DASMARIÑAS GARMENTS, INC., vs. HON. RUBEN T.

REYES
G.R. No. 108229 August 24, 1993

TOPIC: DEPOSITIONS

FACTS: American President Lines (APL) instituted an action against Dasma for recover the sum of US
$53,228.45 as well as an amount equivalent to twenty-five percent (25%) thereof as attorney's fees and
litigation expenses. Dasma filed an Answer with Counterclaim. APL on the other hand, filed a motion during
the hearing praying that it intended to take the depositions of Kenneth H. Lee and Yeong Fang Yeh in Taipei,
Taiwan and prayed that for this purpose, a commission or letters rogatory be issued addressed to the consul,
vice-consul or consular agent of the Republic of the Philippines in Taipei.

Five (5) days later APL filed an amended motion stating that since the Philippine Government has no
consulate office in Taiwan in view of its “one China policy,” there being in lieu thereof an office set up by the
President “presently occupied by Director Joaquin Roces which is the Asian Exchange Center, Inc.,” it was
necessary—and it therefore prayed—“that commission or letters rogatory be issued addressed to Director
Joaquin Roces, Executive Director, Asian Executive Exchange Center, Inc., Room 901,112 Chunghsiao, E.
Road, Section 1, Taipei, Republic of China, to hear and take the oral deposition of the forenamed persons

Dasma opposed the motion on the grounds thet the motion was fatally defective in that it does not seek that
a foreign court examine a person within its jurisdiction, the Issuance of letters rogatory was unnecessary
because the witnesses can be examined before the Philippine Court and the Rules of Court expressly
require that the testimony of a witness must be taken orally in open court and not by deposition

APL submitted to the RTC, the letter received by its counsel from Director Joaquin R. Roces of the Asian
Exchange Center, Inc., dated November 20, 1989, advising that "this Office can only take deposition upon
previous authority from the Department of Foreign Affairs," this being "in consonance with the Supreme
Court Administrative Order requiring courts or judicial bodies to course their requests through the
Department of Foreign Affairs and A letter sent by "fax" to the same counsel by a law firm in Taipei, Lin &
Associates Maritime Law Office, transmitting information inter alia of the mode by which, under the "ROC
Civil Procedure Code," "a copy or an abridged copy" of documents on file with a Taiwan Court may be
obtained.

RTC ruled in favor of the motion of the APL and affirmed by the CA

ISSUES: Whether or not the motion to take the testimonies of plaintiffs Taiwanese witnesses, Kenneth H.
Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) be allowed

HELD: YES. Depositions are chiefly a mode of discovery. They are intended as a means to compel
disclosure of facts resting in the knowledge of a party or other person which are relevant in some
suit or proceeding in court. Depositions, and the other modes of discovery (interrogatories to parties;
requests for admission by adverse party; production or inspection of documents or things; physical and
mental examination of persons) are meant to enable a party to learn all the material and relevant facts, not
only known to him and his witnesses but also those known to the adverse party and the latter’s own
witnesses. In fine, the object of discovery is to make it possible for all the parties to a case to learn all the
material and relevant facts, from whoever may have knowledge thereof, to the end that their pleadings or
motions may not suffer from inadequacy of factual foundation, and all the relevant facts may be clearly and
completely laid before the Court, without omission or suppression.

It is apparent then that the deposition of any person may be taken wherever he may be, in the Philippines
or abroad. If the party or witness is in the Philippines, his deposition “shall be taken before any judge,
municipal or notary public” (Sec. 10, Rule 24, Rules of Court). If in a foreign state or country, the deposition
“shall be taken: (a) on notice before a secretary or embassy or legation, consul general,
consul, vice consul, or consular agent of the Republic of the Philippines, or (b) before such person or officer
as may be appointed by commission or under letters rogatory”.
Go vs. People

TOPIC: DEPOSITIONS

FACTS: Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged before the MeTC of Manila
for Other Deceits under Article 318 of the RPC. Upon arraignment, petitioners pleaded not guilty to the
charge. The prosecution’s complaining witness, Li Luen Ping, a frail old businessman from Laos, Cambodia,
traveled from his home country back to the Philippines in order to attend the hearing held on September 9,
2004. However, trial dates were subsequently postponed due to his unavailability.

On October 13, 2005, the private prosecutor filed with the MeTC a Motion to Take Oral Deposition6 of Li
Luen Ping, alleging that he was being treated for lung infection at the Cambodia Charity Hospital in Laos,
Cambodia and that, upondoctor’s advice, he could not make the long travel to the Philippines by reason of
ill health. Notwithstanding petitioners’ Opposition, the MeTC granted8 the motion after the prosecution
complied with the directive to submit a Medical Certificate of Li Luen Ping. Petitioners sought its
reconsideration which the MeTC denied,9 prompting petitioners to file a Petition for Certiorari10 before the
RTC. On September 12, 2006, the RTC granted the petition and declared the MeTC Orders null and void.11
The RTC held that Section 17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply
suppletorily to the case since there is a specific provision in the Rules of Court with respect to the taking of
depositions of prosecution witnesses in criminal cases, which is primarily intended to safeguard the
constitutional rights of the accused to meet the witness against him face to face.

Upon denial by the RTC of their motion for reconsideration through an Order dated March 5, 2006,12 the
prosecution elevated the case to the CA. On February 19, 2008, the CA promulgated the assailed Decision
which held that no grave abuse of discretion can be imputed upon the MeTC for allowing the deposition
taking of the complaining witness Li Luen Ping because no rule of procedure expressly disallows the taking
of depositions in criminal cases and that, in any case, petitioners would still have every opportunity to cross
examine the complaining witness and make timely objections during the taking of the oral deposition either
through counsel or through the consular officer who would be taking the deposition of the witness.

ISSUE: WON THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE DEPOSITION TAKING
OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA IS AN INFRINGEMENT OF THE
CONSTITUTIONAL RIGHT OF THE PETITIONERS TO CONFRONT THE SAID WITNESS FACE TO
FACE.

HELD: YES. The examination of witnesses must be done orally before a judge in open court. This is true
especially in criminal cases where the Constitution secures to the accused his right to a public trial and to
meet the witnesses against him face to face. The requirement is the “safest and most satisfactory method
of investigating facts” as it enables the judge to test the witness’ credibility through his manner and
deportment while testifying. It is not without exceptions, however, as the Rules of Court recognizes the
conditional examination of witnesses and the use of their depositions as testimonial evidence in lieu of direct
ourt testimony.
Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court
where the case is pending would not only deprive a detained accused of his right to attend the proceedings
but also deprive the trial judge of the opportunity to observe the prosecution witness’ deportment and
properly assess his credibility, which is especially intolerable when the witness’ testimony is crucial to the
prosecution’s case against the accused

The CA ignored the procedure under the Revised Rules of Criminal Procedure for taking the deposition of
an unavailable prosecution witness when it upheld the trial court’s order allowing the deposition of
prosecution witness Li Luen Ping to take place in a venue other than the court where the case is pending.
This was certainly grave abuse of discretion.
VDA. DE MANGUERRA vs. RISOS
G.R. No. 152643, August 28, 2008

TOPIC: Rule 23

DOCTRINE:

The procedure set forth in Rule 119 applies to the case at bar. It is thus required that the conditional examination be
made before the court where the case is pending.It is also necessary that the accused be notified, so that he can attend the
examination, subject to his right to waive the same after reasonable notice. As to the manner of examination, the Rules mandate
that it be conducted in the same manner as an examination during trial, that is, through question and answer.

FACTS:

Respondents (Risos, et. al.) were charged with Estafa Through Falsification of Public Document before the RTC
through a criminal information. The case, arose from the falsification of a deed of real estate mortgage allegedly committed by
respondents where they made it appear that petitioner (Concepcion De Manguerra), the owner of the mortgaged property
known as the Gorordo property, affixed her signature to the document. Concepcion who was a resident of Cebu City, while on
vacation in Manila, was unexpectedly confined at the Makati Medical Center due to upper gastro-intestinal bleeding; and was
advised to stay in Manila for further treatment. The counsel of Concepcion filed a motion to take the latter’s deposition due to
her weak physical condition and old age, which limited her freedom of mobility. The RTC of Cebu granted the motion and
directed that Concepcion’s deposition be taken before the Clerk of Court of Makati City. After several motions for change of
venue of the deposition-taking, Concepcion’s deposition was finally taken at her residence.

Aggrieved, respondents assailed RTC orders in a special civil action for certiorari before the CA which rendered a
decision favorable to the respondents. At the outset, the CA observed that there was a defect in the respondent’s petition by not
impleading the People of the Philippines, an indispensable party. This notwithstanding, the appellate court resolved the matter
on its merit, declaring that the examination of prosecution witnesses, as in the present case, is governed by Section 15, Rule 119
of the Revised Rules of Criminal Procedure and not Rule 23 of the Rules of Court. The latter provision, said the appellate court,
only applies to civil cases. Pursuant to the specific provision of Section 15, Rule 119, Concepcion’s deposition should have been
taken before the judge or the court where the case is pending, which is the RTC of Cebu, and not before the Clerk of Court of
Makati City; and thus, in issuing the assailed order, the RTC clearly committed grave abuse of discretion. MR was denied. Hence,
this petition.

ISSUE:

Whether or not Rule 23 applies to this case.

RULING:

No. SC rejected the petitioner’s contention that Concepcion’s advanced age and health condition exempt her from the
application of Section 15, Rule 119 of the Rules of Criminal Procedure, and thus, calls for the application of Rule 23 of the Rules
of Civil Procedure.

The very reason offered by the petitioners to exempt Concepcion from the coverage of Rule 119 is at once the ground
which places her squarely within the coverage of the same provision. Rule 119 specifically states that a witness may be
conditionally examined: 1) if the witness is too sick or infirm to appear at the trial; or 2) if the witness has to leave
the Philippines with no definite date of returning. Thus, when Concepcion moved that her deposition be taken, had she not been
too sick at that time, her motion would have been denied. Instead of conditionally examining her outside the trial court, she would
have been compelled to appear before the court for examination during the trial proper.
 Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus required that the conditional
examination be made before the court where the case is pending.It is also necessary that the accused be notified, so that he can
attend the examination, subject to his right to waive the same after reasonable notice. As to the manner of examination, the Rules
mandate that it be conducted in the same manner as an examination during trial, that is, through question and answer.

Rule 119 categorically states that the conditional examination of a prosecution witness shall be made before the court
where the case is pending. Contrary to petitioner’s contention, there is nothing in the rule which may remotely be interpreted to
mean that such requirement applies only to cases where the witness is within the jurisdiction of said court and not when he is
kilometers away, as in the present case. Therefore, the court may not introduce exceptions or conditions.
ALLIED AGRI-BUSINESS DEVELOPMENT CO., INC., vs. COURT OF APPEALS

G.R. No. 118438. December 4, 1998

TOPIC: Rule 26

DOCTRINE:

Each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in
the request which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow
on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement
either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.

FACTS:

Cherry Valley Farms Limited (CHERRY VALLEY), a foreign company based in England, filed against petitioner Allied
Agri-Business Development Co. Inc. (ALLIED) a complaint with the Regional Trial Court of Makati City for collection of sum
of money for failure of ALLIED to pay several duck hatching eggs and ducklings which in value totaled 51,245.12.
ALLIED filed an answer denying the material allegations of the complaint. CHERRY VALLEY served on ALLIED’s
counsel a Request for Admission. ALLIED filed its Comments/Objections alleging that: (a) the admissions requested were
matters which the private respondent had the burden to prove through its own witness during the trial and thus petitioner need
not answer; and, (b) the request for admission regarding the ownership set-up of petitioner corporation was immaterial and
improper for not having been pleaded in the complaint.
In its Reply to Comments/Objections to Request for Admission, CHERRY VALLEY maintained that there was no need on
its part to produce a witness to testify on the matters requested for admission, for these pertained to incidents personal to and
within the knowledge of petitioner alone. Thereafter, CHERRY VALLEY filed a motion with the trial court to resolve the
objections of ALLIED to the request for admission.
Trial court issued an Order disregarding ALLIEDs Comments/Objections to Request for Admission in view of its non-
compliance with Sec. 2, Rule 26, of the Rules of Court and directing ALLIED to answer the request for admission within ten
(10) days from receipt of the order, otherwise, the matters contained in the request would be deemed admitted. ALLIED moved
to reconsider the order but was denied. ALLIED’s motion for reconsideration and directed the latter to answer the request for
admission within a non-extendible period of five (5) days from receipt of the order.
ALLIED failed to submit a sworn answer to the request for admission within the additional period of five (5) days granted
by the trial court. Hence, CHERRY VALLEY filed a motion for summary judgment alleging that there was already an implied
admission on the matters requested for admission pursuant to Rule 26 of the Rules of Court.
Trial court rendered judgmenthttp://sc.judiciary.gov.ph/jurisprudence/1998/dec1998/118438.htm - _edn8 against
petitioner. ALLIED appealed to the Court of Appeals which affirmed the summary judgment. Hence, this petition.
ISSUE:
Whether or not ALLIED’s failure to answer the request for admission did not result in its admission of the matters stated
in the request.

