G.R. No.
217694, January 27, 2016
FAIRLAND KNITCRAFT
CORPORATION, Petitioner, v. ARTURO LOO PO, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari1 seeking to reverse and
set aside the October 31, 2014 Decision2and the March 6, 2015
Resolution3 of the Court of Appeals (CA), in CA-G.R. SP No.
134701 which affirmed the September 16, 2013 Decision4 of the
Regional Trial Court of Pasig City, Branch 67 (RTC) in SCA Case
No. 3831. The RTC decision, in turn, sustained the March 21,
2013 Decision5 of the Metropolitan Trial Court, Branch 72, Pasig
City (MeTC), which dismissed the unlawful detainer case filed by
petitioner Fairland Knitcraft Corporation (Fairland) against
respondent Arturo Loo Po (Po) for failure to prove its case by
preponderance of evidence.
The Antecedents
In a complaint6 for unlawful detainer, docketed as Civil Case No.
19429, filed before the MeTC, Fairland alleged that it was the
owner of Condominium Unit No. 205 in Cedar Mansion II on Ma.
Escriba Street, Pasig City. The said unit was leased by Fairland to
Po by verbal agreement, with a rental fee of P20,000.00 a month,
to be paid by Po at the beginning of each month. From March
2011, Po had continuously failed to pay rent. For said reason,
Fairland opted not to renew the lease agreement anymore.
On January 30, 2012, Fairland sent a formal letter7 to Po
demanding that he pay the amount of P220,000.00, representing
the rental arrears, and that he vacate the leased premises within
fifteen (15) days from the receipt of the letter. Despite receipt of
the demand letter and the lapse of the said 15-day period to
comply, Po neither tendered payment for the unpaid rent nor
vacated the premises. Thus, on December 12, 2012, Fairland was
constrained to file the complaint for unlawful detainer before the
MeTC. Po had until January 7, 2013 to file his answer but he
failed to do so. Hence, on February 6, 2013, Fairland filed a
motion to render judgment.8
In its February 21, 2013 Order,9 the MeTC considered the case
submitted for decision.
On March 1, 2013, Po's counsel filed his Entry of Appearance
with Motion for Leave of Court to file Comment/Opposition to
Motion to Render Judgment.10 In the attached
Comment/Opposition, Po denied the allegations against him and
commented that there was no supporting document that would
show that Fairland owned the property; that there was no lease
contract between them; that there were no documents attached
to the complaint which would show that previous demands had
been made and received by him; that the alleged unpaid rental
was P220,000.00, but the amount of damages being prayed for
was P440,000.00; that the issue in the case was one of ownership;
and that it was the RTC which had jurisdiction over the case.
The MeTC treated the comment/opposition as Po's answer to the
complaint. Considering, however, that the case fell under the
Rules of Summary Procedure, the same was deemed filed out of
time. Hence, the motion was denied.11
The Ruling of the Metropolitan Trial Court
In its March 21, 2013 Decision, the MeTC dismissed the
complaint for lack of merit due to Fairland's failure to prove its
claim by preponderance of evidence. The MeTC explained that
although the complaint sufficiently alleged a cause of action,
Fairland failed to prove that it was entitled to the possession of
the subject property. There was no evidence presented to
support its claim against Po either.
Aggrieved, Fairland seasonably filed its appeal before the RTC
under Rule 40 of the Rules of Court. Being an appealed case, the
RTC required the parties to submit their respective memoranda.
In its memorandum,12 Fairland argued that an unlawful detainer
case was a special civil action governed by summary procedure.
In cases where a defendant failed to file his answer, there was no
need for a declaration of default. Fairland claimed that the Rules
stated that in such cases, judgment should be based on the
"facts alleged in the complaint,"13 and that there was no
requirement that judgment must be based on facts proved by
preponderance of evidence. Considering that the presentation of
evidence was not required when a defendant in an ejectment
case failed to appear in a preliminary conference, the same
should be applied when no answer had been filed.
Fairland continued that the failure to file an answer in an
ejectment case was tantamount to an admission by the
defendant of all the ultimate facts alleged in the complaint. There
was no more need for evidence in such a situation as every
allegation of ultimate facts in the complaint was deemed
established by the defendant's acquiescence.
On July 18, 2013, Po filed his memorandum14 and countered that
there was no merit in Fairland's insistence that evidence was
unnecessary when no answer had been filed. The facts stated in
the complaint did not warrant a rendition of judgment in the
plaintiffs favor. The court had the discretion to rule on the
pleadings based on its evaluation of the allegation of facts.
Further, all the statements in the complaint were mere
allegations which were not substantiated by any competent
evidence. Po asserted that there was no proof presented to show
that the subject property was indeed owned by Fairland; that
there was no lease contract between the parties; that he never
received the demand letter, dated January 30, 2012; and that the
amount stated in the prayer of the complaint did not coincide
with the amount of unpaid rent. Po also reiterated that the case
involved an issue of ownership over the condominium unit he
was occupying.
The Ruling of the Regional Trial Court
On September 16, 2013, the RTC affirmed the MeTC ruling and
agreed that Fairland failed to establish its case by preponderance
of evidence. There was nothing on record that would establish
Fairland's right over the property subject of the complaint.
Though it had been consistently ruled that the only issue for
resolution in an ejectment case was the physical or material
possession of the property involved, independent of any claim of
ownership by any of the party-litigants, the court may go beyond
the question of physical possession provisionally. The RTC
concluded that even assuming that Po was not the lawful owner,
his actual physical possession of the subject property created the
presumption that he was entitled to its possession thereof.
Fairland filed a motion for reconsideration15 attaching its
condominium certificate of title16 over the subject property, but it
was denied by the RTC in its Order,17 dated February 24, 2014.
Undaunted, Fairland filed a petition for review18 under Rule 42 of
the Rules of Court before the CA.
The Ruling of the Court of Appeals
In the assailed Decision, dated October 31, 2014, the CA
dismissed the petition and ruled that an action for unlawful
detainer would not lie against Po. Notwithstanding the
abbreviated proceeding it ordained and the limited pleadings it
allowed, the Rules on Summary Procedure did not relax the rules
on evidence. In order for an action for recovery of possession to
prosper, it was indispensable that he who brought the action
should prove not only his ownership but also the identity of the
property claimed. The CA concluded, however, that Fairland
failed to discharge such bounden duty.
Fairland filed its motion for reconsideration, but it was denied by
the CA in its assailed Resolution, dated March 6, 2015.
Hence, this petition.
ARGUMENTS/DISCUSSIONS
I withholding of possession, bring an action in the proper
IN AN EJECTMENT CASE WHEREIN NO ANSWER WAS
SEASONABLY FILED, IT IS AN ERROR OF LAW TO BASE
JUDGMENT ON PREPONDERANCE OF EVIDENCE
II
HOLDING THAT EVIDENCE IN AN EJECTMENT CASE SHOULD
HAVE BEEN ATTACHED TO THE COMPLAINT IS AN ERROR
OF LAW.19ChanRoblesVirtualawlibrary
Fairland argues that in ejectment cases, presentation of evidence
was undertaken through the submission of position papers but
the same was dispensed with when the defendant failed to file
an answer or when either party failed to appear during the
preliminary conference. In an ejectment case, the scope of
inquiry should be limited to the sufficiency of the cause of action
stated in the complaint when no seasonable answer was filed.
The attachment of documentary evidence to the Complaint was
not a requirement and was even proscribed by law.
In his Comment,20 Po countered that the present petition raised
a question of fact. Although couched in different words, the
issues raised here were substantially the same as the issues
raised before the CA. There was no legal basis in Fairland's
assertion that evidence was dispensed with when no answer to
the complaint had been filed. Such argument would undermine
the inherent authority of the courts to resolve legal issues based
on the facts of the case and on the rules on evidence. Contrary to
Fairland's position, the court decided the case on the basis of the
complaint which was found wanting in preponderance of
evidence.
In its Reply,21 Fairland posited that the petition did not raise
