondent arrogantly dismissed [the principle complainant was
raising] as nothing but a display of egotistical concerns.
In her comment on the complaint, respondent contended that the warrants of
arrest against the Caloocan City policemen were issued merely for the purpose of
compelling the attendance of the policemen at the court hearings as state witnesses as
it had been her experience that the policemen ignored her orders. She stated that in
issuing the orders in question she was never motivated by ill will but that her concern
was solely to expedite the proceedings in two salas of the court over which she was
presiding since justice delayed is justice denied. She reiterated what she said in her
order denying complainants request to be relieved from serving the orders. Respondent
contends that a prior charge or hearing is not required before a warrant of arrest may
be issued under Rule 21, 8 of the Rules of Court. She argues that this provision only
requires proof of service of subpoena on a witness and the fact that the witness failed
to attend the scheduled hearing before a court can exercise its power of compulsion.
On the allegation that complainant was given a very short period of time for
serving the warrant of arrest against witness PO2 Buan, respondent points out that the
policeman was right in the Caloocan City Police Station were complainant held
office. As for her statement that complainants letter was nothing but a display of
egotistical concerns, respondent said that obviously complainant took offense because
of what he considered his exalted position as chief of police.
 Replying to respondents comment, complainant argues that Rule 21, 8 invoked by
respondent to justify her orders is not applicable. He points out that the orders were
intended not only to compel the attendance of policemen in court but also to punish
them for contempt of court. He also alleges that, contrary to respondents statement in
her order dated March 10, 1999, in Criminal Case Nos. C-55145(98) and 55146(98),
that he did not make a return of the warrant of arrest against PO3 Nestor Aquino,
complainant says he made a return which, in fact, was received in respondents court
on March 10, 1999 at 10:22 a.m.[6]
Respondents order reads as follows:[7]
In an order of the court dated March 8, 1999, a warrant for the arrest of PO3 Nestor
Aquino, prosecutions witness in these cases were issued by the Court directing the
Chief of Police of Caloocan City or the duly authorized representative of the latter to
produce the body of the aforesaid police officer not later than March 10, 1999 at 8:30
oclock in the morning.
A cursory examination of the records will show that the order was received by the Chief
of Police of Caloocan City on the same date, March 8, 1999 but despite receipt thereof,
the Chief of Police of Caloocan City did not bother to make a return of the warrant of
arrest thereby delaying the early disposition of these cases.
Let it be stressed that this is a joint trial of Crim. Case No. 55145 (98) and Crim. Case
No. C-55146 (98) for the violation of the drugs law.
This indeed does not speak well of the Chief of Police of Caloocan City.
WHEREFORE, the Chief of Police of Caloocan City is hereby given a period of three (3)
days from receipt of a copy of this order to explain and to show cause why he should
not be cited in contempt of court for failure to produce today, March 10, 1999, the
body of the afore-said witness.
Let copies of this order be furnished upon the Director of the Philippine National Police
(PNP) National Capital Judicial Region (NCJR), Bicutan, Metro Manila as well as to the
Director General of the PNP, Roberto Lastimosa for them to know the actuation of the
Chief of Police of Caloocan City in the discharged of its official function.
Complainants return, bearing the stamp RTC, Branch 121, Caloocan, City,
received, 3/10/99, 10:22 a.m., reads:[8]
Date 10 March 1999
Respectfully returned to the Branch Clerk of Court RTC BR 121 Cal City the attached
Warrant/Order of Arrest in Crim. Case No. 55145-55146 (98) against PO3 NESTER
4|Page
AQUINO with address at DDEU, NPDC, Tanigue St., Kaunlaran Vill, Caloocan City for
the crime of Non-appearance (at the scheduled hearing held on] 8 March 1999.
REASONS: UNSERVED. Subject PNP personnel was already dismissed from the service
effective 16 February 1999. Attached herewith is the xerox copy of Spl Order No 366
relative to his dismissal.
Complainant adds that, in Caloocan City, only respondent issues orders to
policemen to serve court processes on short notice, and orders their arrest without
hearing in case they fail to comply without taking into account that they also have
other work to do. He states that he filed the instant complaint against respondent not
to cause her dishonor but to promote respect for the law and to correct the
misimpression that Caloocan City policemen are inefficient or defying court orders.
The Office of the Court Administration (OCA) recommends the dismissal of the
complaint against respondent for lack of merit. In its report, it states among other
things:
A cursory reading of the records of this case shows the utter lack of merit of
complainants cause.