RULING:

No. Section 1 of Rule 26 of the Rules of Court provides:

SECTION 1. Request for admission. - At any time after issues have been joined, a party may file and serve upon any other
party a written request for the admission by the latter of the genuineness of any material and relevant document described in
and exhibited with the request or of the truth of any material and relevant matter of fact set forth in the request. Copies of the
documents shall be delivered with the request unless copies have already been furnished.
 The purpose of the rule governing requests for admission of facts and genuineness of documents is to expedite trial and to
relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by
reasonable inquiry. Each of the matters of which an admission is requested shall be deemed admitted unless within a period
designated in the request which shall not be less than fifteen (15) days after service thereof, or within such further time as the
court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a
sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons
why he cannot truthfully either admit or deny those matters. Upon service of request for admission, the party served may do any
of the following acts: (a) he may admit each of the matters of which an admission is requested, in which case, he need not file an
answer; (b) he may admit the truth of the matters of which admission is requested by serving upon the party requesting a written
admission of such matters within the period stated in the request, which must not be less than ten (10) days after service, or within
such further time as the court may allow on motion and notice; (c) he may file a sworn statement denying specifically the matter
of which an admission is requested; or, (d) he may file a sworn statement setting forth in detail the reasons why he cannot
truthfully either admit or deny the matters of which an admission is requested.
The records show that although petitioner filed with the trial court its comments and objections to the request for admission
served on it by private respondent, the trial court disregarded the objections and directed petitioner after denying its motion for
reconsideration, to answer the request within five (5) days from receipt of the directive; otherwise, the matters of which the
admission was requested would be deemed admitted. Petitioner failed to submit the required answer within the period. The matter
set forth in the request were therefore deemed admitted by petitioner, i.e., (a) that for a period of six (6) months starting from 1
September 1982, petitioner ordered and received from respondent CHERRY VALLEY duck eggs and ducklings amounting to
51,245.12; (b) that petitioner received a letter dated 22 March 1985 from private respondents lawyer demanding payment of the
amount of the purchases; (c) that instead of paying the obligation to respondent CHERRY VALLEY, petitioners president
Ricardo Quintos sent a letter to the former proposing the establishment of a new corporation with CHERRY VALLEY as one of
the stockholders; (d) that the proposal was refused by the Director of CHERRY VALLEY; and, (e) that petitioners president
Ricardo Quintos admitted the indebtedness of his corporation to CHERRY VALLEY in the sum of English Sterling Pounds
51,245.12.
The burden of affirmative action is on the party upon whom notice is served to avoid the admission rather than upon the
party seeking the admission. Hence, when petitioner failed to reply to a request to admit, it may not argue that the adverse party
has the burden of proving the facts sought to be admitted. Petitioners’ silence is an admission of the facts stated in the request.
PEOPLE OF THE PHILIPPINES vs WEBB
312 SCRA 573

TOPIC: Oral depositions

DOCTRINE: The use of discovery procedures is directed to the sound discretion of the trial judge. The deposition taking can
not be based nor can it be denied on flimsy reasons. Discretion has to be exercised in a reasonable manner and in
consonance with the spirit of the law.

FACTS: Hubert Webb, an accused in the crime of Rape with Homicide, filed a Motion to Take Testimony by Oral Deposition, to
take the testimonies of some vital witnesses residing in the U.S., before the proper Philippine consular authorities since the
Philippine court had no jurisdiction over them and may not therefore be compelled by subpoena to testify. Respondent further
alleged that the taking of the oral depositions of the aforementioned individuals whose testimonies are allegedly ‘material and
indispensable’ to establish his innocence of the crime charged is sanctioned by Section 4, Rule 24 of the Revised Rules of
Court. The prosecution thereafter filed an opposition to the said motion averring that Rule 24, Section 4 of the Rules of Court
has no application in criminal cases. The trial court denied the motion but was thereafter reversed by the CA on appeal.

ISSUE: Whether or not the CA committed reversible error in reversing the trial court’s ruling?

RULING: YES. It need not be overemphasized that the factual circumstances only serves to underscore the immutable fact
that the depositions proposed to be taken from the five U.S. based witnesses would be merely corroborative or cumulative in
nature and in denying respondent’s motion to take them, the trial court was but exercising its judgment on what it perceived to
be a superfluous exercise on the belief that the introduction thereof will not reasonably add to the persuasiveness of the
evidence already on record.

It is pointed out that the defense has already presented at least fifty-seven (57) witnesses and four hundred sixty four (464)
documentary exhibits, many of them of the exact nature as those to be produced or testified to by the proposed foreign
deponents. Under the circumstances, we sustain the proposition that the trial judge commits no grave abuse of discretion if she
decides that the evidence on the matter sought to be proved in the United States could not possibly add anything substantial to
the defense evidence involved.

The use of discovery procedures is directed to the sound discretion of the trial judge. The deposition taking can not be based
nor can it be denied on flimsy reasons. Discretion has to be exercised in a reasonable manner and in consonance with the
spirit of the law.
SPOUSES AFULUGENCIA vs METROBANK
715 SCRA 399

TOPIC: Section 6, Rule 25 of the Rules of Court (Rules) provides that "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." The provision
seeks to prevent fishing expeditions and needless delays. Its goal is to maintain order and facilitate the conduct of trial.

FACTS: Petitioners, spouses Vicente and Leticia Afulugencia, filed a Complaint for nullification of mortgage, foreclosure,
auction sale, certificate of sale and other documents, with damages, against respondents Metropolitan Bank & Trust Co.
(Metrobank) and Emmanuel L. Ortega (Ortega) before the RTC of Malolos City. With the conclusion of pre-trial, petitioners filed
a Motion for Issuance of Subpoena Duces Tecum Ad Testificandum to require Metrobank’s officers to appear and testify as the
petitioners’ initial witnesses during the August 31, 2006 hearing for the presentation of their evidence-in-chief, and to bring the
documents relative to their loan with Metrobank, as well as those covering the extrajudicial foreclosure and sale of petitioners’
200- square meter land in Meycauayan, Bulacan.

Metrobank filed an Opposition arguing that for lack of a proper notice of hearing, the Motion must be denied; that being a
litigated motion, the failure of petitioners to set a date and time for the hearing renders the Motion ineffective and pro forma;
that pursuant to Sections 1 and 6 of Rule 25 of the Rules, Metrobank’s officers – who are considered adverse parties – may
not be compelled to appear and testify in court for the petitioners since they were not initially served with written interrogatories;
that petitioners have not shown the materiality and relevance of the documents sought to be produced in court; and that
petitioners were merely fishing for evidence.

On October 19, 2006, the RTC denied petitioners’ motion for lack of merit. Petitioners filed a Motion for Reconsideration
claiming that the defective notice was cured by the filing of Metrobank’s Opposition, which they claim is tantamount to notice.

The RTC denied petitioners’ Motion for Reconsideration prompting them to file a Petition for Certiorari with the CA asserting
this time that their Motion for Issuance of Subpoena Duces Tecum Ad Testificandum is not a litigated motion; it does not seek
relief, but aims for the issuance of a mere process. They added that Rule 21 of the Rules requires prior notice and hearing only
with respect to the taking of depositions. Finally, petitioners claimed that the Rules – particularly Section 10,22 Rule 132 – do
not prohibit a party from presenting the adverse party as its own witness. The CA affirmed the assailed decision.

ISSUE: Whether or not an adverse party can be required to take the witness stand (Sec. 6 of Rule 25) without complying with
the notice and hearing requirement under Sec. 4 and 5 of Rule 15?

RULING: NO. On the procedural issue, it is quite clear that Metrobank was notified of the Motion for Issuance of Subpoena
Duces Tecum Ad Testificandum; in fact, it filed a timely Opposition thereto. The technical defect of lack of notice of hearing was
thus cured by the filing of the Opposition. As a rule, 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. This is embodied in Section 6, Rule 25 of the
Rules, which provides – 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.

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.

In the present case, petitioners seek to call Metrobank’s officers to the witness stand as their initial and main witnesses, and to
present documents in Metrobank’s possession as part of their principal documentary evidence. This is tantamount to building
their whole case from the evidence of their opponent. The burden of proof and evidence falls on petitioners, not on Metrobank;
if petitioners cannot prove their claim using their own evidence, then the adverse party Metrobank may not be pressured to
hang itself from its own defense.
Disini vs. Sandiganbayan
G.R. No. 175730, July 5, 2010

TOPIC: Deposition

FACTS:

Disini, herein petitioner was charged for two information for corruption of public officials, Art 212 in rel. to Art 210 (RPC) and violation of RA
3019. For failure to file a responsive pleading, petitioner was declared in default. Subsequently, petitioner filed a Motion to Lift Order of Default
and for Leave to File and Admit Attached Answer, together with an Answer to Amended Complaint with Compulsory Counterclaims. He
maintained that he was unaware of the civil case pending against him because he never received summons or other processes from the court,
nor any pleadings from the parties of the case. His only fault, he averred, was that he was ignorant of the proceedings in the case because of
the absence of a proper notice. Petitioner asked the respondent court to look at his meritorious defenses. He then invoked the liberality of the
courts in lifting default orders to give both parties every opportunity to defend their cases, and pointed out that the proceedings, being in their
pre-trial stage, would not be delayed by petitioner’s participation therein.

Petitioner’s Answer contained affirmative defenses such as the respondent court’s failure to acquire jurisdiction over his person through service
by publication and the failure of the Amended Complaint to state a cause of action against him

The Sandiganbayan ruled in favor of the Republic. Thus, the petitioner filed a petition for certiorari on the ground that the
Sandiganbayan committed grave abuse of discretion amounting to lack of jurisdiction. Pending such petition, the petitioner filed several motions,
one of those is a Motion to Take Deposition.

ISSUE:

Whether or not the Sandiganbayan acquired jurisdiction over the petitioner.

RULING:

YES. In regard to the last mentioned Motion for Leave to Take Deposition (which is the last pleading on record), it is important to note that there
are two instances when the defendant can take depositions under Section 1 of Rule 23: (1) after the court has acquired jurisdiction over the
defendant or the property subject of the action; and (2) after an answer has been served. Both instances presuppose that the court has already
acquired jurisdiction over the defendant. By seeking the relief contained in this provision, petitioner is deemed to have voluntarily submitted
himself to the jurisdiction of the Sandiganbayan. Thus, petitioner may be held to have waived his objections regarding the lack of jurisdiction
over his person by seeking affirmative relief through the said provision.

While petitioner bewailed the mode of service of summons on him and questioned the Sandiganbayan’s jurisdiction over his person, he has
rendered his own arguments moot by his voluntary appearance or submission to the jurisdiction of the Sandiganbayan. Jurisprudence holds
that an objection based on lack of jurisdiction over the person is waived when the defendant files a motion or pleading which seeks affirmative
relief other than the dismissal of the case.
People vs Bustamante
G.R. No. 189836, June 5, 2013

TOPIC:

FACTS:

The petitioner in this case was charged for the crime of rape by means of threat and intimidation have sexual intercourse with his own daughter,
the herein offended party, AAA for several times, starting from the time that the offended party was only eleven (11) years of age, against her
will. The trial Court convicted him of the said crime. In his appeal, he claims that, as evidenced by the victim’s own testimony, AAA filed a false
complaint of rape against him mainly due to her ill feelings towards him brought about by his purported repeated physical maltreatment of the
victim.