mere questions of fact but one of law as what was being sought
for review was the erroneous dismissal of the ejectment case for
lack of preponderance of evidence. Since no answer was filed
and the complaint sufficiently alleged a cause of action for
unlawful detainer, it became the duty of the MeTC to decide the
case in its favor.
The Court's Ruling
The petition is meritorious.
Complaint has a valid cause of action for Unlawful Detainer
Section 1 of Rule 70 of the Rules of Court lays down the
requirements for filing a complaint for unlawful detainer, to wit:
Section 1. - Who may institute proceedings, and when. - Subject
to the provision of the next succeeding section, a person
deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee, or other person against whom the possession of any
land or building is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue of any
contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person, may,
at any time within one (l) year after such unlawful deprivation or
Municipal Trial Court against the person or persons unlawfully
withholding or depriving of possession, or any person or persons
claiming under them, for the restitution of such possession,
together with damages and costs.
Stated differently, unlawful detainer is a summary action for the
recovery of possession of real property. This action may be filed
by a lessor, vendor, vendee, or other person from whom the
possession of any land or building is unlawfully withheld after
the expiration or termination of the right to hold possession by
virtue of any contract, express or implied. The possession of the
defendant was originally legal, as his possession was permitted
by the plaintiff on account of an express or implied contract
between them. The defendant's possession, however, became
illegal when the plaintiff demanded that the defendant vacate
the subject property due to the expiration or termination of the
right to possess under the contract, and the defendant refused
to heed such demand. A case for unlawful detainer must be
instituted one year from the unlawful withholding of
possession.22
A complaint sufficiently alleges a cause of action for unlawful
detainer if it recites the following: (1) initially, possession of the
property by the defendant was by contract with or by tolerance
of the plaintiff; (2) eventually, such possession became illegal
upon notice by the plaintiff to the defendant of the termination
of the latter's right of possession; (3) thereafter, the defendant
remained in possession of the property, and deprived the
plaintiff of the enjoyment thereof; and (4) within one (1) year
from the last demand on defendant to vacate the property, the
plaintiff instituted the complaint for ejectment.23
There is no question that the complaint filed by Fairland
adequately alleged a cause of action for unlawful detainer. The
pertinent portion of the said complaint reads:
xxx
3. Plaintiff is the owner of, and had been leasing to the
defendant, the premises mentioned above as the residence of
the latter;
4. There is no current written lease contract between plaintiff and
the defendant, but the latter agreed to pay the former the
amount of Php2o,ooo.oo as rent at the beginning of each
month. Thus, the term of the lease agreement is renewable on a
month-to-month basis;
5. Since March 2011, defendant has not been paying the
aforesaid rent despite plaintiffs repeated demands;
6. Due to defendant's continuous failure to pay rent, plaintiff
reached a decision not to renew the lease agreement. It sent a
formal letter, x x x demanding defendant to pay the amount of
Php220,000.00, representing defendant's twelve month rental
arrears beginning January 2011, and to vacate the leased
premises, both within fifteen (15) days from receipt of said letter;
7. Despite receipt of the aforesaid demand letter and lapse of the
fifteen day period given to comply with plaintiffs demand,
defendant neither tendered payment for the unpaid rent nor
vacated the leased premises. Worse, defendant has not been
paying rent up to now;
x x x24ChanRoblesVirtualawlibrary
The above-cited portions of the complaint sufficiently alleged
that Fairland was the owner of the subject property being leased
to Po by virtue of an oral agreement. There was a demand by
Fairland for Po to pay rent and vacate before the complaint for
unlawful detainer was instituted. The complaint was seasonably
filed within the one-year period prescribed by law. With all the
elements present, there was clearly a cause of action in the
complaint for unlawful detainer.
Under the Rules of Summary Procedure, the weight of evidence is
not considered when a judgment is rendered based on the
complaint
The question now is whether the MeTC correctly dismissed the
case for lack of preponderance of evidence. Fairland posits that
judgment should have been rendered in its favor on the basis of
the complaint itself and not on its failure to adduce proof of
ownership over the subject property.
The Court agrees with Fairland's position.
The summons, together with the complaint and its annexes, was
served upon Po on December 28, 2012. This presupposes that
the MeTC found no ground to dismiss the action for unlawful
detainer.25Nevertheless, Po failed to file his answer on time and
the MeTC had the option to render judgment motu proprio or on
motion of the plaintiff. In relation thereto, Sections 5 and 6 of the
Rules on Summary Procedure provide:
Sec. 5. Answer. - Within ten (10) days from service of summons,
the defendant shall file his answer to the complaint and serve a
copy thereof on the plaintiff. Affirmative and negative defenses
not pleaded therein shall be deemed waived, except for lack of
jurisdiction over the subject matter. Cross-claims and compulsory
counterclaims not asserted in the answer shall be considered
barred. The answer to counterclaims or cross-claims shall be filed
and served within ten (10) days from service of the answer in
which they are pleaded.
Sec. 6. Effect of failure to answer. - Should the defendant fail to
answer the complaint within the period above provided, the
court, motu proprio or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein. The court
may in its discretion reduce the amount of damages and
attorney's fees claimed for being excessive or otherwise
unconscionable, without prejudice to the applicability of Section
4, Rule 18 of the Rules of Court, if there are two or more
defendants.
[Emphasis supplied]
Section 6 is clear that in case the defendant failed to file his
answer, the court shall render judgment, either motu proprio or
upon plaintiffs motion, based solely on the facts alleged in the
complaint and limited to what is prayed for. The failure of the
defendant to timely file his answer and to controvert the claim
against him constitutes his acquiescence to every allegation
stated in the complaint. Logically, there is nothing to be done in
this situation26 except to render judgment as may be warranted
by the facts alleged in the complaint.27
Similarly, under Section 7, Rule 70 of the Rules of Court, which
governs the rules for forcible entry and unlawful detainer, if the
defendant fails to answer the complaint within the period
provided, the court has no authority to declare the defendant in
default. Instead, the court, motu proprio or on motion of the
plaintiff, shall render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for.28
This has been enunciated in the case of Don Tino Realty and
Development Corporation v. Florentino,29citing Bayog v.
Natino,30 where the Court held that there was no provision for an
entry of default under the Rules of Summary Procedure if the
defendant failed to file his answer.
In this case, Po failed to file his answer to the complaint despite
proper service of summons. He also failed to provide a sufficient
justification to excuse his lapses. Thus, as no answer was filed,
judgment must be rendered by the court as may be warranted
by the facts alleged in the complaint.
Failure to attach annexes is not fatal if the complaint alleges a
sufficient cause of action; evidence need not be attached to the
complaint
The lower courts erroneously dismissed the complaint of Fairland
simply on the ground that it failed to establish by preponderance
of evidence its ownership over the subject property. As can be
gleaned above, the rules do not compel the plaintiff to attach his
evidence to the complaint because, at this inception stage, he
only has to file his complaint to establish his cause of action.
Here, the court was only tasked to determine whether the
complaint of Fairland alleged a sufficient cause of action and to
render judgment thereon.
Also, there was no need to attach proof of ownership in the
complaint because the allegations therein constituted a sufficient
cause of action for unlawful detainer. Only when the allegations
in the complaint are insufficient to form a cause of action shall
the attachment become material in the determination thereof.