First, a perusal of the questioned orders issued by the respondent reveals that the
subject policemen were not punished for contempt of court hence the contempt
provisions under the Revised Rules of Court is not applicable. Prior written charge and
hearing therefore is not necessary before Judge Angeles can issue warrant of arrest to
compel their attendance in court hearings;
Second, a judge is not prohibited to issue orders directing heads of police stations to
personally serve and return processes from the court;
Third, it cannot be considered as unreasonable the period given to complainant within
which to effect the service of the warrants of arrest issued by the court considering
that the police officers to be served by said warrants are working right at the Station
headed by the complainant himself; and
Lastly, on the charge that respondent arrogantly regarded the letter of complainant as
nothing but a display of egotistical concerns we are inclined to believe that the
respondents remarks were not tainted with malice and that her only concern is for the
speedy and efficient administration of justice.
Rule 21, 8, pursuant to which respondent issued her orders, states that in case of
failure of a witness to attend, the court or judge issuing the subpoena, upon proof of
the service thereof and of the failure of the witness, may issue a warrant to the sheriff
of the province, or his deputy, to arrest the witness and bring him before the court or
officer where his attendance is required. Respondent is thus correct in contending that
a judge may issue a warrant of arrest against a witness simply upon proof that the
subpoena had been served upon him but he failed to attend the hearing. The purpose
is to bring the witness before the court where his attendance is required, not to punish
him for contempt which requires a previous hearing.[9] However, unnecessary tension
and asperity could have been avoided had respondent simply called the attention of
complainant to the failure of the latters men to comply with her orders instead of
directing complainant to personally serve the orders and bring the policemen himself to
her sala. Moreover, as is clear from Rule 21, 8, the orders of arrest should have been
addressed to the sheriff or the latters deputy. Respondent could have done this while
calling complainants attention to the alleged disregard by policemen of her orders so
that appropriate disciplinary action could be taken if necessary.
It would appear that respondents order of August 10, 1998 in Criminal Case Nos.
C-53625(98), 53626(98), 53622, and 53623(98), which provoked this incident and
gave rise to the word war between the parties, was made because respondent thought
that in the other cases (Criminal Case Nos. 55145(98) and 55146(98)) heard that
morning, complainant ignored her order to produce a policeman whom she had ordered
arrested. However, as already noted, the policeman could no longer be presented in
court as he had already been dismissed from the service, and complainant did make a
return informing the court of this fact, although his return did reach the court a few
hours after the hearing in which the policemans testimony was required.
It was this unfortunate incident which provoked the exchanges between
complainant and respondent: respondent acting on the erroneous belief that
complainant had ignored her order and, consequently, requiring complainant to
personally arrest his own men and take them to her court, and complainant taking
umbrage at the orders. The observance of restraint was never more demanded on the
part of both parties.
Respondent acted a bit rashly while complainant reacted too strongly. The courts
and the law enforcers are two of the five pillars of the criminal justice system, the
other three being the prosecution, the correctional subsystem, and the
community.[10] Cooperation among, and coordination between, the five pillars are
needed in order to make the system work effectively. Indeed, complainant and
respondent both avow a common objective of dispensing justice.More than that, the
parties should observe mutual respect and forbearance.
WHEREFORE, respondent Judge Adoracion G. Angeles of the Regional Trial Court,
Branch 121, Caloocan City is ADMONISHED to be more circumspect in the discharge of
her judicial function with WARNING that repetition of the same or similar acts will be
dealt with more severely. The instant complaint is DISMISSED.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, and Buena, JJ., concur.
5|Page
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, 2011.9redarclaw
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.13redarclaw
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.15redarclaw
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:LawlibraryofCRAlaw
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 affidavitor 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
6|Page
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:LawlibraryofCRAlaw
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:LawlibraryofCRAlaw
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:LawlibraryofCRAlaw
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:LawlibraryofCRAlaw
I Here, parties were presenting their evidence for the RTC’s consideration when the JAR
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
7|Page
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:LawlibraryofCRAlaw
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.
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:LawlibraryofCRAlaw
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:LawlibraryofCRAlaw
(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:LawlibraryofCRAlaw
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.26redarclaw
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:LawlibraryofCRAlaw
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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:LawlibraryofCRAlaw
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:LawlibraryofCRAlaw
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.cralawlawlibrary

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