ISSUE:

Whether or not the contention of the petitioner is with merit.

RULING:

NO. The Court rule that, it is settled in jurisprudence that in a prosecution for rape, the accused may be convicted solely on the basis of the
testimony of the victim that is credible, convincing, and consistent with human nature and the normal course of things. Jurisprudence is likewise
instructive that the factual findings of the trial court, especially on the credibility of the rape victim, are accorded great weight and respect and
will not be disturbed on appeal.

In the case at bar, both the trial court and the Court of Appeals found AAA to be a credible witness and her testimony worthy of full faith and
credit. After a careful review of the records of this case, we find no reason to deviate from the findings of the lower courts.

In his defense, appellant interposes denial while also ascribing ill motive on the part of the victim, his own biological daughter, for accusing him
of rape. However, it is well-settled that denial, if unsubstantiated by clear and convincing evidence, is a self-serving assertion that deserves no
weight in law because denial cannot prevail over the positive, candid and categorical testimony of the complainant, and as between the positive
declaration of the complainant and the negative statement of the appellant, the former deserves more credence. Likewise, the testimonies of
the witnesses presented by appellant failed to buttress his defense of denial as they merely related to tangential matters which do not seriously
affect the issue of AAA’s credibility.
G.R. No. 169677 February 18, 2013

METROPOLITAN BANK AND TRUST COMPANY, as successor-in-interest of ASIAN BANK CORPORATION, Petitioner,
vs.
HON. EDILBERTO G. SANDOVAL, HON. FRANCISCO H. VILLARUZ, JR. and HON. RODOLFO A. PONFERRADA (in their capacities as
Chairman and Members, respectively, of the Second Division of SANDIGANBAYAN) and the REPUBLIC OF THE
PHILIPPINES, Respondents.

TOPIC: CONSOLIDATION

FACTS

On July 17, 1987, the Republic brought a complaint for reversion, reconveyance, restitution, accounting
and damages in the Sandiganbayan against Andres V. Genito, Jr., Ferdinand E. Marcos, Imelda R. Marcos and other defendants. The action
was obviously to recover allegedly ill-gotten wealth of the Marcoses, their nominees, dummies and agents. Among the properties subject
of the action were 2 parcels of commercial land located in Tandang Sora (Old Balara), Quezon City, registered in the names of Spouses
Andres V. Genito, Jr. and Ludivina L. Genito. Republic later on amended its complaint to implead Asian Bank as an additional defendant
since the latter claimed ownership of the 2 parcels of land as the registered owner and it was also in possession of the properties by virtue
of the writ of possession issued by the RTC QC.

When the Republic was about to terminate its presentation of evidence against the original defendants in Civil Case No. 0004, it moved to
hold a separate trial against Asian Bank.
Asian Bank sought the deferment of any action on the motion and contended that it would be deprived of its day in court if a separate trial
were to be held against it without having been sufficiently apprised about the evidence the Republic had adduced before it was brought in
as an additional defendant.
Republic maintained that a separate trial for Asian Bank was proper because its cause of action against Asian Bank was entirely distinct and
independent from its cause of action against the original defendants; and that the issue with respect to Asian Bank was whether Asian Bank
had actual or constructive knowledge at the time of the issuance of the TCTs for the properties in its name that such properties were the
subject of the complaint in Civil Case No. 0004, while the issue as to the original defendants was whether they had "committed the acts
complained of as constituting illegal or unlawful accumulation of wealth which would, as a consequence, justify forfeiture of the said
properties or the satisfaction from said properties of the judgement that may be rendered in

favor of the Republic." Asian Bank’s rejoinder to the reply asserted that the issue in Civil Case No. 0004 was intimately related to the issue
delving on the character of the properties as the ill-gotten wealth of the original defendants; that it thus had a right to confront the evidence
presented by the Republic as to the character of the properties; and that the Sandiganbayan had no jurisdiction to decide Asian Bank’s
ownership of the properties because the Sandiganbayan, being a special court with limited jurisdiction, could only determine the issue of
whether or not the properties were illegally acquired by the original defendants. Sandiganbayan granted the Republic’s motion for separate
trial. Asian Bank moved for the reconsideration of the resolution, but the Sandiganbayan denied its motion.

Hence, Metrobank commenced this special civil action for certiorari as the successor-in-interest of Asian Bank and transferee of the
properties.

ISSUE

WON THE REPUBLIC WAS ENTITLED TO A SEPARATE TRIAL AGAINST ASIAN BANK;

HELD

NO. The rule on separate trials in civil actions is found in Section 2, Rule 31 of the Rules of Court, which reads:

Section 2. Separate trials. – The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-
claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party
complaints or issues.

The text of the rule grants to the trial court the discretion to determine if a separate trial of any claim, cross-claim, counterclaim, or third-
party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues should
be held, provided that the exercise of such discretion is in furtherance of convenience or to avoid prejudice to any party.
Sandiganbayan committed grave abuse of its discretion in ordering a separate trial as to Asian Bank (Metrobank) on the ground that the
issue against Asian Bank was distinct and separate from that against the original defendants. Thereby, the Sandiganbayan veered away from
the general rule of having all the issues in every case tried at one time, unreasonably shunting aside the dictum in Corrigan, supra, that a
"single trial will generally lessen the delay, expense, and inconvenience to the parties and the courts." Exceptions to the general rule are
permitted only when there are extraordinary grounds for conducting separate trials on different issues raised in the same case, or when
separate trials of the issues will avoid prejudice, or when separate trials of the issues will further convenience, or when separate trials of
the issues will promote justice, or when separate trials of the issues will give a fair trial to all parties. Otherwise, the general rule must apply.
The justification of the Sandiganbayan for allowing the separate trial did not constitute a special or compelling reason like any of the
exceptions.

To begin with, the issue relevant to Asian Bank was not complicated. In that context, the separate trial would not be in furtherance of
convenience. And, secondly, the cause of action against Asian Bank was necessarily connected with the cause of action against the original
defendants.

Should the Sandiganbayan resolve the issue against Spouses Genito in a separate trial on the basis
of the evidence adduced against the original defendants, the properties would be thereby adjudged as ill-gotten and liable to forfeiture in
favor of the Republic without Metrobank being given the opportunity to rebut or explain its side. The outcome would surely be prejudicial
towards Metrobank.
G.R. No. 199501 March 6, 2013

REPUBLIC OF THE PHILIPPINES, represented by the REGIONAL EXECUTIVE DIRECTOR, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, REGION III, Petitioner,
vs.
HEIRS OF ENRIQUE ORIBELLO, JR. and THE REGISTER OF DEEDS OF OLONGAPO CITY,Respondents.

TOPIC: APPEAL, CONSOLIDATED CASES

FACTS

This case involved an action for annulment of the miscellaneous sales patent filed by Apog and San
Juan; and for the cancellation and reversion of the title filed by the Republic , against Oribello , Jr. before the RTC of Olongapo City.

On July 25,1997, the court issued an order stating that on several occasions when these cases were set for trial , neither of the Republic’s
counsels appeared., constraining the court to postpone the hearing. The actuations of both lawyers result to dely in the early termination
of these cases which have been pending since 1992.

The trial court dismissed the consolidated cases without prejudice for non-substitution of the deceased plaintiff ( Oribello) and his
counsel.Republic moved for reconsideration, contending that the order applied exclusively to civil case for recovery of possession and did
not affect case for reversion of property. Petitioner prayed that it allowed to present its
evidence.

The Trial Court allowed the continuation of the presentation of petitioner’s evidence in its Order dated
June 2005. Heirs of Oribello filed then a Manifestation and Motion. They pointed out that from the time the Republic received the Order in
1997, it did nothing to question the same, making the order final. In its resolution in July 12, 2006, the RTC recalled its order and dismissed
the case.

The Republic appealed to the CA. The CA agreed with respondents that petitioner has lost its right to participate in the proceedings of the
case when it failed to question the RTC’s September 12, 1997 order declaring it to have abandoned the case as a consequence of petitioner’s
inaction, such order inevitably became final. Republic however contends that the order, deeming it to have abandoned the caes, is
interlocutory in nature; thus is not appealable. Respondents argue otherwise, maintaining that such order is a dismissal of the complaint on
the ground of failure to prosecute which is under the Rules, considered an adjudication on the merits, and hence, appelable.

ISSUE

WON THE CONSOLIDATED CASES SUBJECT TO MULTIPLE APPEALS.

Yes. Section 1, Rule 31 of the Rules of Court provides:

SECTION 1. Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated, and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Consolidation is a procedural device to aid the court in deciding how cases in its docket are to be tried so that the business of the court may
be dispatched expeditiously and with economy while providing justice to the parties.25

To promote this end, the rule allows the consolidation and a single trial of several cases in the court’s docket, or the consolidation of issues
within those cases
In the present case, the complaint for reversion filed by petitioner (Civil Case No. 92) was consolidated with the complaint for recovery of
possession filed by Oribello (Civil Case No.223091). While these two cases involve common questions of law and fact,28 each action retains
its separate and distinct character.

The reversion suit settles whether the subject and will be reverted to the State, while the recovery of possession case determines which
private party has the better right of possession over the subject property.
These cases, involving different issues and seeking different remedies, require the rendition and entry of separate judgments. The
consolidation is merely for joint trial of the cases. Notably, the complaint for recovery of possession proceeded independently of the
reversion case, and was disposed of accordingly by the trial court. Since each action does not lose its distinct character, severance of one
action from the other is not necessary to appeal a judgment already rendered in one action. There is no rule or law prohibiting the appeal
of a judgment or part of a judgment in one case which is consolidated with other cases. Further, severance is within the sound discretion of
the court for convenience or to avoid prejudice. It is not mandatory under the Rules of Court that the court sever one case from the other
cases before a party can appeal an adverse ruling on such case.
SPOUSES JUVY MARAÑO and MARIA LUISA G. MARAÑO VS. PRYCE GASES, INCORPORATED
G.R. No. 196592
TOPIC: CONSOLIDATION OR SEVERANCE
DOCTRINE: Consolidation is proper when two or more actions pending, not necessarily, before the same court involve a common question
of law or fact. In such cases, the court may: order a joint hearing or trial of any or all the matters in issue in the actions, order all the actions
consolidated, and make such orders concerning the proceedings therein for the purpose of avoiding unnecessary costs and delay.

FACTS: Petitioners, filed for free patent application for a parcel of land in Damulaan, Albuera, Leyte which was granted.
Consequently, they then filed an ejectment complaint against respondent alleging that the latter illegally entered the subject lot
and constructed a building thereon. The MTC granted the petition, but was later on reversed by the RTC. On appeal, the Court
of Appeals remanded the case to the MTC for trial as a reivindicatory action under the ordinary rules of civil procedure.

However, in the interim, the respondent filed a protest on the free patent application filed by the petitioners. Asa result,
the Department of Environment and Natural Resources (DENR) rendered a decision recommending the filing of reversion
proceedings against the petitioners, which decision became final and executory, but no reversion proceedings were instituted.
The petitioners filed an action to quiet title against the respondent with the RTC, 8th Judicial Region, Branch 14, Baybay City,
Leyte and a month later, the respondent also filed a complaint for reconveyance against the petitioners before the same RTC.
The petitioners moved to dismiss the respondent’s complaint, but the RTC denied their motion. The respondent later moved to
amend its complaint from reconveyance to the cancellation of the petitioners’ certificate of title. The petitioners again moved to
dismiss the respondent’s amended complaint on the ground of litis pendentia in view of the then pending reivindicatory action
with the MTC.

RTC’s RULING: The RTC, in a resolution dismissed the petitioners’ motion. The petitioners moved for reconsideration but their
motion was likewise denied by the RTC. The petitioners questioned the RTC’s resolution in a petition for certiorari with the CA.