Even under Section 4 of the Rules of Summary Procedure,31 it is
not mandatory to attach annexes to the complaint.
In the case of Lazaro v. Brewmaster32 (Lazaro), where judgment
was rendered based on the complaint due to the failure of the
defendant to file an answer under the Rules of Summary
Procedure, it was written that:
x x x To determine whether the complaint states a cause of
action, all documents attached thereto may, in fact, be
considered, particularly when referred to in the complaint. We
emphasize, however, that the inquiry is into the sufficiency,
not the veracity of the material allegations in the complaint.
Thus, consideration of the annexed documents should only
be taken in the context of ascertaining the sufficiency of the
allegations in the complaint.
[Emphasis supplied]
In Lazaro, the assailed invalid invoices attached to the complaint
were not considered because the complaint already alleged a
sufficient cause of action for collection of sum of money. Those
assailed documents were not the bases of the plaintiffs action for
sum of money, but were only attached to the complaint to
provide evidentiary details on the alleged transactions.
Similarly, in the case at bench, there was no need for
documentary attachments to prove Fairland's ownership over the
subject property. First, the present action is an action for
unlawful detainer wherein only de facto or material possession is
required to be alleged. Evidently, the attachment of any deed of
ownership to the complaint is not indispensable because an
action for unlawful detainer does not entirely depend on
ownership.
Second, Fairland sufficiently alleged ownership and superior right
of possession over the subject property. These allegations were
evidently manifest in the complaint as Fairland claimed to have
orally agreed to lease the property to Po. The Court is of the view
that these allegations were clear and unequivocal and did not
need supporting attachments to be considered as having
sufficiently established its cause of action. Even the MeTC
conceded that the complaint of Fairland stated a valid cause of
action for unlawful detainer.33 It must be stressed that inquiry
into the attached documents in the complaint is for the
sufficiency, not the veracity, of the material allegations in the
complaint.
Third, considering that Po failed to file an answer within the
prescribed period, he was deemed to have admitted all the
allegations in the complaint including Fairland's claim of
ownership. To reiterate, the failure of the defendant to timely file
his answer and controvert the claim against him constituted his
acquiescence to every allegation stated in the complaint.
In the Entry of Appearance with Motion for Leave of Court to file
Comment/Opposition to Motion to Render Judgment, which was
belatedly filed and so was denied by the MeTC, Po merely denied
the allegations against him without even bothering to aver why
he claimed to have a superior right of possession of the subject
property.34
Fourth, it is only at the later stage of the summary procedure
when the affidavits of witnesses and other evidence on factual
issues shall be presented before the court. Sections 8 and 9 of
the Rules on Summary Procedure state:
Sec. 8. Record of preliminary conference. - Within five (5) days
after the termination of the preliminary conference, the court
shall issue an order stating the matters taken up therein, x x x
Sec. 9. Submission of affidavits and position papers. - Within ten
(10) days from receipt of the order mentioned in the next
preceding section, the parties shall submit the affidavits of their
witnesses and other evidence on the factual issues defined in
the order, together with their position papers setting forth the
law and the facts relied upon by them.
[Emphasis supplied]
Again, it is worth stressing that these provisions are exactly
Sections 9 and 10 under Rule 70 of the Rules of Court.
Accordingly, it is only at this part of the proceedings that the
parties will be required to present and offer their evidence before
the court to establish their causes and defenses. Before the
issuance of the record of preliminary conference, the parties are
not yet required to present their respective evidence.
These specific provisions under the Rules of Summary Procedure
which are also reflected in Rule 70 of the Rules of Court, serve
their purpose to immediately settle ejectment proceedings.
"Forcible entry and unlawful detainer cases are summary
proceedings designed to provide for an expeditious means of
protecting actual possession or the right to possession of the
property involved. It does not admit of a delay in the
determination thereof. It is a 'time procedure' designed to
remedy the situation.35 Thus, as a consequence of the
defendant's failure to file an answer, the court is simply tasked to
render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein.
As the complaint contains a valid cause of action, a judgment can
already be rendered
In order to achieve an expeditious and inexpensive
determination of unlawful detainer cases, a remand of this case
to the lower courts is no longer necessary and the case can be
determined on its merits by the Court.
To recapitulate, as Po failed to file his answer on time, judgment
shall be rendered based only on the complaint of Fairland
without the need to consider the weight of evidence. As
discussed above, the complaint of Fairland had a valid cause of
action for unlawful detainer.
Consequently, there is no more need to present evidence to
establish the allegation of Fairland of its ownership and superior
right of possession over the subject property. Po's failure to file
an answer constitutes an admission of his illegal occupation due
to his non-payment of rentals, and of Fairland's rightful claim of
material possession. Thus, judgment must be rendered finding
that Fairland has the right to eject Po from the subject property.
The Judicial Affidavit Rule
On a final note, the Court deems it proper to discuss the
relevance of the Judicial Affidavit Rule or A.M. No. 12-8-8-SC,
where documentary or object evidence are required to be
attached. To begin with, the rule is not applicable because such
evidence are required to be attached to a judicial affidavit, not to
a complaint. Moreover, as the rule took effect only on January 1,
2013, it cannot be required in this case because this was earlier
filed on December 12, 2012.
Granting that it can be applied retroactively, the rule being
essentially remedial, still it has no bearing on the ruling of this
Court.
In the Judicial Affidavit Rule, the attachments of documentary or
object evidence to the affidavits is required when there would be
a pre-trial or preliminary conference or the scheduled
hearing. As stated earlier, where a defendant fails to file an
answer, the court shall render judgment, either motu proprio or
upon plaintiffs motion, based solely on the facts alleged in the
complaint and limited to what is prayed for. Thus, where there is
no answer, there is no need for a pre-trial, preliminary
conference or hearing. Section 2 of the Judicial Affidavit Rule
reads:
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of
direct testimonies. - (a) The parties shall file with the court and
serve on the adverse party, personally or by licensed courier
service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and
incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take
the place of such witnesses' direct testimonies; and
(2) The parties' documentary or object evidence, if any,
which shall be attached to the judicial affidavits and
marked as Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as Exhibits 1, 2, 3, and so
on in the case of the respondent or the defendant.
(b) Should a party or a witness desire to keep the original
document or object evidence in his possession, he may, after the
same has been identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or reproduction
attached to such affidavit is a faithful copy or reproduction of
that original. In addition, the party or witness shall bring the
original document or object evidence for comparison during the
preliminary conference with the attached copy, reproduction, or
pictures, failing which the latter shall not be admitted.
This is without prejudice to the introduction of secondary
evidence in place of the original when allowed by existing rules.
WHEREFORE, the petition is GRANTED. The October 31, 2014
Decision and the March 6, 2015 Resolution of the Court of
Appeals in CA-G.R. SP No. 134701 are
hereby REVERSED and SET ASIDE. Respondent Arturo Loo Po
is ORDERED TO VACATE Condominium Unit No. 205 located in
Cedar Mansion II on Ma. Escriba Street, Pasig City.
Respondent Po is further ORDERED TO PAY the rentals-in-
arrears, as well as the rentals accruing in the interim until he
vacates the property. The unpaid rentals shall incur a legal
interest of six percent (6%) per annum from January 30, 2012,
when the demand to pay and to vacate was made, up to the
