SPOUSES VICENTE AFULUGENCIA and

LETICIA AFULUGENCIA
vs.
METROPOLITAN BANK & TRUST CO. and
EMMANUEL L. ORTEGA

G.R. No. 185145

February 5, 2014
Erven John P. Claros
 Facts
• spouses Vicente and Leticia Afulugencia, filed a Complaint6 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 Regional Trial Court (RTC) of Malolos
City
• After the filing of the parties’ pleadings and with the conclusion of
pre-trial, petitioners filed a Motion for Issuance of Subpoena Duces
Tecum Ad Testificandum7 to require Metrobank’s officers8 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
 notice of hearing
The Branch Clerk of Court
Regional Trial Court
Branch 7, Malolos, Bulacan

Greetings:

Please submit the foregoing motion for the consideration and approval
of the Hon. Court immediately upon receipt hereof.

(signed)
Vicente C. Angeles
• 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.
• Petitioners submitted a Reply12 to Metrobank’s Opposition, stating
that the lack of a proper notice of hearing was cured by the filing of
Metrobank’s Opposition; that applying the principle of liberality, the
defect may be ignored;
• that leave of court is not necessary for the taking of Metrobank’s
officers’ depositions; that for their case, the issuance of a subpoena
is not unreasonable and oppressive, but instead favorable to
Metrobank, since it will present the testimony of these officers just
the same during the presentation of its own evidence;
• that the documents sought to be produced are relevant and will
prove whether petitioners have paid their obligations to Metrobank in
full, and will settle the issue relative to the validity or invalidity of the
foreclosure proceedings; and that the Rules do not prohibit a party
from presenting the adverse party as its own witness.
 Issues
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERRORS IN
REQUIRING NOTICE AND HEARING (SECS. 4 AND 5, RULE 15, RULES OF
COURT) FOR A MERE MOTION FOR SUBPOENA OF RESPONDENT
BANK’S OFFICERS WHEN SUCH REQUIREMENTS APPLY ONLY TO
DEPOSITION UNDER SEC. 6, RULE 25, RULES OF COURT.
II
THE COURT OF APPEALS COMMITTED (REVERSIBLE) ERROR IN
HOLDING THAT THE PETITIONERS MUST FIRST SERVE WRITTEN
INTERROGATORIES TO RESPONDENT BANK’S OFFICERS BEFORE
THEY CAN BE SUBPOENAED.
 Held
• NO
 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.
 Section 6, Rule 25 of the Rules

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.

• the procedure of calling the adverse party to the witness stand is not
allowed, unless written interrogatories are first served upon the
latter.
• 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.

• 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.
 In this 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 improper. Petitioners may not be allowed, at the
incipient phase of the presentation of their evidence-in-chief at that,
to present Metrobank’s officers – who are considered adverse
parties as well, based on the principle that corporations act only
through their officers and duly authorized agents34 – as their main
witnesses; nor may they be allowed to gain access to Metrobank’s
documentary evidence for the purpose of making it their own. 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.
• It is true that under the Rules, a party may, for good cause shown and to
prevent a failure of justice, be compelled to give testimony in court by the
adverse party who has not served written interrogatories. But what
petitioners seek goes against the very principles of justice and fair play; they
would want that Metrobank provide the very evidence with which to
prosecute and build their case from the start. This they may not be allowed
to do.
• Finally, the Court may not turn a blind eye to the possible consequences of
such a move by petitioners. As one of their causes of action in their
Complaint, petitioners claim that they were not furnished with specific
documents relative to their loan agreement with Metrobank at the time they
obtained the loan and while it was outstanding. If Metrobank were to
willingly provide petitioners with these documents even before petitioners
can present evidence to show that indeed they were never furnished the
same, any inferences generated from this would certainly not be useful for
Metrobank. One may be that by providing petitioners with these documents,
Metrobank would be admitting that indeed, it did not furnish petitioners with
these documents prior to the signing of the loan agreement, and while the
loan was outstanding, in violation of the law.