CA’s RULING: The CA held that no litis pendentia existed between the reivindicatory action (then pending before the MTC) and
the amended complaint for cancellation of certificate of title filed by the respondent with the RTC. The petitioners moved to
reconsider the CA’s decision but their motion was denied, hence, this petition.

ISSUE: Whether the CA erred inruling that there was no litis pendentia existed between the reivindicatory action (then pending
before the MTC) and the amended complaint for cancellation of certificate of title filed by the respondent with the RTC.

RULING: YES.

Instead of ordering the dismissal of the respondent’s complaint for cancellation of certificate of title, we find that the
consolidation of the reivindicatory action and the cancellation of certificate of title case to be the appropriate remedy in the
present situation. Consolidation is proper when two or more actions pending, not necessarily, before the same court involve a
common question of law or fact. In such cases, the court may, order a joint hearing or trial of any or all the matters in issue in
the actions, order all the actions consolidated, and make such orders concerning the proceedings therein for the purpose of
avoiding unnecessary costs and delay. Considering that the validity of the petitioners’ certificate of title is the crucial issue in
both the reivindicatory action pending appeal before the RTC and the cancellation of certificate of title case filed by the
respondent, these two cases should be consolidated in order to avoid the possibility of rendering conflicting decisions and for
the orderly administration of justice. And since the issue of validity of the petitioners’ certificate of title has been subjected to a
full-blown trial before the MTC and is now the subject of appeal before the RTC, allowing the cancellation of certificate of title
case to proceed independently and separately would be needlessly circuitous and would necessarily delay the resolution of the
present issue.
PHILIPPINE HEALTH INSURANCE CORPORATION VS. OUR LADY OF LOURDES HOSPITAL
G.R. No. 193158
TOPIC: PRODUCTION OR INSPECTION OF DOCUMENT OR THINGS
DOCTRINE: Through written interrogatories, a party may elicit from the adverse party or parties any facts or matter that are not privileged
and are material and relevant to the subject of the pending action. Like other modes of discovery authorized by the Rules, the purpose of
written interrogatories is to assist the parties in clarifying the issues and in ascertaining the facts involved in a case. On the other hand, the
provision on production and inspection of documents is to enable not only the parties but also the court (in this case, the PHIC Arbitration
Department) to discover all the relevant and material facts in connection with the case pending before it. It must be shown, therefore, that
the documents sought to be produced, inspected and/or copied/photographed are material or contain evidence relevant to an issue involved
in the action.

FACTS: Petitioner Philippine Health Insurance Corporation (PHIC) was a government corporation created to administer and
implement the country’s National Health Insurance Program, while, respondent Our Lady of Lourdes Hospital (OLLH) was an
institutional health care provider duly accredited with the PHIC. The former filed a complaint with its Legal Sector-Prosecution
Department against OLLH for the administrative offense of filing multiple claims, which was penalized under one of the provisions
of the Implementing Rules and Regulations (IRR) of R.A. No. 7875. Allegedly, OLLH filed two claims of the same amount of
PhilHealth benefits involving the same patient for the same diagnosis and covering the same period of confinement. Summons
was duy served, then, an answer was filed by OLLH.

The parties were then, directed to file their respective Position Papers, but only PHIC complied with the order. OLLH
moved to defer the submission of its position paper pending the answer of the PHIC President and CEO to the written
interrogatories as well as the inspection and copying of the original transmittal letter and all other claims that accompanied
Annex B11 of the Complaint. According to OLLH, these modes of discovery were availed of because its representatives were
denied and/or not given access to documents and were not allowed to talk to PHIC personnel with regard to the charge. PHIC
filed its Comment on OLLH’s motion. In its defense, PHIC asserted that OLLH’s overt acts clearly revealed its intent to delay the
administrative proceedings. It stressed that the material points which OLLH sought to establish in its resort to modes of discovery
were already presented in the pleadings and documents it submitted for consideration of the Arbiter. Specifically, the subject
information and documents sought to be examined were the same information and documents which OLLH itself prepared,
produced, and submitted to the PHIC. Likewise, the PHIC procedure subject of the interrogatories, apart from being publicly
accessible and already known to OLLH, was immaterial to the case given OLLH’s sole defense that it inadvertently attached the
wrong document that led to the processing of two separate claims.
Thereafter, the PHIC Arbitration Department, through Arbiter De Leon, denied OLLH’s motion.

PHIC ARBITRATION DEPARTMENT RULING: In the light of being summary in nature of the rules that govern the
administrative proceedings as in this case, the interrogatories and motion for production and inspection of documents filed by
could not be given be given due course by this Office. Relevantly, for an obvious reason as can be inferred from the purpose of
the said pleadings, the allowance of the same would not practically hasten the early disposition of the instant case.

Respondent filed a Motion for Reconsideration, but the same was denied for the Arbiter believed that all the issues and queries
raised by OLLH in its motion may be addressed in the hearing to be held after submission of its position paper. An certiorari
under Rule 65 was then filed before the CA.

CA’s RULING: The CA reversed the Resolutionof the PHIC Arbiter and ruled that petitioner OLLH has shown good cause for its
resort to the modes of discovery as the same was anchored on its being able to intelligently prepare a position paper considering
that it was not allowed access to some pertinent documents or talk to PHIC personnel with regard the charge of filing multiple
claims. Petitioner OLLH also seeks the fullest possible information that are material and relevant to the case. The subject of the
Interrogatories appears to be relevant and not privileged as they pertain to the procedure being followed by PHIC in processing
and evaluating claims. Petitioner OLLH has also shown the materiality and relevancy of the document sought to be produced or
inspected, hence, this petition.

ISSUE: Whether CA erred in annulling and setting aside the of the PHIC Arbitration Department, which denied OLLH’s resort to
modes of discovery specifically the production and inspection of documents.

RULING: YES.

Through written interrogatories, a party may elicit from the adverse party or parties any facts or matter that are not
privileged and are material and relevant to the subject of the pending action. Like other modes of discovery authorized by the
Rules, the purpose of written interrogatories is to assist the parties in clarifying the issues and in ascertaining the facts involved
in a case. On the other hand, the provision on production and inspection of documents is to enable not only the parties but also
the court (in this case, the PHIC Arbitration Department) to discover all the relevant and material facts in connection with the
case pending before it. It must be shown, therefore, that the documents sought to be produced, inspected and/or
copied/photographed are material or contain evidence relevant to an issue involved in the action.

In this case, the questions contained in the written interrogatories filed and received on July 28, 2009 sought to elicit
facts that could already be seen from the allegations as well as attachments of the Complaint and the Verified Answer. Specifically,
the entries in the three (3) Validation Report that OLLH sought to be identified and/or explained by PHIC are either immaterial
or irrelevant (to the issue of whether OLLH is guilty of filing multiple claims and OLLH’s defense that it inadvertently attached a
second copy of the subject PhilHealth Claim Form 2 to the Transmittal Letter filed on June 19, 2007) or, even if material or
relevant, are self-explanatory and need no further elaboration from PHIC. Thus, the interrogatories were frivolous and need not
be answered. Aside from this, the PHIC Arbitration Department correctly observed that the written interrogatories were
mistakenly addressed to the President and CEO of PHIC, who could not competently answer, either based on his job description
or firsthand experience, issues that arose from and related to the filing and processing of claims. We likewise find as self-serving
the allegation of OLLH that its representatives were denied access to the documents pertaining to the subject PhilHealth claim
and, at the same time, were not allowed to talk to any of the PhilHealth personnel. No iota of evidence, documentary or
testimonial, was submitted to substantiate this convenient excuse.
 REPUBLIC OF THE PHILIPPINES vs. FE ROA GIMENEZ AND IGNACIO B. GIMENEZ
G.R. No. 174673
January 11, 2016

TOPIC: Demurrer to evidence in civil cases

FACTS:
The Republic, through the Presidential Commission on Good Government (PCGG), instituted a Complaint for
Reconveyance, Reversion, Accounting, Restitution and Damages against the Gimenez Spouses before the Sandiganbayan. "The
Complaint seeks to recover . . . ill-gotten wealth . . . acquired by the Gimenez Spouses as dummies, agents, or nominees of
former President Ferdinand E. Marcos and Imelda Marcos. Documentary and testimonial evidences were presented by the
Republic and accordingly, the Sandiganbayan gave the Republic 30 days or until March 29, 2006 "to file its formal offer of
evidence. However, despite the repeated extensions and the lapse of 75 days from the date of the termination of the
presentation of evidence, Republic failed to submit its Formal Offer of Evidence. The Sandiganbayan issued a Resolution
declaring that the Republic waived the filing of its Formal Offer of Evidence.

On May 2006, Ignacio Gimenez filed a Motion to Dismiss on Demurrer to Evidence. He argued that the Republic showed
no right to relief as there was no evidence to support its cause of action. Later, Fe Roa Gimenez filed a Motion to Dismiss on
the ground of failure to prosecute. Through her own Motion to Dismiss, she joined Ignacio Gimenez’s demurrer to evidence.
Two days after Fe Roa Gimenez’s filing of the Motion to Dismiss, the Republic filed a Motion for Reconsideration [of the first
assailed Resolution] and to Admit Attached Formal Offer of Evidence. The Sandiganbayan on its second Resolution denied the
Republic’s Motion for Reconsideration and granted the Gimenez Spouses’ Motion to Dismiss. Hence, this petition. The Republic
contends, among others, that the Sandiganbayan erred when it granted the demurrer to evidence filed by respondents and
dismissed the case despite a "prima facie foundation (based on the pleadings and documents on record) that spouses
Gimenezes amassed enormous wealth grossly disproportionate to their lawful income or declared lawful assets."

ISSUE: Whether the Sandiganbayan erred in holding that petitioner Republic of the Philippines waived the filing of its
Formal Offer of Evidence and in granting respondents’ Motion to Dismiss on demurrer to evidence.

HELD:
Yes. The Sandigabayan erred in holding that the Republic waived the filing of its Formal Offer of Evidence and in granting
respondents’ Motion to Dismiss on demurrer to evidence. The Court ruled that, to erroneously grant a dismissal simply based
on the delay to formally offer documentary evidence essentially deprives one party of due process. Weighing the amount of
time spent in litigating the case against the number of delays petitioner incurred in submitting its Formal Offer of Evidence and
the state’s policy on recovering ill-gotten wealth, this court is of the belief that it is but only just that the Rules be relaxed and
petitioner be allowed to submit its written Formal Offer of Evidence. The Sandiganbayan’s Resolutions should be reversed.

Likewise, the court laid down the guidelines in resolving a demurrer to evidence:

A demurrer to evidence may be issued when, upon the facts and the law, the plaintiff has shown no
right to relief. Where the plaintiff’s evidence together with such inferences and conclusions as may reasonably
be drawn therefrom does not warrant recovery against the defendant, a demurrer to evidence should be
sustained. A demurrer to evidence is likewise sustainable when, admitting every proven fact favorable to the
plaintiff and indulging in his favor all conclusions fairly and reasonably inferable therefrom, the plaintiff has
failed to make out one or more of the material elements of his case, or when there is no evidence to support
an allegation necessary to his claim. It should be sustained where the plaintiff’s evidence is prima facie
insufficient for a recovery.

Furthermore, this court already clarified what the trial court determines when acting on a motion to dismiss based on
demurrer to evidence:

“What should be resolved in a motion to dismiss based on a demurrer to evidence is whether the
plaintiff is entitled to the relief based on the facts and the law. The evidence contemplated by the rule on
 demurrer is that which pertains to the merits of the case, excluding technical aspects such as capacity to sue. .
. .”

With our ruling reversing the Sandiganbayan’s Resolutions on petitioner’s Formal Offer of Evidence, what should be
determined now by the Sandiganbayan is whether petitioner’s evidence is sufficient to entitle it to the relief it seeks after the
Sandiganbayan rested its case. The Court ruled that the evidences presented by the petitioner is sufficient to establish a
presumption that respondents acquired ill-gotten wealth during respondent Fe Roa Gimenez’s incumbency as public officer
and which total amount or value was manifestly out of proportion to her and her husband’s salaries and to their other lawful
income or properties and that the Sandiganbayan brushed off the totality of evidence on which petitioner built its case.