finality of this decision. Thereafter, an interest of six percent (6%)
per annum shall be imposed on the total amount due until full
payment is made.
SO ORDERED.chanroblesvirtuallawlibrary
G.R. No. 214054, August 05, 2015
NG MENG TAM, Petitioner, v. CHINA BANKING
CORPORATION, Respondent.
DECISION
VILLARAMA, JR., J.:
Before this Court is a direct recourse from the Regional Trial
Court (RTC) via petition1 for review on the question of whether
Section 52 of the Judicial Affidavit Rule (JAR) applies to hostile or
adverse witnesses. The petition seeks to annul and set aside the
May 28, 20143 and August 27, 20144 Orders of the RTC, Branch
139, Makati City in Civil Case No. 08-1028.
This case stemmed from a collection suit filed by China Banking
Corporation (China Bank) against Ever Electrical Manufacturing
Company Inc. (Ever), the heirs of Go Tong, Vicente Go, George
Go and petitioner Ng Meng Tam sometime in December
2008. China Bank alleged that it granted Ever a loan amounting
to P5,532,331.63. The loan was allegedly backed by two surety
agreements executed by Vicente, George and petitioner in its
favor, each for P5,000,000.00, and dated December 9, 1993 and
May 3, 1995, respectively. When Ever defaulted in its payment,
China Bank sent demand letters collectively addressed to
George, Vicente and petitioner. The demands were
unanswered. China Bank filed the complaint for collection
docketed as Civil Case No. 08-1028, which was raffled off to RTC
Branch 62, Makati City.
In his Answer, petitioner alleged that the surety agreements were
null and void since these were executed before the loan was
granted in 2004. Petitioner posited that the surety agreements
were contracts of adhesion to be construed against the entity
which drafted the same. Petitioner also alleged that he did not
receive any demand letter.
In the course of the proceedings, petitioner moved that his
affirmative defenses be heard by the RTC on the ground that the
suit is barred by the statute of limitations and laches.5 The
motion was denied by the court.6 On appeal, the Court of
Appeals (CA) in its December 22, 2010 Decision7 ruled that a
preliminary hearing was proper pursuant to Section 6,8 Rule 16 of
the Rules of Court due to the grounds cited by petitioner. There
being no appeal, the decision became final and executory on
August 28, 2011.9redarclaw
On March 15, 2011, petitioner served interrogatories to
parties10 pursuant to Sections 111 and 6,12 Rule 25 of the Rules of
Court to China Bank and required Mr. George C. Yap, Account
Officer of the Account Management Group, to answer.
On June 22, 2011, George Yap executed his answers to
interrogatories to parties.13redarclaw
In the meantime, having failed mediation and judicial dispute
resolution, Civil Case No. 08-1028 was re-raffled off to RTC
Branch 139, Makati City.
Petitioner again moved for the hearing of his affirmative
defenses. Because he found Yap’s answers to the interrogatories
to parties evasive and not responsive, petitioner applied for the
issuance of a subpoena duces tecum and ad testificandum against
George Yap pursuant to Section 6,14 Rule 25 of the Revised Rules
of Court.
On April 29, 2014, when the case was called for the presentation
of George Yap as a witness, China Bank objected citing Section 5
of the JAR. China Bank said that Yap cannot be compelled to
testify in court because petitioner did not obtain and present
George Yap’s judicial affidavit. The RTC required the parties to
submit their motions on the issue of whether the preparation of
a judicial affidavit by George Yap as an adverse or hostile witness
is an exception to the judicial affidavit rule.15redarclaw
Petitioner contended that Section 5 does not apply to Yap
because it specifically excludes adverse party witnesses and
hostile witnesses from its application. Petitioner insists that Yap
needed to be called to the stand so that he may be qualified as a
hostile witness pursuant to the Rules of Court.
China Bank, on the other hand, stated that petitioner’s
characterization of Yap’s answers to the interrogatories to parties
as ambiguous and evasive is a declaration of what type of
witness Yap is. It theorizes that the interrogatories to parties
answered by Yap serve as the judicial affidavit and there is no
need for Yap to be qualified as a hostile witness.
In its May 28, 2014 Order, the RTC denied for lack of merit
petitioner’s motion to examine Yap without executing a judicial
affidavit. The RTC in interpreting Section 5 of the JAR
stated:LawlibraryofCRAlaw
x x x The aforementioned provision, which allows the requesting
party to avail himself of the provisions of Rule 21 of the Rules of
Court finds applicability to: (a) a government employee or
official, or the requested witness, who is neither the witness of
the adverse party nor a hostile witness and (b) who unjustifiably
declines to execute a judicial affidavitor refuses without just
cause to make the relevant books, documents, or other things
under his control available for copying, authentication, and
eventual production in court.
In the case at bar, witness George Yap is being utilized as an
adverse witness for the [petitioner]. Moreover, there was no
showing that he unjustifiably declines to execute a judicial
affidavit. In fact, it was [China Bank]’s counsel who insisted that
said witness’ judicial affidavit be taken. Thus, Section 5 of the
[JAR] which [petitioner] invoked to exempt him from the Rule
finds no application. Unless there is contrary ruling on the
matter by the Supreme Court, this court has no choice but to
implement the rule as written.
On this note, this Court also finds no merit on the contention of
[China Bank] that the answer to the written interrogatories by
witness George Yap already constitutes his judicial affidavit.
Inasmuch as the Court strictly implemented the [JAR] on the part
of [petitioner], so shall it rule in the same manner on the part of
[China Bank]. As correctly pointed out by [petitioner], the said
answer to interrogatories does not comply with Section 3 of the
[JAR] which provides for the contents of the judicial affidavit.16
In essence, the RTC ruled that Section 5 did not apply to Yap
since he was an adverse witness and he did not unjustifiably
decline to execute a judicial affidavit. It
stated:LawlibraryofCRAlaw
In view of the foregoing, the motion of the [petitioner] that
witness George Yap be examined without executing a Judicial
Affidavit is hereby DENIED FOR LACK OF MERIT.17
Petitioner moved for reconsideration but it was denied by the
RTC in its August 27, 2014 Order.18 The RTC reiterated its
position and stated:LawlibraryofCRAlaw
It must be pointed out that the [petitioner] [was] the [one] who
invoked the provisions of Section 5 of the [JAR] to compel the
attendance of witness George Yap and as such, it is their duty to
show the applicability of the said provisions to the case at
bar. As stated in the challenged Order, Section 5 of the [JAR]
finds applicability to: (a) a government employee or official, or
the requested witness, who is neither the witness of the adverse
party nor a hostile witness and (b) who unjustifiably declines to
execute a judicial affidavit or refuses without just cause to make
the relevant books, documents, or other things under his control
available for copying, authentication, and eventual production in
court. In the case at bar, [petitioner] [does] not deny that witness
George Yap is to be utilized as [his] adverse witness. On this
score alone, it is clear that the provisions invoked do not apply.19
The RTC stressed that Section 5 of the JAR required the
requested witness’ refusal to be unjustifiable. It
stated:LawlibraryofCRAlaw
x x x the [JAR] requires that the refusal must
be unjustifiable and without just cause. It must be pointed out
that [China Bank]’s previous motions to quash the subpoena was
grounded on the claim that having already submitted to this
court his sworn written interrogatories, his being compelled to
testify would be unreasonable, oppressive and pure harassment.
Thus, witness’ refusal to testify cannot be considered
unjustifiable since he raised valid grounds.20
Hence, this petition.
Petitioner contends that the RTC committed a grave error when
it interpreted Section 5 to include adverse party and hostile
witnesses. Based on the wording of Section 5, adverse party and
hostile witnesses are clearly excluded.
China Bank asserts that Yap neither refused unjustifiably nor
without just cause refused to a judicial affidavit. It cited the
RTC’s August 27, 2014 Order where the court said that Yap had
answered the interrogatories and to compel him to testify in
open court would be “unreasonable, oppressive and pure
harassment.” Moreover, it stated that based on the language
used by Section 2 of the JAR the filing of judicial affidavits is
mandatory.
The petition is anchored on the following
arguments:LawlibraryofCRAlaw
I The JAR primarily affects the manner by which evidence is
RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT
