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Petitioner Vs Vs Respondent: Third Division
Petitioner Vs Vs Respondent: Third Division
DECISION
GARCIA , J : p
Assailed and sought to be set aside in this petition for review on certiorari under Rule 45 of
the Rules of Court are the following issuances of the Court of Appeals (CA) in CA-G.R. SP
No. 44078, to wit:
1. Decision 1 dated January 20, 1998, affirming an earlier order of the
Regional Trial Court, Branch 152, National Capital Judicial Region, which
admitted the deposition of one Buaneres Corral as part of respondent's
evidence in an action for damages; and
2. Resolution 2 dated March 22, 1998, denying petitioner's motion for
reconsideration.
In its order of February 3, 1997, 8 the trial court admitted, among other evidence,
respondent's Exhibits "DD", "EE" and "BB". With his motion for reconsideration 9 having been
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denied by the court in its subsequent order of March 25, 1997, 1 0 petitioner went on
certiorari to the Court of Appeals in CA-G.R. SP No. 44078, imputing grave abuse of
discretion on the part of the trial court in admitting in evidence the deposition in question
(Exhibits "DD" and "EE").
As stated at the threshold hereof, the appellate court, in the herein assailed decision dated
January 20, 1998, 1 1 upheld the trial court and effectively denied due course to and
dismissed petitioner's recourse, explaining, inter alia, that petitioner's active participation,
through counsel, during the taking of subject deposition and adopting it as his own
exhibits, has thereby estopped him from assailing the admissibility thereof as part of
respondent's evidence. His motion for reconsideration having been denied by the appellate
court in its equally assailed resolution of March 22, 1998, petitioner is now with us via the
instant petition, raising the following issues of his own formulation:
1. Whether or not the requirements of Section 4, Rule 24 (now Section 3) of
the Revised Rules of Court were satisfied by the respondent when it presented a
certification attesting to the fact that deponent has left the country but silent as to
whether or not at the time his deposition was offered in evidence is in the
Philippines
It is petitioner's posture that none of the above conditions exists in this case to justify the
admission in evidence of respondent's Exhibits "DD" and "EE". Hence, it was error for the
appellate court to have upheld the admission thereof by the trial court. Discounting the
probative value of the certification from the Bureau of Immigration (Exh. "BB") that
deponent Buaneres Corral departed for abroad on May 28, 1996, petitioner argues that
said certification merely proves the fact of Corral having left the country on the date
therein mentioned. It does not, however, establish that he has not returned since then and
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is unavailable to be present in court to personally testify. CHDTEA
While depositions may be used as evidence in court proceedings, they are generally not
meant to be a substitute for the actual testimony in open court of a party or witness.
Stated a bit differently, a deposition is not to be used when the deponent is at hand. 1 4
Indeed, any deposition offered during a trial to prove the facts therein set out, in lieu of the
actual oral testimony of the deponent in open court, may be opposed and excluded on the
ground of hearsay. However, depositions may be used without the deponent being called
to the witness stand by the proponent, provided the existence of certain conditions is first
satisfactorily established. Five (5) exceptions for the admissibility of a deposition are
listed in Section 4, Rule 23, supra, of the Rules of Court. Among these is when the witness
is out of the Philippines.
The trial court had determined that deponent Bueneres Corral was abroad when the offer
of his deposition was made. This factual finding of absence or unavailability of witness to
testify deserves respect, having been adequately substantiated. As it were, the
certification by the Bureau of Immigration Exh. "BB" provides that evidentiary support.
Accordingly, the attribution of grave abuse of discretion on the part of the trial court must
be struck down. It has been said to be customary for courts to accept statements of
parties as to the unavailability of a witness as a predicate to the use of depositions. 1 5 Had
deponent Buaneres Corral indeed returned to the Philippines subsequent to his departure
via Flight No. PR 658, petitioner could have presented evidence to show that such was the
case. As it is, however, the petitioner does not even assert the return as a fact, only offering
it as a possibility since no contrary proof had been adduced.
Given the foregoing perspective, the second issue of whether or not petitioner is estopped
from objecting to the use of Corral's deposition as part of respondent's evidence is really
no longer determinative of the outcome of this case, and need not detain us long. Suffice it
to state that, as a rule, the inadmissibility of testimony taken by deposition is anchored on
the ground that such testimony is hearsay, i.e., the party against whom it is offered has no
opportunity to cross-examine the deponent at the time his testimony is offered. But as
jurisprudence teaches, it matters not that opportunity for cross-examination was afforded
during the taking of the deposition; for normally, the opportunity for cross-examination
must be accorded a party at the time the testimonial evidence is actually presented
against him during the trial or hearing. 1 6 In fine, the act of cross-examining the deponent
during the taking of the deposition cannot, without more, be considered a waiver of the
right to object to its admissibility as evidence in the trial proper. In participating, therefore,
in the taking of the deposition, but objecting to its admissibility in court as evidence,
petitioner did not assume inconsistent positions. He is not, thus, estopped from
challenging the admissibility of the deposition just because he participated in the taking
thereof.
Lest it be overlooked, Section 29, Rule 23 of the Rules of Court, no less, lends support to
the conclusion just made. In gist, it provides that, while errors and irregularities in
depositions as to notice, qualifications of the officer conducting the deposition, and
manner of taking the deposition are deemed waived if not objected to before or during the
taking of the deposition, objections to the competency of a witness or the competency,
relevancy, or materiality of testimony may be made for the first time at the trial and need
not be made at the time of the taking of the deposition, unless they could be obviated at
that point. 1 7
1. Penned by Associate Justice Artemon D. Luna (now ret.), with Associate Justices Portia
Alino-Hormachuelos and Roberto A. Barrios, concurring; Rollo, pp. 20-22.
2. Rollo, p. 14.
3. Ibid, pp. 32-38.
4. Id, pp. 44-59; Annex "F", Petition.
5. Id., pp. 60-113; Annex "F-1", Petition.
6. Id., pp. 115-124; Annex "G", Petition.
7. Id., p. 125; Annex "I", Petition.
8. Id, p. 126.
9. Id., pp. 127-129.
10. Id., p. 190.
11. Vide Note #1, supra.
12. Rollo, p. 11.
13. Not Rule 24, as erroneously claimed by petitioner.
14. 23 Am Jur 2d. Depositions and Discovery, Sec. 174.