Even assuming that no documentary evidence was properly offered, this court finds it clear from the second assailed
Resolution that the Sandiganbayan did not even consider other evidence presented by petitioner during the 19 years of trial.
The Sandiganbayan erred in ignoring petitioner’s testimonial evidence without any basis or justification. Numerous exhibits
were offered as part of the testimonies of petitioner’s witnesses.

A liberal application of the Rules is in line with the state’s policy to recover ill-gotten wealth. In case of doubt, courts
should proceed with caution in granting a motion to dismiss based on demurrer to evidence. An order granting demurrer to
evidence is a judgment on the merits. This is because while a demurrer "is an aid or instrument for the expeditious termination
of an action," it specifically "pertains to the merits of the case." To reiterate, "[d]emurrer to evidence authorizes a judgment
on the merits of the case without the defendant having to submit evidence on his [or her] part, as he [or she] would ordinarily
have to do, if plaintiff’s evidence shows that he [or she] is not entitled to the relief sought."The order of dismissal must be
clearly supported by facts and law since an order granting demurrer is a judgment on the merits.

DISCUSSION:

To determine the propriety of granting respondents’ Motion to Dismiss based on Demurrer to Evidence, we review the
nature of demurrer.

Rule 33, Section 1 of the Rules of Court provides:

SECTION 1. Demurrer to evidence.— After the plaintiff has completed the presentation of his evidence,
the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown
no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted
but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present
evidence.

In Oropesa v. Oropesa where this court affirmed the dismissal of the case on demurrer to evidence due to petitioner’s non-
submission of the Formal Offer of Evidence, demurrer to evidence was defined as:

. . . "an objection by one of the parties in an action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue." We have
also held that a demurrer to evidence "authorizes a judgment on the merits of the case without the defendant
having to submit evidence on his part, as he would ordinarily have to do, if plaintiff’s evidence shows that he
is not entitled to the relief sought."
 PAZ T. BERNARDO v. COURT OF APPEALS, et.al.
G.R. No. 119010
September 5, 1997

TOPIC: Demurrer to evidence in criminal cases

FACTS:
Bernardo was originally charged with four (4) counts of violation of BP 22 before the RTC of Q.C. Subsequently, two (2)
of the cases were dismissed due to the Affidavit of Desistance executed by private respondent Florlita, thus the remaining two
(2) cases were left to be disposed of by the trial court.

After presenting its last witness, the prosecution rested its case and formally offered its exhibits. After the prosecution
had formally offered its evidence, in open court, the counsel of the defense respectfully ask for leave of court to file demurrer
to evidence on the ground that the prosecutor failed to elicit facts where the checks were issued and where they were actually
dishonored. However, the prosecution objected and showed the properly marked exhibits and testimonial evidences for that
matter. In view of such objections, the court denied the grounds of the defense for demurrer. The defense, however, reiterated
that they will file their demurrer to evidence without leave of court and the court considered the motion dilatory. Further, the
court considered that the defense waived their right to present evidence and that the case is deemed submitted for decision.

Bernardo assailed the order of the respondent judge before the Court of Appeals by way of certiorari, prohibition and
mandamus. She argued that the trial court committed grave abuse of discretion in considering her to have waived her right to
present evidence after the denial of her motion for leave to file demurrer to evidence. The CA rendered a decision modifying
in effect the order of the lower court by directing the trial court to set the case for trial for reception of evidence for the
petitioner. Petitioner moved for partial reconsideration but was denied. Hence, this petition. The petitioner submits, among
others, that when the trial court denied her motion, it was in effect a denial only of the motion for leave to file demurrer to
evidence and not the demurrer to evidence itself and, therefore, the order of the respondent appellate court allowing
petitioner to present evidence was premature.

ISSUE: Whether or not the petitioner be allowed to present evidence after the denial of her motion for leave to file demurrer
to evidence.

HELD:
No. The Court ruled that the contention of the petitioner cannot be sustained. As the trial court observed, her move,
expressed through her counsel, was merely dilatory. But neither can the Court affirm the ruling of the CA since it is contrary to
the letter and spirit of Section 15, Rule 119 of the Rules of Court.

The Court further ruled that under the new rule on demurrer to evidence, the accused has the right to file a demurrer
to evidence after the prosecution has rested its case.If the accused obtained prior leave of court before filing his demurrer, he
can still present evidence if his demurrer is denied. However, if he demurs without prior leave of court, or after his motion for
leave is denied, he waives his right to present evidence and submits the case for decision on the basis of the evidence for the
prosecution. This power to grant leave to the accused to file a demurrer is addressed to the sound discretion of the trial court.
The purpose is to determine whether the accused in filing his demurrer is merely stalling the proceedings.

In the case at bar, petitioner admits that in the hearing, the trial court denied her motion for leave to file a demurrer
to evidence. In such case, the only right petitioner has under Section 15, Rule 119 of the Rules of Court after having been denied
leave to submit a demurrer is to adduce evidence in her defense. However, even without express leave of trial court, nay, after
her motion for leave was denied, petitioner insisted on a filing a demurrer instead of presenting evidence in her defense.

Once prior leave is denied and the accused still files his demurrer to evidence or motion to dismiss, the court no longer
has discretion to allow the accused to present evidence. The only recourse left for the court is to decide the case on the basis
of the evidence presented by the prosecution. And, unless there is grave abuse thereof amounting to lack or excess of
jurisdiction, which is not present in the instant case, the trial courts denial of prior leave to file demurrer to evidence or motion
to dismiss may not be disturbed.
G.R. No. 138739 July 6, 2000

RADIOWEALTH FINANCE COMPANY, petitioner, vs. Spouses VICENTE and MA. SUMILANG DEL
ROSARIO, respondents.

DOCTRINE: When a demurrer to evidence granted by a trial court is reversed on appeal, the reviewing court cannot remand the
case for further proceedings. Rather, it should render judgment on the basis of the evidence proffered by the plaintiff.

FACTS: Spouses Del Rosario jointly and severally executed, signed and delivered in favor of Radiowealth Finance Company a
Promissory Note for P138,948. The spouses defaulted on the monthly installments and despite repeated demands, they failed
to pay their obligations. Radiowealth then filed a Complaint for the collection of a sum of money. During the trial, the credit and
collection officer of Radiowealth presented in evidence the check payments, the demand letters, the customer’s ledger card for
the spouses and dishonor slips. The officer admitted that he did not have personal knowledge of the transaction or the execution
of any of these pieces of documentary evidence, which had merely been endorsed to him.

RTC: The trial court issued an Order terminating the presentation of evidence for Radiowealth. Thus, Radiowealth formally
offered its evidence and exhibits and rested its case. The spouses filed a Demurrer to Evidence for alleged lack of cause of
action. The RTC dismissed the complaint for failure of Radiowealth to substantiate its claims, the evidence it had presented being
merely hearsay.
CA: The CA reversed the trial court and remanded the case for further proceedings. Hence, this present petition for review on
certiorari.
ISSUE: WON the CA patently erred in ordering the remand of this case to the trial court instead of rendering judgment on the
basis of Radiowealth’s evidence
HELD: Yes.
The old Rule 35 of the Rules of Court was reworded under Rule 33 of the 1997 Rules, but the consequence on appeal of a
demurrer to evidence was not changed.
Explaining the consequence of a demurrer to evidence, the Court in Villanueva Transit v. Javellana pronounced:

The rationale behind the rule and doctrine is simple and logical. The defendant is permitted, without waiving his right to offer
evidence in the event that his motion is not granted, to move for a dismissal (i.e., demur to the plaintiffs evidence) on the
ground that upon the facts as thus established and the applicable law, the plaintiff has shown no right to relief. If the trial
court denies the dismissal motion, i.e., finds that plaintiffs evidence is sufficient for an award of judgment in the absence of
contrary evidence, the case still remains before the trial court which should then proceed to hear and receive the defendant’s
evidence so that all the facts and evidence of the contending parties may be properly placed before it for adjudication as well
as before the appellate courts, in case of appeal. Nothing is lost. The doctrine is but in line with the established procedural
precepts in the conduct of trials that the trial court liberally receive all proffered evidence at the trial to enable it to render its
decision with all possibly relevant proofs in the record, thus assuring that the appellate courts upon appeal have all the
material before them necessary to make a correct judgment, and avoiding the need of remanding the case for retrial or
reception of improperly excluded evidence, with the possibility thereafter of still another appeal, with all the concomitant
delays. The rule, however, imposes the condition by the same token that if his demurrer is granted by the trial court, and the
order of dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf and he shall have been
deemed to have elected to stand on the insufficiency of plaintiff’s case and evidence. In such event, the appellate court which
reverses the order of dismissal shall proceed to render judgment on the merits on the basis of plaintiff’s evidence.

In other words, defendants who present a demurrer to the plaintiff’s evidence retain the right to present their own evidence, if the
trial court disagrees with them; if the trial court agrees with them, but on appeal, the appellate court disagrees with both of them
and reverses the dismissal order, the defendants lose the right to present their own evidence. The appellate court shall, in
addition, resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations.
In the case at bar, the trial court, acting on the spouses’ demurrer to evidence, dismissed the Complaint on the ground that
Radiowealth had adduced mere hearsay evidence. However, on appeal, the appellate court reversed the trial court because the
genuineness and the due execution of the disputed pieces of evidence had in fact been admitted by the spouses. Applying Rule
33, Section 1 of the 1997 Rules of Court, the CA should have rendered judgment on the basis of the evidence submitted by the
petitioner. In fact, the CA had sufficient evidence on record to decide the collection suit. A remand is not only frowned upon by
the Rules, it is also logically unnecessary on the basis of the facts on record.
G.R. No. 186001 October 2, 2009
ANTONIO CABADOR, vs. PEOPLE OF THE PHILIPPINES,
DOCTRINE: To determine whether the pleading filed is a demurer to evidence or a motion to dismiss, the Court must consider
(1) the allegations in it made in good faith; (2) the stage of the proceeding at which it is filed; and (3) the primary objective of the
party filing it.
FACTS: The public prosecutor accused Cabador before the RTC of Quezon City of murdering, in conspiracy with others, Atty.
Valerio. After presenting only five witnesses over five years of intermittent trial, the RTC declared at an end the prosecution’s
presentation of evidence and required the prosecution to make a written or formal offer of its documentary evidence within 15
days from notice. The public prosecutor, however, asked for three extensions of time, the last of which was to end on July 28,
2006. Still, the prosecution did not make the required written offer.
Cabador then filed a motion to dismiss the case, complaining of a turtle-paced proceeding since his arrest and detention in 2001
and invoking his right to a speedy trial. Unknown to Cabador, four days earlier or on July 28, 2006, the prosecution asked the
RTC for another extension of the period for its formal offer, which offer it eventually made on August 1, 2006, the day Cabador
filed his motion to dismiss.
RTC: The RTC issued an Order treating Cabador’s motion to dismiss as a demurrer to evidence. And, since he filed his motion
without leave of court, the RTC declared him to have waived his right to present evidence in his defense. The trial court deemed
the case submitted for decision. Cabador filed a motion for reconsideration but it was denied.
CA: The CA denied Cabador’s petition and affirmed the lower court’s actions. Hence, the present petition for review on certiorari.
ISSUE: WON Cabador’s motion to dismiss before the trial court was in fact a demurrer to evidence filed without leave of court,
with the result that he effectively waived his right to present evidence in his defense and submitted the case for decision insofar
as he was concerned
HELD: NO.
As the rule now stands, when the accused files a demurrer without leave of court, he shall be deemed to have waived the right
to present evidence and the case shall be considered submitted for judgment. In Enojas, Jr. v. Commission on Elections, the
Court held that, to determine whether the pleading filed is a demurer to evidence or a motion to dismiss, the Court must consider
(1) the allegations in it made in good faith; (2) the stage of the proceeding at which it is filed; and (3) the primary objective of the
party filing it.
Here, the pertinent portions of Cabador’s motion to dismiss shows that he took pains to point how trial in the case had painfully
dragged on for years. The gaps between proceedings were long, with hearings often postponed because of the prosecutor’s
absence. This was further compounded, Cabador said, by the prosecutions repeated motions for extension of time to file its
formal offer and its failure to file it within such time.
In criminal cases, a motion to dismiss may be filed on the ground of denial of the accused’s right to speedy trial. This denial is
characterized by unreasonable, vexatious, and oppressive delays without fault of the accused, or by unjustified postponements
that unreasonably prolonged the trial. The fact is that Cabador did not even bother to do what is so fundamental in any
demurrer. He did not state what evidence the prosecution had presented against him to show in what respects such
evidence failed to meet the elements of the crime charged. His so-called demurrer did not touch on any particular
testimony of even one witness. He cited no documentary exhibit. Indeed, he could not because, he did not know that
the prosecution finally made its formal offer of exhibits on the same date he filed his motion to dismiss.
Besides, a demurrer to evidence assumes that the prosecution has already rested its case. Here, after the prosecution filed its
formal offer of exhibits, the same day Cabador filed his motion to dismiss, the trial court still needed to give him an opportunity
to object to the admission of those exhibits. It also needed to rule on the formal offer. And only after such a ruling could the
prosecution be deemed to have rested its case. Since Cabador filed his motion to dismiss before he could object to the
prosecution’s formal offer, before the trial court could act on the offer, and before the prosecution could rest its case, it could not
be said that he had intended his motion to dismiss to serve as a demurrer to evidence.
 G.R. No. 213286, August 26, 2015
MAMERTA LOPEZ CLAUDIO, EDUARDO L. CLAUDIO, ASUNCION CLAUDIO-CONTEGINO, ANA CLAUDIO-ISULAT, DOLORES
CLAUDIO-MABINI, AND FERMIN L. CLAUDIO, Petitioners, v.SPOUSES FEDERICO AND NORMA SARAZA, Respondent.