INTERPRETED SEC. 5 OF THE [JAR] CONTRARY TO ITS
WORDINGS.
II
RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT
INTERPRETED SEC. 5 [OF THE JAR] CONTRARY TO ITS PRACTICAL
INTENTION AND COMMON SENSE.
III
RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT
EFFECTIVELY DISREGARDED THE RELEVANT RULES ON MODE OF
DISCOVERY WHICH GOVERN THE PRESENTATION OF ADVERSE
WITNESSES.
IV
ON A POLICY LEVEL AND IN THE EVENT RTC BR. 139-MAKATI’S
INTERPRETATION AND APPLICATION OF SEC. 5 OF THE [JAR] IS
CORRECT (I.E., THAT OPPOSING PARTY WHO INTENDS TO
PRESENT ADVERSE OR HOSTILE WITNESS MUST GET AND
SUBMIT THAT WITNESS’ JUDICIAL AFFIDAVIT NO MATTER
WHAT) IT IS HUMBLY SUBMITTED, WITH THE UTMOST
INDULGENCE OF THE HONORABLE SUPREME COURT, THAT THE
SAME RULE BE IMPROVED OR AMENDED BY PROVIDING
SANCTIONS IN THE EVENT THE ADVERSE OR HOSTILE WITNESS
REFUSES TO ANSWER OR EXECUTE JUDICIAL AFFIDAVIT AS
REQUIRED BY THE OPPOSING PARTY.21
We grant the petition.
THE JUDICIAL AFFIDAVIT RULE
APPLIES TO PENDING CASES
On September 4, 2012, the JAR was promulgated to address case
congestion and delays in courts. To this end, it seeks to reduce
the time needed to take witnesses’ testimonies.22 The JAR took
effect on January 1, 2013 and would also apply to pending cases
pursuant to Section 12 to wit:LawlibraryofCRAlaw
Sec. 12. Effectivity. – This rule shall take effect on January 1,
2013 following its publication in two newspapers of general
circulation not later than September 15, 2012. It shall also
apply to existing cases. (Emphasis supplied)
The Court En Banc gave public prosecutors in first and second
level courts one year of modified compliance.23 The JAR thus
took full effect on January 1, 2014.
Here, parties were presenting their evidence for the RTC’s
consideration when the JAR took effect. Therefore, pursuant to
Section 12 the JAR applies to the present collection suit.
SECTION 5 OF THE JAR DOES NOT
APPLY TO ADVERSE PARTY WITNESSES
presented in court. Section 2(a) of the JAR provides that judicial
affidavits are mandatorily filed by parties to a case except in
small claims cases. These judicial affidavits take the place of
direct testimony in court. It provides:LawlibraryofCRAlaw
Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of
direct testimonies. – (a) The parties shall file with the court and
serve on the adverse party, personally or by licensed courier
service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and
incidents, the following:LawlibraryofCRAlaw
(1) The judicial affidavits of their witnesses, which shall take the
place of such witnesses’ direct testimonies; and
(2) The parties’ documentary or object evidence, if any, which
shall be attached to the judicial affidavits and marked as Exhibits
A, B, C, and so on in the case of the complainant or the plaintiff,
and as Exhibits 1, 2, 3, and so on in the case of the respondent or
the defendant.
xxxx
Section 324 of the JAR enumerates the content of a judicial
affidavit.
Under Section 10,25 parties are to be penalized if they do not
conform to the provisions of the JAR. Parties are however
allowed to resort to the application of a subpoena pursuant to
Rule 21 of the Rules of Court in Section 5 of the JAR in certain
situations. Section 5 provides:LawlibraryofCRAlaw
Sec. 5. Subpoena. – If the government employee or official, or the
requested witness, who is neither the witness of the adverse
party nor a hostile witness, unjustifiably declines to execute a
judicial affidavit or refuses without just cause to make the
relevant books, documents, or other things under his control
available for copying, authentication, and eventual production in
court, the requesting party may avail himself of the issuance of a
subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court. The rules governing the issuance of a subpoena
to the witness in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit shal1 be
understood to be ex parte.
While we agree with the RTC that Section 5 has no application to
Yap as he was presented as a hostile witness we cannot agree
that there is need for a finding that witness unjustifiably refused
to execute a judicial affidavit.
Section 5 of the JAR contemplates a situation where there is a (a)
government employee or official or (b) requested witness who
is not the (1) adverse party’s witness nor (2) a hostile witness. If
this person either (a) unjustifiably declines to execute a judicial
affidavit or (b) refuses without just cause to make the relevant
documents available to the other party and its presentation to
court, Section 5 allows the requesting party to avail of issuance
of subpoena ad testificandum or duces tecum under Rule 21 of
the Rules of Court. Thus, adverse party witnesses and hostile
witnesses being excluded they are not covered by Section
5. Expressio unius est exclusion alterius: the express mention of
one person, thing, or consequence implies the exclusion of all
others.26redarclaw
Here, Yap is a requested witness who is the adverse party’s
witness. Regardless of whether he unjustifiably declines to
execute a judicial affidavit or refuses without just cause to
present the documents, Section 5 cannot be made to apply to
him for the reason that he is included in a group of individuals
expressly exempt from the provision’s application.
The situation created before us begs the question: if the
requested witness is the adverse party’s witness or a hostile
witness, what procedure should be followed?
The JAR being silent on this point, we turn to the provisions
governing the rules on evidence covering hostile witnesses
specially Section 12, Rule 132 of the Rules of Court which
provides:LawlibraryofCRAlaw
SEC. 12. Party may not impeach his own witness. – Except with
respect to witnesses referred to in paragraphs (d) and (e) of
Section 10, the party producing a witness is not allowed to
impeach his credibility.
A witness may be considered as unwilling or hostile only if so
declared by the court upon adequate showing of his adverse
interest, unjustified reluctance to testify, or his having misled the
party into calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who
is an adverse party, may be impeached by the party presenting
him in all respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party, but such
cross-examination must only be on the subject matter of his
examination-in-chief.
Before a party may be qualified under Section 12, Rule 132 of the
Rules of Court, the party presenting the adverse party witness
must comply with Section 6, Rule 25 of the Rules of Court which
provides:LawlibraryofCRAlaw
SEC. 6. Effect of failure to serve written interrogatories. – Unless
thereafter allowed by the court for good cause shown and to
prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to
give testimony in open court, or to give a deposition pending
appeal.
In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court
stated that “in civil cases, the procedure of calling the adverse
party to the witness stand is not allowed, unless written
interrogatories are first served upon the latter.”28 There
petitioners Spouses Afulugencia sought the issuance of
a subpoena duces tecum and ad testificandum to compel the
officers of the bank to testify and bring documents pertaining to
the extrajudicial foreclosure and sale of a certain parcel of
land. Metrobank moved to quash the issuance of the subpoenas
on the ground of non-compliance with Section 6, Rule 25 of the
Rules of Court. In quashing the issuance of the subpoena, the
Court reminded litigants that the depositions are a mechanism
by which fishing expeditions and delays may be avoided. Further
written interrogatories aid the court in limiting harassment and
to focus on what is essential to a case. The Court
stated:LawlibraryofCRAlaw
One of the purposes of the above rule is to prevent fishing
expeditions and needless delays; it is there to maintain order and
facilitate the conduct of trial. It will be presumed that a party
who does not serve written interrogatories on the adverse party
beforehand will most likely be unable to elicit facts useful to its
case if it later opts to call the adverse party to the witness stand
as its witness. Instead, the process could be treated as a fishing
expedition or an attempt at delaying the proceedings; it
produces no significant result that a prior written interrogatories
might bring.
Besides, since the calling party is deemed bound by the adverse
party’s testimony, compelling the adverse party to take the
witness stand may result in the calling party damaging its own
case. Otherwise stated, if a party cannot elicit facts or
information useful to its case through the facility of written
interrogatories or other mode of discovery, then the calling of
the adverse party to the witness stand could only serve to
weaken its own case as a result of the calling party’s being
bound by the adverse party’s testimony, which may only be
worthless and instead detrimental to the calling party’s cause.