TOPIC: Demurrer to Evidence

FACTS: Mamerta Lopez et. al., filed an action for annulment of sale, power of attorney and mortgage with prayer for
damages before the RTC against Florentino Claudio and Sps. Saraza. They allege that Florentino made it appear that his parents
sold to him the lot subject of the action through an Absolute Deed of Sale. Furthermore, they allege that the signatures of the
vendors were forged. Later on, Florentino executed a deed of real estate mortgage in favor of the Sps. Saraza to secure his loan
from them. That Sps. Saraza were mortgagees in bad faith because they knew fully well that Florentino could not have acquired
the subject property from his parents because Porfirio had long been deceased on May 31, 1997 while Mamerta was in the
United States of America at the time of the alleged sale and lastly, that it was only a few days after the execution of the
mortgage that the TCT under Florentino’s name was issued.

Sps. Saraza filed a Demurrer to Evidence after the presentation of the evidence in chief of the prosecution which was
granted. Dissatisfied, the plaintiffs went to the CA which affirmed the RTC’s decision.

ISSUE: Whether or not the demurrer to evidence should be granted

HELD: NO. A demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence and is filed after
the plaintiff rests his case. It is an objection by one of the parties in an action to the effect that the evidence, which his adversary
produced, is insufficient in point of law, whether true or not, to make out a case or sustain the issue. In the case at bench, the
petitioners' evidence, together with such inferences and conclusions as may be reasonably drawn therefrom, amply supports
the allegations in their complaint necessary to their claim against Spouses Saraza. The evidence in chief of the petitioner clearly
made out a very strong case against them which would warrant recovery from them.

The evidence proffered by the petitioners tends to show that the deed of absolute sale was a forgery because the
alleged vendor, Porfirio, was already dead at the time of the purported sale on June 10, 2004. In the certificate of death
submitted by the petitioners, it appears that Porfirio died on May 31, 1997 in Glendora, Los Angeles, U.S.A. It is a well-
entrenched rule that a forged or fraudulent deed is a nullity and conveys no title.

All told, the Court holds that the petitioners' evidence, standing alone and in the absence of controverting evidence,
would afford sufficient basis for a judgment in their favor and against Spouses Saraza. Despite the fact that Spouses Saraza are
deemed to have waived their right to present evidence before the RTC pursuant to Section 1, Rule 33 of the Rules of Court, still
this disposition is without prejudice to the judgment on the merits to be handed down by the RTC.
 [ GR No. 191849, Sep 23, 2015 ]
FREDERICK F. FELIPE v. MGM MOTOR TRADING CORPORATION +
RESOLUTION

TOPIC: Demurrer to Evidence

FACTS: In this Complaint for Specific Performance and Damages against MGM Motors, and Ayala General Insurance
Corporation, Felipe claims that he purchased on installment basis a Nissan Terrano Wagon through MGM Motors' authorized
representative Jane Sarmiento (Sarmiento). He allegedly paid 200,000 pesos as downpayment and P5,000.00 reservation fee
to Sarmiento. He further issued seven (7) Allied Bank checks, each bearing the amount of P24,165.00 payable to MGM Motors.
After it was delivered to him, he insured it with Ayala Insurance. However, the vehicle was reportedly stolen while parked in
Adriatico Street. As a result, he tried to claim from Ayala Insurance but it was refused. On the other hand, despite his repeated
demands, MGM Motors refused to issue him the document of sale on installment.

In its Answer, MGM stated that it offered Felipe a discount of 200k if he would pay in cash but since the latter failed to
pay in cash, MGM did not give him the registration papers. Also, MGM Motors stated that petitioner was able to fraudulently
register the vehicle with the Land Transportation Office in his name and insure the same with Ayala Insurance. During a
negotiation, MGM and Felipe agreed to the amount of 1,020,000 as full payment and as a consequence, Felipe’s mother issued
a post dated check in such amount but it bounced. A case for BP 22 was filed against Felipe’s mother.

During the trial of this case, Only two pieces of evidence were admitted by the trial court: (1) the Official Receipt dated
7 May 1998 issued by MGM Motors wherein it acknowledged receipt of P200,000.00 from petitioner; and (2) the testimony of
his father Alberto that he was present when petitioner paid P200,000.00 to MGM Motors.

NOTE: Felipe’s testimony was stricken off the records because he failed to return, despite numerous opportunities, to
the witness stand for cross-examination.

MGM Motors and Ayala Insurance filed their respective Motions to Dismiss on demurrer to evidence. The RTC granted
it and dismissed the case. This was likewise affirmed by the CA. Felipe now filed this Petition for Review on Certiorari with the
SC.

ISSUE: Whether or not the demurrer to evidence was correctly granted

HELD: Yes. The essential question to be resolved in a demurrer to evidence is whether the plaintiff has been able to
show that he is entitled to his claim, and it is incumbent upon the trial court judge to make such a determination.

Well-established is the rule that the burden of proof lies on the party who makes the allegations. There is no dispute
that the only pieces of evidence admitted in court are the testimony of Alberto and the receipt showing MGM Motors receiving
P200,000.00 from petitioner as partial payment of the subject car. The allegation that the purchase of the vehicle was on an
installment basis was not supported by any evidence. The receipt of a partial payment does not suffice to prove that the
purchase was made on an installment basis. Petitioner did not present any document to prove said allegation while MGM
Motors produced a sales invoice wherein it was stated that the mode of payment is "COD" or cash on delivery.

In the same vein, petitioner failed to substantiate his allegation against Ayala Insurance. Petitioner has the burden of
proof to show that a loss occurred and said loss was covered by his insurance policy. Considering that the trial court only
admitted two pieces of evidence in petitioner's favor and none of those tend to prove loss of the subject car and coverage
thereof under the insurance policy, petitioner is not entitled to the reliefs he had prayed for.
CONCEPCION CUENCO VDA. DE MANGUERRA - versus -
RAUL RISOS, SUSANA YONGCO, LEAH ABARQUEZ and ATTY. GAMALIEL D.B. BONJE,

Topic: Depositions| Rule 23

Doctrine: There can be no deposition taking under Rule 23 in criminal cases, instead 12, 14, and 15 of the Rule119 applies.
Facts:
Respondents were charged with Estafa Through Falsification of Public Document before the RTC of Cebu City.

Concepcion, who was a resident of Cebu City, while on vacation in Manila, was unexpectedly confined at the Makati Medical
Center due to upper gastro-intestinal bleeding; and was advised to stay in Manila for further treatment. The counsel
of Concepcion filed a motion to take the latter’s deposition. He explained the need to perpetuate Concepcion’s testimony due to
her weak physical condition and old age, which limited her freedom of mobility.

RTC granted the motion and directed that Concepcion’s deposition be taken before the Clerk of Court of Makati City. The
respondent’s motion for reconsideration was denied by the trial court. After several motions for change of venue of the deposition-
taking, Concepcion’s deposition was finally taken at her residence.

Aggrieved, respondents assailed the RTC orders in a special civil action for certiorari before the CA. The CA decided in their
favor.The CA resolved the matter on its merit, declaring that the examination of prosecution witnesses, as in the present case,
is governed by Section 15, Rule 119 of the Revised Rules of Criminal Procedure and not Rule 23 of the Rules of Court. The latter
provision, said the appellate court, only applies to civil cases. Pursuant to the specific provision of Section 15, Rule
119, Concepcion’s deposition should have been taken before the judge or the court where the case is pending, which is the RTC
of Cebu, and not before the Clerk of Court of Makati City; and thus, in issuing the assailed order, the RTC clearly committed
grave abuse of discretion.

CA also denied petitioner’s motion for reconsideration. Hence, the instant petition

Issue:

WHETHER OR NOT RULE 23 OF THE 1997 RULES OF CIVIL PROCEDURE APPLIES TO THE DEPOSITION OF
PETITIONER.

Ruling:

No.

In the case at bench, in issue is the examination of a prosecution witness, who, according to the petitioners, was too sick to travel
and appear before the trial court. Section 15 of Rule 119 thus comes into play. Petitioners contend that Concepcions advanced
age and health condition exempt her from the application of Section 15, Rule 119 of the Rules of Criminal Procedure, and thus,
calls for the application of Rule 23 of the Rules of Civil Procedure. The contention does not persuade.

The very reason offered by the petitioners to exempt Concepcion from the coverage of Rule 119 is at once the ground which
places her squarely within the coverage of the same provision. Rule 119 specifically states that a witness may be conditionally
examined: 1) if the witness is too sick or infirm to appear at the trial; or 2) if the witness has to leave the Philippines with no
definite date of returning. Thus, when Concepcion moved that her deposition be taken, had she not been too sick at that time,
her motion would have been denied. Instead of conditionally examining her outside the trial court, she would have been
compelled to appear before the court for examination during the trial proper.

Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus required that the conditional examination
be made before the court where the case is pending. It is also necessary that the accused be notified, so that he can attend the
examination, subject to his right to waive the same after reasonable notice. As to the manner of examination, the Rules mandate
that it be conducted in the same manner as an examination during trial, that is, through question and answer. Contrary to
petitioners contention, there is nothing in the rule which may remotely be interpreted to mean that such requirement applies only
to cases where the witness is within the jurisdiction of said court and not when he is kilometers away, as in the present
case. When the words are clear and categorical, there is no room for interpretation. There is only room for application.

Petitioners further insist that Rule 23 applies to the instant case, because the rules on civil procedure apply suppletorily to criminal
cases.

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal,
and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However,
it is likewise true that the criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering
that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23
suppletorily or otherwise.
ALLIED AGRI-BUSINESS DEVELOPMENT CO., INC., vs. COURT OF APPEALS and CHERRY VALLEY FARMS
LIMITED, respondents.

Topic: Admission by adverse party | Rule 26

Doctrine: The burden of affirmative action is on the party upon whom notice is served to avoid the admission rather than upon
the party seeking the admission. Hence, when petitioner failed to reply to a request to admit, it may not argue that the adverse
party has the burden of proving the facts sought to be admitted. Petitioners silence is an admission of the facts stated in the
request.

Facts:
CHERRY VALLEY, a foreign company based in England, filed against petitioner ALLIED a complaint with the RTC for collection
of sum of money for the purchase price of 10 separate orders of several duck hatching eggs and ducklings which were unpaid
despite repeated demands. Instead of paying its obligation, it is alleged that ALLIED through its president wrote CHERRY
VALLEY inviting the latter to be a stockholder in a new corporation to be formed by ALLIED, which invitation however was
rejected by CHERRY VALLEY. It is also alleged that ALLIED's president Ricardo Quintos expressly acknowledged through a
letter the obligation of his corporation to CHERRY VALLEY.
ALLIED filed an answer denying the material allegations of the complaint. CHERRY VALLEY served on ALLIEDs counsel a
Request for Admission worded as follows:
(a) that for a period of six (6) months starting from 1 September 1982, petitioner ordered and received from respondent CHERRY VALLEY
duck eggs and ducklings amounting to 51,245.12; (b) that petitioner received a letter dated 22 March 1985 from private respondents lawyer
demanding payment of the amount of the purchases; (c) that instead of paying the obligation to respondent CHERRY VALLEY, petitioners
president Ricardo Quintos sent a letter to the former proposing the establishment of a new corporation with CHERRY VALLEY as one of the
stockholders; (d) that the proposal was refused by the Director of CHERRY VALLEY; and, (e) that petitioners president Ricardo Quintos
admitted the indebtedness of his corporation to CHERRY VALLEY in the sum of English Sterling Pounds 51,245.12.

ALLIED filed its Comments/Objections alleging that (a) the admissions requested were matters which the private respondent had the
burden to prove through its own witness during the trial and thus petitioner need not answer; and, (b) the request for admission regarding the
ownership set-up of petitioner corporation was immaterial and improper for not having been pleaded in the complaint.

CHERRY VALLEY filed a Reply to those Comments/Objections to Request for Admission. The trial court issued an
Order disregarding ALLIEDs Comments/Objections to Request for Admission in view of its non-compliance with Sec. 2, Rule 26,
of the Rules of Court and directing ALLIED to answer the request for admission within ten (10) days from receipt of the order,
otherwise, the matters contained in the request would be deemed admitted. ALLIED filed an MR but is was denied, and the lower
court directed the latter to answer the request for admission within a nonextendible period of five (5) days from receipt of the
order.
ALLIED failed to submit a sworn answer to the request for admission within the additional period of five (5) days granted by the
trial court. Hence, CHERRY VALLEY filed a motion for summary judgment[7] alleging that there was already an implied admission
on the matters requested for admission pursuant to Rule 26 of the Rules of Court.
The trial court rendered judgment against petitioner. ALLIED appealed to the Court of Appeals. CA affirmed the summary
judgement. Hence, the instant petition.

Issue:
Whether or not the failure to answer the request for admission resulted in the admission of the matters stated in the request

Ruling:
Yes.
Each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the
request which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on
motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement
either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.
Upon service of request for admission, the party served may do any of the following acts: (a) he may admit each of the matters
of which an admission is requested, in which case, he need not file an answer; (b) he may admit the truth of the matters of which
admission is requested by serving upon the party requesting a written admission of such matters within the period stated in the
request, which must not be less than ten (10) days after service, or within such further time as the court may allow on motion and
notice; (c) he may file a sworn statement denying specifically the matter of which an admission is requested; or, (d) he may file
a sworn statement setting forth in detail the reasons why he cannot truthfully either admit or deny the matters of which an
admission is requested.
The records show that although petitioner filed with the trial court its comments and objections to the request for admission
served on it by private respondent, the trial court disregarded the objections and directed petitioner after denying its motion for
reconsideration, to answer the request within five (5) days from receipt of the directive; otherwise, the matters of which the
admission was requested would be deemed admitted. Petitioner failed to submit the required answer within the period. The
matter set forth in the request were therefore deemed admitted by petitioner, i.e., (a) that for a period of six (6) months starting
from 1 September 1982, petitioner ordered and received from respondent CHERRY VALLEY duck eggs and ducklings amounting
to 51,245.12; (b) that petitioner received a letter dated 22 March 1985 from private respondents lawyer demanding payment of
the amount of the purchases; (c) that instead of paying the obligation to respondent CHERRY VALLEY, petitioners president
Ricardo Quintos sent a letter to the former proposing the establishment of a new corporation with CHERRY VALLEY as one of
the stockholders; (d) that the proposal was refused by the Director of CHERRY VALLEY; and, (e) that petitioners president
Ricardo Quintos admitted the indebtedness of his corporation to CHERRY VALLEY in the sum of English Sterling Pounds
51,245.12.
The burden of affirmative action is on the party upon whom notice is served to avoid the admission rather than upon the party
seeking the admission. Hence, when petitioner failed to reply to a request to admit, it may not argue that the adverse party has
the burden of proving the facts sought to be admitted. Petitioners silence is an admission of the facts stated in the request.
This Court finds that the motion for summary judgment filed by respondent CHERRY VALLEY on the ground that there were no
questions of fact in issue since the material allegations of the complaint were not disputed was correctly granted by the trial
court. It is a settled rule that summary judgment may be granted if the facts which stand admitted by reason of a partys failure to
deny statements contained in a request for admission show that no material issue of fact exists. [16] By its failure to answer the
other partys request for admission, petitioner has admitted all the material facts necessary for judgment against itself.
Philippine Bank of Communications vs. Go
G.R. No. 175514. February 14, 2011.

Topic: Summary judgment

Facts:

Jose Go obtained two loans from PBCom, evidenced by two promissory notes, embodying his commitment to pay
P17,982,222.22 for the first loan, and P80 million for the second loan, within a ten-year period from September 30, 1999
to September 30, 2009. To secure the loans, he executed pledge agreements covering the shares of stock of Ever
Gotesco Resources and Holdings, Inc. Two years later, however, the market value of the said shares of stock plunged
to less than P0.04 per share. Thus, PBCom, as pledgee, notified Go in writing that it was renouncing the pledge
agreements. Later, PBCom filed before the RTC a complaint for some of money against the Spouses Go. PBCom alleged
that Spouses Go defaulted on the two promissory notes, having paid only three installments on interest payments—
covering the months of September, November and December 1999. Consequently, the entire balance of the obligations
of Go became immediately due and demandable. Spouses Go filed their Answer with Counterclaim denying the material
allegations in the complaint and stating (1) the loan obligation is payable within the period of 10 years so it is not yet
due and demandable; (2) they made substantial payments so there is a need for accounting; and (3) there was no prior
demand.

PBCom filed a Motion for Summary Judgment alleging that the Answer interposed no specific denials on the material
averments in paragraphs 8 to 11 of the complaint such as the fact of default, the entire amount being already due and
demandable by reason of default, and the fact that the bank had made repeated demands for the payment of the
obligations. The RTC granted the Motion and rendered its judgment ordering the Spouses Go to pay the obligation.

The Court of Appeals reversed the RTC. It found the supposed admission (as found by the RTC) to be insufficient to
justify a rendition of summary judgment in the case for sum of money, since there were other allegations and defenses
put up by Spouses Go in their Answer which raised genuine issues on the material facts in the action.

Hence, this petition.

Issue:

Whether or not a Summary Judgment was proper?

Held:

No. The CA correctly ruled that there exist genuine issues as to three material facts, which have to be addressed during
trial: first, the fact of default; second, the amount of the outstanding obligation, and third, the existence of prior demand.

Under Rule 35 of the 1997 Rules of Procedure, except as to the amount of damages, when there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as a matter of law, summary judgment may be allowed.
Summary or accelerated judgment is a procedural technique aimed at weeding out sham claims or defenses at an early
stage of litigation thereby avoiding the expense and loss of time involved in a trial.

Under the Rules, summary judgment is appropriate when there are no genuine issues of fact which call for the
presentation of evidence in a full- blown trial. Even if on their face the pleadings appear to raise issues, when the
affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed
by the Rules must ensue as a matter of law. The determinative factor, therefore, in a motion for summary judgment, is
the presence or absence of a genuine issue as to any material fact.

A “genuine issue” is an issue of fact which requires the presentation of evidence as distinguished from a sham,
fictitious, contrived or false claim. When the facts as pleaded appear uncontested or undisputed, then there is no real
or genuine issue or question as to he facts, and summary judgment is called for. The party who moves for summary
judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in
the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. Trial courts have limited authority
to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. When
the facts as pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the place
of trial.

Juxtaposing the Complaint and the Answer discloses that the material facts here are not undisputed so as to call for
the rendition of a summary judgment. While the denials of Spouses Go could have been phrased more strongly or more
emphatically, and the Answer more coherently and logically structured in order to overthrow any shadow of doubt that
such denials were indeed made, the pleadings show that they did in fact raise material issues that have to be addressed
and threshed out in a full-blown trial. The matters in contention are, as the CA stated, whether or not respondents were
in default, whether there was prior demand, and the amount of the outstanding loan. These are the matters that the
parties disagree on and by which reason they set forth vastly different allegations in their pleadings which each will
have to prove by presenting relevant and admissible evidence during trial.
Adolfo vs. Adolfo
G.R. No. 201427. March 18, 2015.

Topic: Summary judgment

Facts:

[MAIN CASE] Civil Case No. MAN-4821 – In 2004, Teofilo Adolfo filed with the RTC Mandaue a Petition for judicial
separation of property against his estranged wife, respondent Fe Adolfo. He alleged that the two are married and that
during their marriage, they acquired through conjugal funds Lot 1087-A-2-E, a 3,652-square-meter property (the subject
property). However, due to irreconcilable differences and since reunion is no longer possible, he prays for a decree of
separation of conjugal property. In her Answer, respondent contended that while she remained married to petitioner,
she is the sole owner of the subject property, the same being her paraphernal property which she inherited from her
mother. She thus prayed for the petition to be dismissed.

[OTHER CASE] Civil Case No. MAN-2683 – In 1996, respondent’s sister, Florencia Tudtud and her husband (Spouses
Gingoyons), filed a case for partition with damages against respondent. The Complaint alleged that the respondent
executed a deed of sale in favor of Spouses Gingoyons over a 300-square-mater portion of the subject property but she
refused to partition/subdivide the same despite payment. For her defense, respondent claimed in her Answer that when
the sale was made, the subject property constituted conjugal property of her marriage with petitioner; since petitioner
did not sign the deed of sale as he knew nothing about the sale, the sale was null and void. The trial court ruled that the
subject property constituted conjugal property of the marriage. Thus, it nullified the deed of sale. This case was the
subject of an appeal with the CA, which was docketed as C.A.-G.R. CV No. 78971.

[MAIN CASE] During the pretrial conference, petitioner submitted as evidence the copies of the Complaint, the
respondent’s answer and the Decision in Civil Case No. Man-2683. Petitioner then filed a Request for Admission of the
genuineness and due execution of the copies of the Complaint, Answer and Decision. Respondent failed to file her
response to the request for admission. Consequently, petitioner filed a Motion for Judgment Based on the Pleadings
stating that since respondent failed to answer his request for admission, the matters contained in the request are
deemed admitted; that as a consequence of the application of the rule, respondent is in effect considered to have
admitted that the subject property is a conjugal asset of their subsisting marriage which may thus be the subject of his
petition for judicial separation of property; and that on account of said admission, a hearing on the merits becomes
unnecessary. The trial court then directed the transfer of the case to Branch 55 (the court which decided Civil Case No.
MAN-2683). Branch 55 then granted petitioner’s Motion; it treated the Motion for Judgment on the Pleadings as one for
Summary Judgment. It held that the failure of respondent to respond to the Request for Admission was an admission
that Lot 1087-A-2-E is a conjugal property, thus, petitioner is entitled for partition. Respondent appealed the case to the
CA docketed as C.A.-G.R. CV No. 01783.

[OTHER CASE] C.A.-G.R. CV No. 78971: The CA reversed the RTC and declared that the subject property was
respondent’s paraphernal property. It ordered the partition of the property. This decision became final and executory.

[MAIN CASE] C.A.-G.R. CV No. 01783: The CA held that the trial court cannot treat petitioner’s motion for judgment on
the pleadings as one for summary judgment. It then remanded the case back to the RTC. The petitioner then filed a
petition for review before the SC.