Another reason for the rule is that by requiring prior written

interrogatories, the court may limit the inquiry to what is
relevant, and thus prevent the calling party from straying or
harassing the adverse party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from
unwarranted surprises or harassment; it likewise prevents the
calling party from conducting a fishing expedition or bungling its
own case. Using its own judgment and discretion, the court can
hold its own in resolving a dispute, and need not bear witness to
the parties perpetrating unfair court practices such as fishing for
evidence, badgering, or altogether ruining their own cases.
Ultimately, such unnecessary processes can only constitute a
waste of the court’s precious time, if not pointless
entertainment.29 (Citation omitted)

In this case, parties, with the approval of the Court, furnished and
answered interrogatories to parties pursuant to Rule 25 of the
Rules of Court. They therefore complied with Section 6 of Rule
25 of the Rules of Court. Before the present controversy arose,
the RTC had already issued subpoenas for Yap to testify and
produce documents. He was called to the witness stand when
China Bank interposed its objection for non-compliance with
Section 5 of the JAR. Having established that Yap, as an adverse
party witness, is not within Section 5 of the JAR’s scope, the rules
in presentation of adverse party witnesses as provided for under
the Rules of Court shall apply. In keeping with this Court’s
decision in Afulugencia,there is no reason for the RTC not to
proceed with the presentation of Yap as a witness.

In sum, Section 5 of the JAR expressly excludes from its

application adverse party and hostile witnesses. For the
presentation of these types of witnesses, the provisions on the
Rules of Court under the Revised Rules of Evidence and all other
correlative rules including the modes of deposition and discovery
rules shall apply.

WHEREFORE, the petition is GRANTED. The May 28, 2014 and

August 27, 2014 Orders of the Regional Trial Court, Branch 139,
Makati City are hereby ANNULLED and SET ASIDE.

No pronouncement as to costs.

SO ORDERED.cralawlawlibra
 Fairland Knitcraft Corporation v. Arturo Loo Po
G.R. No. 217694
January 27, 2016
Unlawful Detainer
Facts:
 Fairland alleged it was the owner of a condominium unit in
Cedar Mansion II in Pasig City. The said unit was leased by
Fairland to Po by verbal agreement, with a rental fee of
P20,000 a month.
 Po continuously failed to pay rent. Thus, Fairland opted not
to renew the lease agreement anymore.
 Fairland sent a formal letter to Po demanding he pay
P220,000, representing the rental arrears, and that he vacate
the leased premises within 15 days from receipt of the letter.
 Despite receipt and the lapse of the said 15-day period, Po
neither tendered payment nor vacated the premises. Thus,
Fairland filed the complaint for unlawful detainer before
the MeTC.
 Po failed to file an answer within the reglementary
period (within 10 days from service of summons). Thus,
Fairland filed a motion to render judgment and the MeTC
considered the case submitted for decision.
 The MeTC dismissed the complaint for lack of merit due to
Fairland’s failure to prove its claim by preponderance of
evidence.
 Fairland appealed, claiming that an unlawful detainer case
was a special civil action governed by summary procedure.
Thus, in cases where a defendant failed to file his answer,
judgment should be based on the facts alleged in the
complaint, and there was no requirement that judgment
must be based on facts proved by preponderance of
evidence.
 The RTC and CA affirmed. Hence, this petition.
Issues:
1. Whether or not Fairland’s complaint sufficiently alleges a cause
of action for unlawful detainer – Yes.
2. Whether or not the MeTC correctly rendered judgment, upon
Po’s failure to file an answer on time, based solely on the
complaint without the need to consider the weight of evidence –
Yes.
Held:
1. Yes. A complaint sufficiently alleges a cause of action for
unlawful detainer if it recites the following: (1) initially,
possession of the property by the defendant was by contract
with or by tolerance of the plaintiff; (2) eventually, such
possession became illegal upon notice by the plaintiff to the
defendant of the termination of the latter’s right of possession;
(3) thereafter, the defendant remained in possession of the
property, and deprived the plaintiff of the enjoyment thereof;
and (4) within 1 year from the last demand on defendant to
vacate the property, the plaintiff instituted the complaint for
ejectment.
There is no question that the complaint filed by Fairland
adequately alleged a cause of action for unlawful detainer.1
1
The pertinent portion of the complaint reads:
The above-cited portions of the complaint sufficiently alleged
that Fairland was the owner of the subject property being
leased to Po by virtue of an oral agreement. There was a
demand by Fairland for Po to pay rent and vacate before the
complaint for unlawful detainer was instituted. The
complaint was seasonably filed within the one-year period
prescribed by law. With all the elements present, there was
clearly a cause of action in the complaint for unlawful
detainer.
2. Yes. Under the Rules of Summary Procedure, the weight of
evidence is not considered when a judgment is rendered
based on the complaint.
Section 6 of the Rules on Summary Procedure provide:
Sec. 6. Effect of failure to answer. – Should the
defendant fail to answer the complaint within the
period above provided, the court, motu proprio or on
motion of the plaintiff, shall render judgment as may
be warranted by the facts alleged in the complaint
and limited to what is prayed for therein. x x x
Section 6 is clear that in case the defendant failed to file his
answer, the court shall render judgment, either motu proprio
or upon plaintiff’s motion, based solely on the facts alleged in
the complaint and limited to what is prayed for. The failure of
the defendant to timely file his answer and to controvert the
claim against him constitutes his acquiescence to every
allegation stated in the complaint.
Similarly, under Section 7, Rule 70, if the defendant fails to
answer the complaint within the period provided, the court
has no authority to declare the defendant in default. Instead,
the court, motu proprio or on motion of the plaintiff, shall
render judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for.
xxx
3. Plaintiff is the owner of, and had been leasing to the defendant, the
premises mentioned above as the residence of the latter;
4. There is no current written lease contract between plaintiff and the
defendant, but the latter agreed to pay the former the amount of P20,000 as
rent at the beginning of each month. Thus, the term of the lease agreement is
renewable on a month-to-month basis;
5. Since March 2011, defendant has not been paying the aforesaid rent
despite plaintiff’s repeated demands;
6. Due to defendant’s continuous failure to pay rent, plaintiff reached a
decision not to renew the lease agreement. It sent a formal letter, x x x
demanding defendant to pay the amount of Php220,000.00, representing
defendant’s twelve month rental arrears beginning January 2011, and to
vacate the leased premises, both within fifteen (15) days from receipt of said
letter;
7. Despite receipt of the aforesaid demand letter and lapse of the fifteen day
period given to comply with plaintiff’s demand, defendant neither tendered
payment for the unpaid rent nor vacated the leased premises. Worse,
defendant has not been paying rent up to now;
In this case, Po failed to file his answer to the complaint despite
proper service of summons. He also failed to provide a sufficient
justification to excuse his lapses. Thus, as no answer was filed,
judgment must be rendered by the court as may be
warranted by the facts alleged in the complaint.
To recapitulate, as Po failed to file his answer on time, judgment
shall be rendered based only on the complaint of Fairland
without the need to consider the weight of evidence.
Consequently, there is no more need to present evidence to
establish the allegation of Fairland of its ownership and superior
right of possession over the subject property. Po’s failure to file
an answer constitutes an admission of his illegal occupation due
to his non-payment of rentals, and of Fairland’s rightful claim of
material possession. Thus, judgment must be rendered finding
that Fairland has the right to eject Po from the subject property.
WHEREFORE, the petition is GRANTED. The Decision and
Resolution of the Court of Appeals are hereby REVERSED and
SET ASIDE. Respondent Arturo Loo Po is ORDERED TO VACATE
Condominium Unit No. 205 located in Cedar Mansion II on Ma.
Escriba Street, Pasig City.
Respondent Po is further ORDERED TO PAY the rentals-in-
arrears, as well as the rentals accruing in the interim until he
vacates the property.
GR no 214054 aug 5, 2015
Ng Meng Tam Vs. China Banking Corporation
Facts:
China Banking Corporation (respondent) filed a
collection case against Ever Electrical Manufacturing Company,
the heirs of Go Tong, Vicente Go and Ng Meng Tam (petitioner)
for an unpaid loan backed by two sureties executed by Vicente
Go and the petitioner in its favour. Upon default by Ever and
despite demand for payment, petitioner refused to pay hence it
filed the collection suit (Civil Case No. 08-1028), raffled off to RTC
Makati City Branch 62. After filing his Answer in which he denied
liability for the loan and the sureties were mere contracts of
adhesion, Ng Meng Tam moved that his affirmative defences be
heard by the RTC, which the RTC denied. He appealed to the CA,
which ruled that a preliminary hearing is proper. This decision
became final and executory. Ng Meng Tam then served
interrogatories to parties in accordance with Sections 1⁠1and 6⁠2,
Rule 25 of the Rules of Court, to China Bank, requiring George
Yap to file his answer, to which Yap complied on June 23,
2011. When mediation and judicial dispute resolution failed, the
case was assigned to RTC Branch 139. Ng Meng Tam moved for
the hearing of his affirmative defences. Because he found Yap’s
answer to the interrogatories evasive and unresponsive, he
applied for issuance of subpoena ducestecum and ad
testificandum pursuant to Section 6, Rule 25 of the Rules of
Court. During the hearing for the presentation of Yap’s
testimony on April 29, 2014, China Bank objected, averring that
Yap cannot be compelled to testify as the petition did not obtain
and present George Yap’s affidavit, citing Section 5 of the Judicial
Affidavit Rule. Both parties were required by the RTC to present
motions in support of their positions. Ng Meng Tam avers that
Section 5 of JAR does not apply to Yap because it specifically
excludes hostile and adverse witnesses from its application; Yap
needed to be called to the witness stand so he can qualified as a
hostile witness. China Bank argues otherwise; Ng Meng Tam’s
characterisation of Yap’s answers as ambiguous and evasive is a
declaration of what kind of witness Yap is, and his answers to the
interrogatories constitute his judicial affidavit.
The RTC denied petitioner’s motion to examine Yap without a
judicial affidavit ruling that Section 5 of the JAR allowing a
requesting party to avail of the provisions of Rule 21 finds
applicability when the witness is: (a) a government employee or
official, or the requested witness, who is neither the witness of
the adverse party nor a hostile witness and (b) who unjustifiably
declines to execute a judicial affidavit or refuses without just
cause to make the relevant books, documents, or other things
under his control available for copying, authentication, and
eventual production in court. In this case, Yap is being utilised as
a hostile witness, yet there was no showing that he unjustifiably
declined to execute a judicial affidavit. China Bank’s counsel
even insisted that his judicial affidavit be taken. Hence Section 5
does not apply. The RTC also denied China Bank’s averments
that his answers to the interrogatories constitute his judicial
affidavit, as the same does not comply with Section 3 of the JAR.
The RTC denied petitioner’s motion for reconsideration., noting
that the refusal to execute a judicial affidavit must be
unjustifiable and without just cause. After he submitted his
answers to the interrogatories, Yap’s being compelled to testify is
abusive, oppressive and pure harassment.
Ng Meng Tam elevated his case to the Supreme Court on pure
question of law.
ISSUE:
Whether or not Section 5 of the Judicial Affidavit Rule
applies to a hostile or adverse witness.
Ruling:
SECTION 5 OF THE JAR DOES NOTAPPLY TO ADVERSE
PARTY WITNESSES. The JAR primarily affects the manner by
which evidence is presented in court. Section 2(a) of the JAR
provides that judicial affidavits are mandatorily filed by parties to
a case except in small claims cases. These judicial affidavits take
the place of direct testimony in court.While we agree with the
RTC that Section 5 has no application to Yap as he was presented
as a hostile witness we cannot agree that there is need for a
finding that witness unjustifiably refused to execute a judicial
affidavit.
Section 5 of the JAR contemplates a situation where there is a (a)
government employee or official or (b) requested witness who
is not the (1) adverse party’s witness nor (2) a hostile witness. If
this person either (a) unjustifiably declines to execute a judicial
affidavit or (b) refuses without just cause to make the relevant
documents available to the other party and its presentation to
court, Section 5 allows the requesting party to avail of issuance
of subpoena ad testificandum or ducestecum under Rule 21 of
the Rules of Court. Thus, adverse party witnesses and hostile
witnesses being excluded they are not covered by Section
5. Expressiouniusest exclusion alterius: the express mention of
one person, thing, or consequence implies the exclusion of all
others.
Here, Yap is a requested witness who is the adverse party’s
witness. Regardless of whether he unjustifiably declines to
execute a judicial affidavit or refuses without just cause to
present the documents, Section 5 cannot be made to apply to
him for the reason that he is included in a group of individuals
expressly exempt from the provision’s application.
Thus, the rule not only protects the adverse party from
unwarranted surprises or harassment; it likewise prevents the
calling party from conducting a fishing expedition or bungling its
own case. Using its own judgment and discretion, the court can
hold its own in resolving a dispute, and need not bear witness to
the parties perpetrating unfair court practices such as fishing for
evidence, badgering, or altogether ruining their own cases.
Ultimately, such unnecessary processes can only constitute a
waste of the court’s precious time, if not pointless entertainment.