Issue:
Whether or not the trial court erred in rendering a summary judgment on Civil Case No. MAN-4821 despite the pendency
of the appeal in Civil Case No. MAN-2683?

Held:

Yes.

Judgment on the pleadings is proper “where an answer fails to tender an issue, or otherwise admits the material
allegations of the adverse party’s pleading.” Summary judgment, on the other hand, will be granted “if the pleadings,
supporting affidavits, depositions, and admissions on file, show that, except as to the amount of damages, there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious
character, on the other, are what distinguish a proper case for summary judgment from one for a judgment on the
pleadings. In a proper case for judgment on the pleadings, there is no ostensible issue at all because of the failure of
the defending party’s answer to raise an issue. On the other hand, in the case of a summary judgment, issues apparently
exist — i.e., facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification;
or specific denials or affirmative defenses are in truth set out in the answer — but the issues thus arising from the
pleadings are sham, fictitious or not genuine, as shown by affidavits, depositions, or admissions.

In rendering summary judgment, the trial court relied on respondent’s failure to reply to petitioner’s request for
admission, her admission in Civil Case No. MAN-2683, as well as its May 15, 2002 Decision declaring that the subject
property is a conjugal asset. It took judicial notice of the proceedings in said case. While there is nothing irregular with
this — as courts may “take judicial notice of a decision or the facts prevailing in another case sitting in the same court,
the trial court however disregarded the fact that its decision was then the subject of a pending appeal in C.A.- G.R. CV
No. 78971. It should have known that until the appeal is resolved by the appellate court, it would be premature to render
judgment on petitioner’s motion for judgment on the pleadings; that it would be presumptuous to assume that its own
decision would be affirmed on appeal. One of the issues raised in the appeal is precisely whether the subject property
is conjugal, or a paraphernal asset of the respondent. Thus, instead of resolving petitioner’s motion for judgment on
the pleadings, the trial court should have denied it or held it in abeyance.

On the part of petitioner, it must be said that he could not have validly resorted to a motion for judgment on the pleadings
or summary judgment. While it may appear that under Rules 34 and 35 of the 1997 Rules, he may file a motion for
judgment on the pleadings or summary judgment as a result of the consequent admission by respondent that the
subject property is conjugal, this is not actually the case. Quite the contrary, by invoking the proceedings and decision
in Civil Case No. MAN-2683, petitioner is precluded from obtaining judgment while the appeal in said case is pending,
because the result thereof determines whether the subject property is indeed conjugal or paraphernal. He may not
preempt the appeal in C.A.-G.R. CV No. 78971.

Finally, the Court notes that the appellate court overlooked the May 30, 2007 Decision in C.A.-G.R. CV No. 78971, which
became final and executory on June 23, 2007. Because of this, petitioner’s case is left with no leg to stand on. There
being no conjugal property to be divided between the parties, Civil Case No. MAN-4821 must be dismissed.
MENDEZONA vs. OZAMIZ [G.R. No. 143370. February 6, 2002]
TOPIC: Newly Discovered Evidence
FACTS: The petitioners alleged they own a parcel of land in Lahug, Cebu City covered in the TCT and that they
traced their titles of ownership over their respective properties from a notarized Deed of Absolute Sale executed
in their favor by Carmen Ozamiz. They initiated a suit for quieting of title to remove a cloud on their respective
titles caused by the inscription thereon of a notice of lis pendens, which came about as a result of an incident in
special proceeding for guardianship over the person and properties of Carmen Ozamiz initiated by the
respondents in the RTC.
Respondents instituted the petition for guardianship, alleging that Carmen Ozamiz, then 86 years old, after an
illness, had become disoriented and could no longer take care of herself nor manage her properties. Respondent
Paz O. Montalvan was designated as guardian over the person of Carmen Ozamiz while petitioner Mario
J. Mendezona, respondents Roberto J. Montalvan and Julio H. Ozamiz were designated as joint guardians over
the properties of the said ward. As guardians, respondents filed their inventories and accounts, listing therein
Carmen Ozamiz’s properties, including the said Lahug property.
In their Answer, the respondents opposed the petitioners claim of ownership of the Lahug property and alleged
that the titles issued in the petitioners names are defective and illegal, and the ownership of the said property
was acquired in bad faith and without value. Respondents further alleged that at the time of the sale,
Carmen Ozamiz was already ailing and not in full possession of her mental faculties.
Trial on the merits ensued. The trial court rendered its decision in favor of the petitioners. On appeal to the CA,
the appellate court reversed the factual findings of the trial court. Petitioners filed a motion for reconsideration of
the decision of the appellate court. Subsequent thereto, the petitioners filed a motion for a new trial and/or for
reception of evidence. They contended, among other things, that the appellate court totally ignored the testimony
of Judge Teodorico Durias regarding the mental condition of Carmen Ozamiz a month before the execution of
the Deed of Absolute Sale in question. The said testimony was taken in the special proceeding. However,
Judge Durias was not presented as a witness. Petitioners alleged that Judge Duriass testimony is a newly-
discovered evidence which could not have been discovered prior to the trial in the court below by the exercise
of due diligence. The appellate court denied both motions.
ISSUE: Whether to consider the testimony of Judge Durias as newly discovered evidence.
HELD: No. A motion for new trial upon the ground of newly discovered evidence is properly granted only where
there is concurrence of the following requisites, namely: (a) the evidence had been discovered after trial; (b) the
evidence could not have been discovered and produced during trial even with the exercise of reasonable
diligence; and (c) the evidence is material and not merely corroborative, cumulative or impeaching and is of such
weight that if admitted, would probably alter the result. All three (3) requisites must characterize the evidence
sought to be introduced at the new trial.
We find that the requirement of reasonable diligence has not been met by the petitioners. As early as the pre-
trial of the case at bar, the name of Judge Durias has already cropped up as a possible witness for the
defendants, herein respondents. That the respondents chose not to present him is not an indicia per se of
suppression of evidence, since a party in a civil case is free to choose who to present as his witness. Neither
can Judge Durias testimony in another case be considered as newly discovered evidence since the facts to be
testified to by Judge Durias which were existing before and during the trial, could have been presented by the
petitioners at the trial below. The testimony of Judge Durias has been in existence waiting only to be elicited
from him by questioning.
It has been held that a lack of diligence is exhibited where the newly discovered evidence was necessary or
proper under the pleadings, and its existence must have occurred to the party in the course of the preparation
of the case, but no effort was made to secure it; there is a failure to make inquiry of persons who were likely to
know the facts in question, especially where information was not sought from co-parties; there is a failure to seek
evidence available through public records; there is a failure to discover evidence that is within the control of the
complaining party; there is a failure to follow leads contained in other evidence; and, there is a failure to utilize
available discovery procedures. Thus, the testimony of Judge Durias cannot be considered as newly discovered
evidence to warrant a new trial.
CHUA v. PEOPLE OF THE PHILIPPINES G.R. No. 196853, July 13, 2015
TOPIC: Newly Discovered Evidence
FACTS : Chua issued several postdated PSBank checks to See pursuant to their rediscounting arrangement.
However, See claimed that when he deposited the checks, they were dishonored either due to insufficient funds
or closed account. Despite demands, Chua failed to make good the checks. See filed a complaint for violations
of BP 22. He attached thereto a demand letter. Chua was charged with 54 counts of violation of BP 22 before
the MeTC. The prosecution formally offered as its evidence the demand letter dated December 10, 1993. Chua,
however, objected to its admissibility on the grounds that it is a mere photocopy and that it does not bear any
proof that he actually received it. Chua filed a Motion to Submit Demurrer to Evidence. However, the MeTC failed
to act on his motion since the judge of said court vacated his post.

Several years later, the prosecution filed a Motion to Re-Open Presentation of Prosecution's Evidence and
Motion to Allow Prosecution to Submit Additional Formal Offer of Evidence. It averred that while See was still
trying to locate a demand letter dated November 30, 1993 which it alleged to have been personally served upon
Chua. However, See decided to have his house rented out such that he emptied it with all his belongings and
had it cleaned. It was during this time that he found the demand letter dated November 30, 1993. The prosecution
thus prayed that it be allowed to submit a supplemental offer of evidence to include said demand letter dated
November 30, 1993 as part of its evidence. Again, the records of the case bear no copy of an MeTC Order or
Resolution granting the aforesaid motion. Nevertheless, extant on records is a Formal Offer of Evidence filed by
the private prosecutor submitting the demand letter dated November 30, 1993 as additional evidence. MeTC
refused to take cognizance of the supplemental formal offer on the ground that the same was filed by the private
prosecutor without the conformity of the public prosecutor. Be that as it may, the demand letter dated November
30, 1993 eventually found its way into the records of this case. MeTC convicted Chua of 54 counts of violation
of BP 22. The RTC affirmed the ruling of the MeTC.

Before the CA, Chua argued against the probative value of the demand letter dated November 30, 1993 by
pointing out that: (1) for more than 10 years from the time the case was filed, the prosecution never adverted to
its existence. He thus surmised that this was because the document was not really missing but in fact inexistent
- a mere afterthought as to make it appear that the second element of the offense is obtaining in the case; (2)
the subject demand letter is not a newly discovered evidence as it could have been discovered earlier through
the exercise of due diligence; and, (3) his counsel's admission of the physical existence of the subject demand
letter and Chua's signature thereon does not carry with it the admission of its contents and his receipt of the
same. The CA likewise affirmed the decision of the lower court.

ISSUE: Whether or not the CA erred when it considered the demand letter dated November 30, 1993 as a newly
discovered evidence.

HELD: The question of whether evidence is newly discovered has two aspects: a temporal one, i.e., when was
the evidence discovered, and a predictive one, i.e., when should or could it have been discovered. It is to the
latter that the requirement of due diligence has relevance. We have held that in order that a particular piece of
evidence may be properly regarded as newly discovered to justify new trial, what is essential is not so much the
time when the evidence offered first sprang into existence nor the time when it first came to the knowledge of
the party now submitting it; what is essential is that the offering party had exercised reasonable diligence in
seeking to locate such evidence before or during trial but had nonetheless failed to secure it.

The Rules do not give an exact definition of due diligence, and whether the movant has exercised due diligence
depends upon the particular circumstances of each case. Nonetheless, it has been observed that the phrase is
often equated with "reasonable promptness to avoid prejudice to the defendant." In other words, the concept of
due diligence has both a time component and a good faith component. The movant for a new trial must not only
act in a timely fashion in gathering evidence in support of the motion; he must act reasonably and in good faith
as well. Due diligence contemplates that the defendant acts reasonably and in good faith to obtain the evidence,
in light of the totality of the circumstances and the facts known to him.

"Under the Rules of Court, the requisites for newly discovered evidence are: (a) the evidence was discovered
after trial; (b) such evidence could not have been discovered and produced at the trial with reasonable diligence;
and (c) it is material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted,
will probably change the judgment."
In this case, the Court holds that the demand letter dated November 30, 1993 does not qualify as a newly
discovered evidence within the purview of the law. Per See's statements in his affidavit, the said evidence was
already known to him at the time he filed his complaint against Chua. It was also apparently available considering
that it was just kept in his house. Undeniably, had See exercised reasonable diligence, he could have promptly
located the said demand letter and presented it during trial. However, the circumstances suggest otherwise.

Curiously, while See claims that the demand letter dated November 30, 1993 was already existing at the time
he filed the complaint, the same was not mentioned therein. Only the demand letter dated December 10, 1993
was referred to in the complaint, which per See's own allegations, was also not actually received by Chua. In
addition, the prosecution failed to present the original copy of the demand letter dated December 10, 1993 during
trial. Clearly on the basis of the demand letter dated December 10, 1993 alone, the prosecution cannot possibly
establish the existence of the second element of the offense. Indeed, the surrounding circumstances and the
doubtful character of the demand letter dated November 30, 1993 make it susceptible to the conclusion that its
introduction was a mere afterthought - a belated attempt to fill in a missing component necessary for the
existence of the second element of BP 22.