The situation created before us begs the question: if the
requested witness is the adverse party’s witness or a hostile
witness, what procedure should be followed?The JAR being silent
on this point, we turn to the provisions governing the rules on
evidence covering hostile witnesses specially Section 12, Rule
132 of the Rules of Court.
A witness may be considered as unwilling or hostile only if so
declared by the court upon adequate showing of his adverse
interest, unjustified reluctance to testify, or his having misled the
party into calling him to the witness stand.The unwilling or
hostile witness so declared, or the witness who is an adverse
party, may be impeached by the party presenting him in all
respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and
cross-examined by the adverse party, but such cross-examination
must only be on the subject matter of his examination-in-chief.
Before a party may be qualified under Section 12, Rule 132 of the
Rules of Court, the party presenting the adverse party witness
must comply with Section 6, Rule 25 of the Rules of Court
In this case, parties, with the approval of the Court, furnished and
answered interrogatories to parties pursuant to Rule 25 of the
Rules of Court. They therefore complied with Section 6 of Rule
25 of the Rules of Court. Before the present controversy arose,
the RTC had already issued subpoenas for Yap to testify and
produce documents. He was called to the witness stand when
China Bank interposed its objection for non-compliance with
Section 5 of the JAR. Having established that Yap, as an adverse
party witness, is not within Section 5 of the JAR’s scope, the rules
in presentation of adverse party witnesses as provided for under
the Rules of Court shall apply. In keeping with this Court’s
decision in Afulugencia, there is no reason for the RTC not to
proceed with the presentation of Yap as a witness.
In sum, Section 5 of the JAR expressly excludes from its
application adverse party and hostile witnesses. For the
presentation of these types of witnesses, the provisions on the
Rules of Court under the Revised Rules of Evidence and all other
correlative rules including the modes of deposition and discovery
rules shall apply.
WHEREFORE, the petition is GRANTED.

One of the purposes of the above rule is to prevent fishing

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

Besides, since the calling party is deemed bound by the adverse

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

Another reason for the rule is that by requiring prior written

interrogatories, the court may limit the inquiry to what is
relevant, and thus prevent the calling party from straying or
harassing the adverse party when it takes the latter to the stand.